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ASSAULT SECOND HAS A PERPETRATOR-VICTIM-AGE-DIFFERENCE” ELEMENT; THE PEOPLE FAILED TO PROVE DEFENDANT’S AGE WITH ADMISSIBLE EVIDENCE; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, which has an “victim-perpetrator age-difference” element, determined the age of the defendant was not proven with admissible evidence:​

… [T]he second-degree assault conviction based on the victim and defendant’s respective ages was against the weight of the evidence because the People did not meet their burden to adduce adequate admissible evidence to establish defendant’s age (see Penal Law § 120.05[12] …). The only evidence offered by the People was the testimony of the arresting officer’s partner, who stated that while “assisting with the arrest,” he learned defendant’s date of birth without explaining whether he acquired the information from questioning defendant, from a fellow officer or from some document or report (see People v Justice, 99 AD3d 1213, 1214 [4th Dept 2012], lv denied 20 NY3d 1012 [2013] [insufficient evidence of the defendant’s age where a police officer generally testified that he learned the defendant’s birthday “during the course of his investigation,” and the People failed to establish that the testimony was admissible under some exception to the hearsay rule]). People v McVay, 2026 NY Slip Op 03887, First Dept 6-18-26

Practice Point: Here the defendant’s age was an element of the crime and the People failed to prove it with admissible evidence. The conviction was therefore reversed.​

 

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DOWSING THE VICTIM WITH ACCELERANT AND IGNITING IT DO NOT SATISFY THE STATUTORY CRITERIA FOR ATTEMPTED MURDER FIRST DEGREE (THIRD DEPT).

The Third Department reversed defendant’s attempted murder first degree conviction as against the weight of the evidence. The act of dowsing the victim with accelerant did not satisfy the “physical pain” element of the offense and the act of igniting the accelerant did not meet the “course of conduct” element of the offense:

A person is guilty of attempted murder in the first degree when, with the intent to cause the death of another person, they attempt to cause the death of such person and, as relevant here, they “act[ ] in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim” … . In People v Estrella (41 NY3d 514 [2024]), the Court of Appeals explained that, to satisfy the course of conduct element of this “torture murder” subparagraph, the People must demonstrate “a series of distinct acts before the victim’s death that are intended to inflict and actually inflict extreme physical pain” … . The Court of Appeals made it clear that, in order to satisfy this standard, it is not enough that only the ultimate fatal act result in such pain … . Further, actions such as planning and stalking cannot be considered part of the course of conduct insofar as they do not cause physical pain … .

Here, assuming arguendo that defendant engaged in a series of distinct acts when he threw accelerant on victim A and then immediately lit her on fire, the evidence nevertheless fails to sustain the subject crime because the act of dousing victim A with accelerant cannot be said, under the particular facts of this case, to have caused her extreme physical pain. To be sure, the evidence plainly revealed the deplorable purpose behind throwing accelerant on victim A, and it would be difficult to imagine such an act not leading to psychological terror. However, such circumstances do not equate to the requisite physical pain … . While the remaining act of setting victim A on fire obviously led to extreme physical pain, a single act does not comprise a course of conduct … . Accordingly, we are constrained to conclude that the conviction on this count is against the weight of the evidence … . People v Ketter, 2026 NY Slip Op 03848, Third Dept 6-18-26

Practice Point: Consult this decision for an analysis of the elements of attempted murder first degree.​

 

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DEFENDANT ALLEGED HIS ATTORNEY DELIBERATELY WITHHELD IMPEACHMENT EVIDENCE ABOUT AN EXPERT WITNESS WHEN HIS ATTORNEY PERSUADED HIM TO HIRE THE EXPERT; BECAUSE OF THE IMPORTANCE OF THE EXPERT’S TESTIMONY, A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have held a hearing on defendant’s motion to vacate the judgment of conviction on ineffective-assistance grounds. Defendant alleged his attorney, Mary Rain, deliberately withheld impeachment information about an expert witness, Baerthlein, when persuading defendant to hire the expert:

… [D]efendant’s claim is that Rain was ineffective because she deliberately withheld impeachment evidence about Baerthlein when she persuaded defendant to hire him as an expert and the sole defense witness; that same impeachment evidence was ultimately used to vitiate Rain’s chosen defense; and that defendant would not have retained Baerthlein if Rain had disclosed the evidence in the first place. Given the central importance of Baerthlein’s credibility — particularly “in a case such as this, where casting doubt on the prosecution’s medical proof is the crux of the defense” … — Rain’s alleged failures, if true, were not the product of a legitimate but ill-advised trial strategy … . People v Thornton, 2026 NY Slip Op 03699, Third Dept 6-11-26

Practice Point: Here the allegation defense counsel deliberately withheld impeachment evidence about an expert witness while persuading defendant to hire the expert raised a factual question which required a hearing re: defendant’s motion to vacate his conviction on ineffective-assistance grounds.

 

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THE BELATED TURNING OVER OF ROSARIO MATERIAL PREJUDICED THE DEFENSE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the People’s belated turning over of Rosario material to the defense deprived defendant of a fair trial. The Rosario material consisted of notes taken by social workers describing the complainant’s therapy sessions. Defendant was prejudiced by the inability to adequately review the notes or to have an expert review them before the cross-examination of the complainant. The fact that the judge precluded the notes as a remedial measure was not helpful to the defendant:

… [D]efendant correctly contends that he is entitled to a new trial based on the People’s belated disclosure of certain notes between the complainant and social workers describing therapy sessions. The social workers were employed by the People, and their notes at all times had been in the People’s possession. The People must turn over to the defense any prior statements by a witness which relate to the subject matter of that witness’s testimony for use on cross-examination … . The material must be provided at a time when it can be useful to the defense … . When the late disclosure of Rosario material results in substantial prejudice to the defendant, a new trial is required … . Here, the defendant was substantially prejudiced by the late disclosure of these notes, as he was unable to sufficiently review the material or to retain an expert to do so. Moreover, the prejudice was not obviated by the remedial action taken by the Supreme Court, since the preclusion of the notes was not helpful to the defendant … . In light of the substantial prejudice to the defendant that resulted from the late disclosure of the Rosario material, a new trial is required … . People v Ibrahim, 2026 NY Slip Op 03687, Second Dept 6-10-26

Practice Point: The belated turning over of Rosario material deprived defendant of an adequate opportunity to review it before the cross-examination of the complainant warranting a new trial.

 

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THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and he did not admit to an essential element of burglary, the intent to commit a crime upon entering:

… [W]e agree with defendant that his waiver of the right to appeal is invalid. Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the “end of the case.” Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver “does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it” … .

Defendant contends that his plea is invalid because the plea allocution negated an element of the crime to which he pleaded guilty. As defendant acknowledges, he never moved to withdraw his plea, nor did he ever seek to vacate the judgment of conviction. This case, however, falls within the rare exception to the preservation requirement … . Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the “intent to commit a crime therein” (Penal Law § 140.30). Here, defendant twice indicated during his factual allocution that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent … . Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient … . The court therefore erred in accepting defendant’s guilty plea … . People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26

Practice Point: Re: a waiver of appeal, a defect in the oral appeal-waiver colloquy with the judge is not cured by a written waiver unless the defendant is asked whether he read and understood the written waiver before signing it.

Practice Point: Entering a home with the intent to retrieve one’s own property is not “burglary” because the entry was not accompanied by an intent to commit a crime.

 

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A HEARING ON A DEFENDANT’S ELIGIBILITY FOR AN ALTERNATIVE SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT; SENTENCE VACATED AND MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence and remitting the matter, determined defendant’s waiver of a hearing on whether he was eligible for an alternative sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) was invalid:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of manslaughter in the first degree (Penal Law § 125.20 [1]). As a condition of his plea, defendant waived his right to a Penal Law § 60.12 hearing to determine his eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act. Inasmuch as “section 60.12 hearings are not waivable as a condition of a plea agreement” … , we agree with defendant that this matter must be remitted for further proceedings, including a Penal Law § 60.12 hearing should defendant request one … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for further proceedings…. . People v Jones, 2026 NY Slip Op 03527, Fourth Dept 6-5-26

Practice Point: A defendant cannot waive a hearing on eligibility for an alternative sentence pursuant to the DVSJA as a condition of a plea agreement. Here defendant’s sentence was vacated and the matter was remitted for a hearing if defendant requests it.

 

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DEFENDANT’S STATEMENT THAT THERE WAS A WEAPON IN HIS BACKPACK WAS A RESPONSE TO A DIRECT QUESTION BY A POLICE OFFICER AND WAS THEREFORE NOT ADMISSIBLE AS “SPONTANEOUS;” THE STATEMENT AND THE WEAPON SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, suppressed a statement made by the defendant and the handgun seized from defendant’s backpack based on defendant’s statement. Defendant’s statement that the backpack contained a weapon was not spontaneous. It was made in response to a direct question by a police officer who had possession of the backpack and could feel the weapon inside:

At the suppression hearing, the sergeant who conducted the subject search testified that, upon removing the fanny pack from defendant’s backpack, he perceived that the fanny pack was heavy and contained a hard object “shaped like a pistol.” At that point, defendant, being booked 8 to 10 feet away, offered, “I can tell you what’s in there.” The sergeant inquired, “Yeah? What’s in there?,” to which defendant replied, “It’s a pistol.” In view of defendant’s detention and arrest, the location of the search and the sergeant’s admitted knowledge that the fanny pack contained a heavy pistol-shaped object, his question asking defendant what was contained inside the fanny pack was reasonably likely to trigger an incriminating statement — i.e., that the fanny pack contained a gun. As such, County Court erred in determining that defendant’s statements were spontaneous, and they should have been suppressed … . * * *

At the hearing, the sergeant confirmed that defendant’s backpack had already been secured when defendant was detained, handcuffed and placed in the rear seat of the vehicle — although it remains unclear at precisely what point defendant’s detention ripened into an arrest. The sergeant also established that law enforcement retained control of the backpack at all times thereafter and that he carried it into the station separately as defendant was escorted by another officer and booked in a different area. Defendant’s backpack was thus not on his person or within his immediate control or “grabbable area” at the time the search was conducted so as to raise concerns over evidence destruction … .  * * * Although the circumstances presented may have, upon a different record, supported the validity of an inventory search conducted pursuant to standardized police procedures, the People neither relied upon nor developed such a theory at the suppression hearing, electing instead to defend the search solely as one incident to arrest, and any passing attempt to raise that theory now is not properly before us … . On this record, we cannot agree that the People carried their burden to overcome the presumption of unreasonableness that attaches to a warrantless search, and the physical evidence therefore should have also been suppressed … . People v Pittman, 2026 NY Slip Op 03478, Third Dept 6-4-26

Practice Point: Here the statement by defendant that there was a weapon in his backpack was made in direct response to a police officer’s question. The statement, therefore, was not admissible as “spontaneous.” The statement and the weapon seized in a search based on the statement should have been suppressed.​

 

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WITHOUT A PAT-DOWN FRISK, THE OFFICER WHO MADE THE TRAFFIC STOP DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT POSSESSED A WEAPON; THE OFFICER’S SEARCH OF DEFENDANT’S JACKET POCKETS WAS NOT, THEREFORE, JUSTIFIED BY PROBABLE CAUSE; BECAUSE THE OFFICER TESTIFIED HE DID NOT INTEND TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH, THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST; SUPPRESSION OF THE SEIZED WEAPONS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s plea and conviction, and granting the motion to suppress, determined the officer who made the traffic stop should not have searched defendant’s pockets without first doing a pat-down frisk for weapons. The search was not justified by probable cause to believe defendant possessed a weapon, and the search was not justified as a search incident to arrest. The officer testified he did not intend to arrest the defendant at the time of the search:

Although the trooper testified that he conducted the search to ensure that defendant was unarmed, the record contains no evidence that the trooper possessed a reasonable suspicion that defendant was armed or posed a threat to his safety. In any event, such a suspicion would have justified only a limited pat-down of the jacket’s exterior rather than an invasive search of its pockets. Moreover, although the trooper attempted to justify the search through testimony that he believed there was “something on the inside” of the left side of defendant’s jacket because it felt “heavier than normal,” he did not make this observation until after he had already exceeded the permissible scope of a lawful pat down by unzipping and opening defendant’s jacket. Accordingly, the search cannot be sustained as a protective pat down of defendant.

… [I]t is now well settled that, for a search to be authorized as incident to arrest, law enforcement must either actually effectuate the arrest or possess a contemporaneous intent to arrest at the time the search is conducted … .  Critically, the intent to arrest must relate to the offense purportedly justifying the search, even if the defendant is ultimately arrested for a different offense … . Absent such intent, a search cannot be retroactively legitimized based on a decision to arrest that is made only after the discovery of additional evidence during the search … . Here, the trooper’s hearing testimony unequivocally establishes that he had no intent to arrest defendant at the time he conducted the search, and that the decision to arrest was not made until after he discovered the weapon in the interior pocket of defendant’s jacket. People v Roberts, 2026 NY Slip Op 03476, Third Dept 6-4-26

Practice Point: Consult this decision for discussions of the criteria for (1) asking a driver to step out of the car after a traffic stop, (2) a protective pat-down search of the driver, (3) the search of the driver’s pockets based on probable cause, and (4) the search of driver’s pockets as a search incident to arrest.​

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH, CRITERIA EXPLAINED IN DETAIL; TWO HANDGUNS AND HEROIN FOUND IN HIDDEN COMPARTMENTS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court, determined the search of defendant’s vehicle was not a valid inventory search. Two handguns and heroin found in hidden compartments were suppressed by the Third Department:

Although the failure to admit into evidence the relevant tow, impound or inventory search protocols is not automatically fatal, the People’s additional failure “to ask any substantive questions of the [state troopers] to establish that the policy was sufficiently standardized, that it was reasonable and that the [state troopers performing the search] followed it in this case” does become fatal … . Despite the fact that the testimony of the state troopers confirmed their general understanding of the purpose and legitimate objectives served by an inventory search, their testimony also demonstrated a lack of familiarity with any departmental protocol on how to conduct such a search or whether any protocol even existed — must less a procedure that limited their discretion … . Indeed, there was no testimony establishing the circumstances under which troopers could remove paneling or pry into compartments, such as under the steering wheel column or dashboard … . Nor was there any testimony regarding when a canine unit could be used to assist with an inventory search — and, even assuming such a protocol did exist, it would remain unclear how a canine unit could satisfy the legislative objectives required by law under the circumstances here, where defendant was in custody and the vehicle had already been towed to the State Police barracks … . While inventory search protocols either allowing or disallowing exploration into the compartment of a steering wheel column or the use of a canine unit could be “equally permissible,” having “no policy whatever” is what causes the subject search to not be “sufficiently regulated to satisfy the Fourth Amendment” … .

Moreover, the inventory form generated by the search included the loaded revolver that was found at the barracks — although the form indicated that the inventory search had been completed prior to the tow to the barracks. This fact, coupled with the realization that the items listed on the inventory form were almost entirely the hidden contraband — and not the bag on the back seat containing the Suboxone pills and loose bullet, or the other clothing and perishables testified to be in the vehicle — indicates the troopers’ search was not designed to produce a usable inventory to guard against claims of lost property or for officer safety, but to list evidence of a crime … . Accordingly, County Court should have granted defendant’s motion to suppress the evidence of heroin and the two handguns. People v Russ, 2026 NY Slip Op 03475, Third Dept 6-3-26

Practice Point: Consult this decision for an in-depth discussion of the criteria for a valid inventory search, not met here.

 

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THE SORA RISK-LEVEL GUIDELINES CONSIDER A SEX OFFENDER’S YOUTH (UNDER 20) AS AN AGGRAVATING FACTOR WARRANTING AN ASSESSMENT OF TEN POINTS; HERE DEFENDANTS ARGUED THEIR YOUTH SHOULD BE CONSIDERED A MITIGATING FACTOR; THAT ISSUE CAN ONLY BE ADDRESSED BY THE LEGISLATURE, NOT THE COURTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined the defendants’ young age at the time of the offenses (below 20) was adequately taken into account by the SORA risk-level guidelines in that the guidelines assess additional points based on an offender’s youth. In other words, the guidelines consider the offender’s youth as an aggravating factor for which 10 points is assessed. The defendants’ argument that their youth should be a mitigating factor can only be addressed by the legislature, not the courts:

Defendants’ argument that scientific research suggests that young age at the time of offense lowers the risk of reoffense and so is a mitigating factor meriting a downward departure amounts to a policy dispute with the legislature’s instruction to the Board to consider that factor, and with the Board’s corresponding decision to include age below 20 at the time of first offense as a basis for the assessment of ten points in the RAI [risk assessment instrument]—not an argument that the RAI does not “fully capture the nuances of [their] case” … . It is the Board that has a “legislative mandate to promulgate” the Guidelines … , and disagreement with the basis on which a factor is premised or with the manner in which the Board implements that mandate is “for the legislature and the Board to consider, and not within the scope of this Court’s authority” … . Indeed, ” ‘[t]he constitutional principle of separation of powers . . . requires that the Legislature make the critical policy decisions’ ” … . Here, the legislature did that by instructing the Board to consider as “indicative of a high risk of repeat offense” “the age of the sex offender at the time of the commission of the first sex offense” (Correction Law § 168-l [5] [a] [v], [d]). The Board, based on its expertise and experience and within the exercise of its discretion, in turn implemented this legislative directive by requiring the assessment of points under risk factor 8 where an offender committed a first sex offense before the age of 20 … . There is no legal basis for reaching the opposite conclusion in the guise of a judicially-fashioned “mitigating” factor. The legislature, and in turn the Board, may of course reconsider this approach to age as an indicator of likelihood of reoffense. People v Carnegie, 2026 NY Slip Op 03379, CtApp 5-28-26

Practice Point: A defendant seeking a downward departure from the SORA risk-level assessment cannot argue the defendant’s youth as a mitigating factor. The guidelines consider a defendant’s youth as an aggravating factor requiring the assessment of ten points. Only the legislature can change the guidelines.

 

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