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THE JUDGE PRONOUNCED A FELONY SENTENCE WITHOUT AN UPDATED AND COMPLETE PRESENTENCE REPORT; SENTENCE VACATED (FIRST DEPT).

The First Department, vacating defendant’s sentence after his period of incarceration was served but before his postrelease supervision was complete, determined the absence of a complete and updated presentence report invalidated the sentence:

Where a person is convicted of a felony, the court must order a presentence investigation of the defendant and it may not pronounce sentence until it has received a written report of that investigation (CPL 390.20[1] …). The presentence report must be current and contain updated information pertinent to the imposition of a proper sentence … . We hold that the presentence report in this case was inadequate, as it omitted crucial information regarding defendant’s history of trauma, mental health and substance abuse issues and failed to include a victim impact statement, among other things (CPL 390.30). We particularly note that defendant had not been interviewed prior to the report’s issuance and that Probation requested an adjournment of sentencing so that the newly assigned case officer could conduct the investigation.

Defendant, who was not represented by his assigned counsel at sentencing, did not waive his entitlement to a current, updated report by failing to affirmatively object to the presentence report’s sufficiency … . People v Camacho, 2025 NY Slip Op 02136, First Dept 4-10-25

Practice Point: A judge cannot pronounce sentence for a felony before receiving an updated and complete presentence report.

 

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . We evaluate the accusatory instrument here under the standard applicable to a misdemeanor information. In accordance with CPL 100.40, “[a] misdemeanor information must set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged’ ” … . This requirement is jurisdictional, and an accusatory instrument that falls short must be dismissed … . “[T]he test for whether a flaw in an accusatory instrument is jurisdictional is. . . whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . * * *

… [A]n accusatory instrument charging a violation of section 353 need not include documentation from a veterinarian, especially in those cases where the conditions are visible or palpable. The investigator did not allege any facts in support of [an alleged failure to provide veterinary care]. The investigator also failed to describe the conditions under which he first observed [the dog]—splayed in the middle of a traffic lane and barely able to move—which might have allowed for an inference that the dog was mistreated or neglected to the point of being in extremis.

In sum, the factual allegations and inferences to be drawn from the accusatory instrument are insufficient to “establish every element of the offense charged” … , that defendant deprived [the dog] of sustenance in violation of AML section 353. People v Farrell, 2025 NY Slip Op 02100 CtApp 4-10-25

Practice Point: Consult this opinion for some insight into the nature of the nonhearsay factual allegations which must be included in an accusatory instrument charging an A misdemeanor, here a violation of the Agriculture and Markets Law section 353 (failure to provide necessary sustenance for a dog).​

 

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd in 2020. The demonstration turned violent and defendant was captured on video throwing two Molotov cocktails toward police officers:

… “[T]he statute must be applied only in a manner consistent with the unique meaning of the term terrorism by requiring proof of conduct aimed at influencing, as relevant here, government action” … . More specifically, that the conduct was taken with the intent to influence a policy. The term “policy,” undefined in the statute (see Penal Law § 490.05), is readily understood as “[a] standard course of action that has been officially established by an organization, business, political party” … . In that sense, the phrase “influence the policy of a unit of government” encompasses a different intent on the part of a defendant that is more specific to a defined policy … . This is all the more evident when considering the clause that follows, as the interference with law enforcement duties referenced by the People is more aptly characterized as conduct that would “affect the conduct of a unit of government,” which contains [*5]the additional requirement that it be accomplished “by murder, assassination or kidnapping” (Penal Law § 490.25 [1]). The import of this distinction is that the reference to “policy” utilized in Penal Law § 490.25 (1) requires more than a belief that the government is engaging in some form of misconduct; in this case, systemic racism or police brutality.

… [T]he fact that defendant was motivated by his animus toward law enforcement does not in turn establish that he was attempting to influence any policy, either defined or perceived. People v Parker, 2025 NY Slip Op 02108, Third Dept 4-10-25

Practice Point: Consult this decision for a discussion of the proof requirements for “terrorism” in the context “assault upon a police officer as a crime of terrorism.”

 

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DEFENSE COUNSEL ALLOWED EVIDENCE PRECLUDED BY A SANDOVAL RULING TO COME IN, AND DID NOT OBJECT TO HEARSAY WHICH REFUTED DEFENDANT’S ALIBI; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for allowing the introduction of evidence which violated a Sandoval ruling. The court ruled the People could not introduce evidence of defendant’s rape conviction. But the People elicited testimony from defendant’s parole officer (Kellett) indicating defendant was a sex offender. In addition, hearsay testimony which refuted an alibi defendant did not attempt to present at trial was allowed in without objection by defense counsel:

Kellett’s testimony effectively circumvented the court’s earlier Sandoval ruling precluding the introduction of defendant’s past rape conviction by allowing her to testify that defendant was a sex offender … . The People had already affirmed on the record that they would not seek to introduce the basis for defendant’s parole supervision, and defendant had consented to this so long as the testimony be restricted and a limiting instruction provided. The details offered by Kellett were not necessary to establish defendant’s status as a parolee, as she could have merely testified that defendant was under parole supervision without elaborating upon his status as a sex offender. Despite the crimes charged not being of a sexual nature, the testimony in question introduced highly prejudicial information that “ha[d] no purpose other than to show that . . . defendant is of a criminal bent or character and thus likely to have committed the crime[s] charged” … . However, trial counsel made no objection to this testimony or, in the alternative, no request for a curative instruction. Thus, the prejudice resulting from this testimony was not dissipated “by promptly and clearly advising the jury that the comments were improper and should be completely disregarded” … . * * *

Although we find this error on the part of trial counsel to have, by itself, deprived defendant of a fair trial … , we would be remiss not to briefly address trial counsel’s failure to object to law enforcement testimony describing interviews with individuals who refuted defendant’s previously claimed alibi. This testimony presented arguably inadmissible evidence of a hearsay nature, which defendant claims presented a Crawford violation … . However, trial counsel lodged no objection, essentially allowing defendant to be impeached regarding an alibi he did not attempt to present at trial. People v Franklin, 2025 NY Slip Op 01975, Third Dept 4-3-25

Practice Point: Here a Sandoval ruling excluded evidence defendant had been convicted of rape but the People, through defendant’s parole officer, introduced evidence defendant was a sex offender. Defense counsel did not object. The failure to object was deemed ineffective assistance requiring a new trial.

 

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DEFENSE COUNSEL VOUCHED FOR THE CREDIBILITY OF THE VICTIM, DID NOT OBJECT WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM, AND ALLOWED EVIDENCE OF DEFENDANT’S PRIOR CRIMES TO COME IN DESPITE A SANDOVAL RULING KEEPING IT OUT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction in this sex-offense case and ordering a new trial, determined defense counsel did not provide effective assistance. Defense counsel vouched for the credibility of the victim and allowed evidence of defendant’s prior crimes to come in, despite a Sandoval ruling keeping it out:

… [D]uring counsel’s opening statement, he commented that, in his training representing victims of sexual assault, “the first thing I had to do was believe the accuser. I didn’t have a problem with that. I mean, why would someone make up an important detail or leave out certain details and accuse someone of a crime like rape?” Not only did counsel seemingly vouch for the victim’s credibility in this first opportunity to address the jury, but he also did the same in his summation, again reminding the jury that he had represented victims of sexual assault, stating that he “start[s] by believing it. I don’t sense any ill will from [the victim]” and that he knew “a verdict of not guilty in this case is not going to make anyone happy.” … . * * *

… [D]efense counsel elicited testimony that defendant had been in and out of jail for 10 years, was a regular drug user, had sold cocaine before and was a parolee who was violating parole conditions by being out past curfew as well as consuming alcohol and cocaine … on the night of the incident. Thereafter, when defendant chose to testify as to his version of events, County Court determined that since defense counsel had questioned the friend regarding defendant having been on parole at the time of the incident and in and out of prison for 10 years, the door had been opened for the People to pursue those lines of questioning with defendant on cross-examination. * * *

Compounding these errors, during the People’s summation, the prosecutor repeatedly improperly vouched for the victim’s credibility … , without objection from defense counsel, one time going so far as to say that the victim “testified credibly, consistently, believably and authentically.” Defense counsel’s failure to object to this repeated vouching is even more problematic given his own insinuations that the victim, as a sexual assault victim, should be believed. People v Monk, 2025 NY Slip Op 01976, Third Dept 4-3-25

Practice Point: It is difficult to think of a defense trial strategy that would include vouching for the credibility of the victim in a sex offense case. It is difficult to think of a defense trial strategy that would include allowing evidence of defendant’s prior crimes, which was the subject of a Sandoval ruling keeping it out, to come in. A trial, first and foremost, is an adversarial proceeding.

 

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ALTHOUGH THE ISSUE SHOULD HAVE BEEN RAISED IN A DIRECT APPEAL, AND DESPITE DEFENDANT’S FAILURE TO RAISE THE WINNING ARGUMENT IN THE MOTION TO VACATE THE CONVICTION, THE THIRD DEPARTMENT GRANTED DEFENDANTS REQUEST TO REMOVE THE SEX OFFENDER CLASSIFICATION FROM HIS SENTENCE; THE OFFENSE OF WHICH DEFENDANT WAS CONVICTED IS NOT A REGISTRABLE OFFENSE (THIRD DEPT). ​

The Third Department, vacating defendant’s judgment of conviction and reinstating it without the sex-offender certification, determined the offense of which defendant was convicted, burglary third degree as a sexually motivated felony, is not a registrable offense under the Correction Law. The court noted that a sex-offender certification is part of the sentence and therefore should have been challenged on direct appeal. Because an appeal is no longer possible, the court accepted the motion to vacate as an appropriate mechanism for correcting the error. Although the court rejected defendant’s “ineffective assistance of counsel” argument, it still granted the relief defendant sought on the constitutional ground that defendant has a “liberty interest” in not being misclassified as a sex offender:

Although defendant did not expressly raise such grounds in his motion, we note the People’s concession at oral argument that, in advocating that defendant pursue a different procedural course to obtain the requested relief, they do not oppose the ultimate result sought by defendant — the vacatur of the provisions of his judgment certifying him as a sex offender. * * * … [B]earing in mind that no party disputes that defendant should be afforded the discrete relief that he seeks in this proceeding and that defendant’s motion broadly seeks relief pursuant to CPL 440.10 (1) (h), we believe it appropriate, in the interest of judicial economy, to address this matter now rather than require defendant to file a new motion asserting a different constitutional basis for the same relief. We therefore exercise our discretion, in the interest of justice, and grant defendant’s motion, vacate the judgment, and thereafter reinstate the judgment without the provisions thereof certifying defendant as a sex offender pursuant to SORA and requiring him to pay the $50 sex offender registration fee … . People v Richardson, 2025 NY Slip Op 01980, Third Dept 4-3-25

Practice Point: Here is a rare instance of an appellate court’s overlooking defendant’s failure to raise the sex-offender-misclassification issue on direct appeal and defendant’s failure to raise the winning constitutional argument in the motion to vacate the conviction. The reason? No one objected to the relief defendant sought, i.e. correction of the misclassification of the defendant as a sex offender. The objections were to the mechanism used to request the relief.

 

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UNDER THE NEW DISCOVERY ARTICLE, CRIMINAL PROCEDURE LAW ARTICLE 245, THE DEFENDANT WAS ENTITLED TO “AUTOMATIC” DISCLOSURE OF THE TESTIMONY (IN A PRIOR CASE) OF AN ARRESTING OFFICER WHICH HAD BEEN DEEMED INCREDIBLE; THE FAILURE TO TURN OVER THE EVIDENCE RENDERED THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, affirming Supreme Court, in a full-fledged opinion by Justice Voutsinas, determined the Certificates of Compliance filed by the People were improper and the statement of readiness was  illusory because evidence which could be used to impeach the credibility of one of the arresting officers (Lt. Ruiz) was not turned over. The indictment was dismissed on speedy-trial grounds. The opinion is comprehensive and cannot be fairly summarized here:

This appeal concerns the new disclosure obligations in criminal cases, enacted by the New York State Legislature, effective January 1, 2020, as part of sweeping criminal justice reform legislation under the new CPL article 245 … . The new legislation provides, inter alia, for “[a]utomatic” disclosure by the People to the defendant of “all items and information that relate to the subject matter of the case” that are in the People’s possession or control (CPL 245.20[1]). Specifically, this appeal concerns CPL 245.20(1)(k)(iv), which requires that the People disclose “[a]ll evidence and information” that “tends to . . . impeach the credibility of a testifying prosecution witness.” We hold that, under the circumstances of this case, the People were required to disclose, pursuant to CPL 245.20(1)(k)(iv), underlying records from a prior case where one of the prosecution witnesses was found to be incredible, and that the Supreme Court properly determined, based upon the record before it, that the People’s certificates of compliance were improper, properly struck a statement of readiness as illusory, and properly granted the defendants’ motions, inter alia, pursuant to CPL 30.30 to dismiss the indictment on the ground that they were deprived of their statutory right to a speedy trial. * * *

This Court holds that the underlying records in the case in which Lt. Ruiz’s testimony was found to be incredible did relate to the subject matter of this case for impeachment purposes … . Here, the underlying records pertaining to Lt. Ruiz’s incredible testimony, including the transcript of his testimony, did relate to the subject matter of the case because the material went toward the weight of the credibility of the witness and could be used for impeachment purposes. Therefore, the People were required to provide the records. People v Coley, 2025 NY Slip Op 01945, Second Dept 4-2-25

Practice Point: Consult this decision for a comprehensive discussion of the People’s obligation to provide “automatic” disclosure of evidence which can be used to impeach the credibility of an arresting officer.

 

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THE POLICE TESTIMONY AT THE SUPPRESSION HEARING WAS NOT WORTHY OF BELIEF; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the police did not demonstrate the legality of the street stop which culminated in the pursuit of the defendant and the seizure of the firearm in defendant’s possession. The testimony of the arresting officer, Tofalli, at the suppression hearing was deemed unworthy of belief. Therefore the People did not meet their initial burden at the hearing, i.e., proving the legality of the police conduct:

“‘In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'” … . Reasonable suspicion exists where there is a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand” … . “A suspect’s flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,” and “[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity” … .

Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Tofalli’s testimony that when the defendant pulled up his pants he was able to see an “L-shape” outline in the defendant’s waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity. Moreover, Tofalli’s testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target … , and was further inconsistent with the recording obtained from Tofalli’s body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant’s T-shirt tightening around an “L-shape” object. Accordingly, under the circumstances presented, we find Tofalli’s testimony unworthy of belief … . People v Black, 2025 NY Slip Op 01943, Second Dept 4-2-25

Practice Point: The flight of the subject of a street stop, without some other indication of criminal activity, does not justify pursuit.

Practice Point: If the police testimony at the suppression hearing is not worthy of belief, the People have failed to meet their burden to demonstrate the legality of the police conduct. Suppression must be granted.

 

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THE RESTITUTION ORDERED AS PART OF DEFENDANT’S SENTENCE AFTER THE SECOND TRIAL RAISED A PRESUMPTION OF VINDICTIVENESS; DEFENDANT ARGUED THE RESTITUTION WAS PUNISHMENT FOR WINNING THE APPEAL OF THE FIRST TRIAL; THE THIRD DEPARTMENT VACATED THE RESTITUTION; ALSO, THE MURDER SECOND DEGREE COUNTS WERE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department, vacating the restitution portion of the sentence, determined the presumption of vindictiveness had not been overcome. The defendant had won an appeal requiring a second trial. Defendant argued that the restitution in the amount of $139,231.87 ordered after the second trial was punishment for the successful appeal. The Third Department also dismissed the murder second degree counts a inclusory concurrent courts of murder first degree:

“[T]o insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions” … . * * *

… [T]he imposition of restitution after retrial did result in an enhanced sentence following defendant’s successful appeal, and, as a result, the presumption of vindictiveness arose … . However, the court failed to engage in any on-the-record examination of the objective reasons why an enhanced sentence must be imposed, other than finding that it was not vindictive to order defendant “to make financially whole the representatives of his victims,” facts that indisputably existed at the time of the initial sentencing … . * * *

While we observe that County Court may have not actually been seeking to punish defendant for exercising his right to appeal when it imposed restitution, it was nevertheless the court’s obligation to overcome the presumption of vindictiveness by placing the reasons for the enhanced sentence on the record, and, based upon its failure to do so, we are constrained to vacate this portion of defendant’s sentence … . People v Powell, 2025 NY Slip Op 01839, Second Dept 3-27-25

Practice Point: Here ordering restitution as part of the sentence after the second trial raised a presumption that the restitution constituted “punishment” for defendant’s winning the appeal of the first trial. The sentencing court put nothing on the record to rebut the presumption of vindictiveness, so the restitution was vacated.

Practice Point: Here the murder second degree counts were dismissed as concurrent inclusory counts of murder first.

 

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PROOF THAT THE WEAPON WAS LOADED WHEN IT WAS FOUND THE DAY AFTER DEFENDANT POSSESSED IT WAS NOT SUFFICIENT TO SUPPORT THE CRIMINAL-POSSESSION-OF-A-WEAPON-SECOND-DEGREE COUNT (SECOND DEPT).

The Second Department, reversing defendant’s conviction on a count charging criminal possession of a weapon second degree, determined the People did not prove the firearm was loaded at the time defendant possessed it:

… [W]e find that [the evidence] was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment, which pertained to the Intratec firearm. A person is guilty of criminal possession of a weapon in the second degree when, inter alia, with intent to use the same unlawfully against another, such person possesses a loaded firearm (see Penal Law § 265.03[1][b]). Here, the evidence presented by the People …. was legally sufficient to establish that the defendant possessed the Intratec firearm in Queens on July 8, 2007. However, the People did not present any evidence that the Intratec firearm was loaded at the time that it was in the defendant’s possession in Queens on July 8, 2007, as charged under count 9 of the indictment … . Rather, the People merely presented evidence that the Intratec firearm was loaded at the time that it was found by the police in a garage in Brooklyn approximately one day later on July 9, 2007. Under these circumstances, the evidence was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment … . People v Bostic, 2025 NY Slip Op 01816, Second Dept 3-26-25

Practice Point: Proof that a firearm was loaded on July 9 does not prove the firearm was loaded when defendant possessed it on July 8.​

 

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