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THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that conducting the trial in the defendant’s absence was a “mode of proceedings” error which need not be preserved for appeal. If it is clear from the record that a defendant’s absence from the trial was deliberate, there is no error. But here the record was silent about the reason for defendant’s periodic absence:

Because defendant initially appeared for trial, the court was required to determine that his absence was deliberate in order to find that he had forfeited his right to be present … . In making such a determination, a court should “inquire[ ] into the surrounding circumstances” and “recite[ ] on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” … . Even if the court fails to recite those facts and reasons on the record, no error will be found so long as the court found the absence to be deliberate and the record contains sufficient facts to support that determination, such as where the court granted a brief adjournment to attempt to locate the defendant to no avail … .

Here, the court proceeded in defendant’s absence without making a finding on the record that defendant’s absence was deliberate, without stating facts and reasons that would support a finding of deliberateness, and without granting an adjournment or taking other steps to locate defendant. Under these circumstances, the court committed reversible error and a new trial is required … . People v Taft, 2025 NY Slip Op 02685, Fourth Dept 5-2-25

Practice Point: Where, as here, a defendant is periodically absent from the trial a “mode of proceedings” error has been committed unless the record demonstrates defendant’s absence was a deliberate choice on defendant’s part. Here the record was silent about the reason for defendant’s absence requiring reversal.

 

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ALTHOUGH DEFENDANT PLED GUILTY TO MANSLAUGHTER AND ATTEMPTED ASSAULT PURSUANT TO A PLEA AGREEMENT WITH A NEGOTIATED SENTENCE, THE CONSECUTIVE SENTENCES WERE ILLEGAL; THERE WAS NO PROOF IN THE PLEA ALLOCUTION THAT THE DEFENDANT FIRED MORE THAN ONE BULLET (THERE WAS A SECOND SHOOTER) (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the 25-year sentence for manslaughter and the 10-year sentence for attempted assault, which, pursuant to a plea agreement with a negotiated sentence, were imposed consecutively, must be served concurrently. Because the defendant pled guilty, the only relevant evidence is in the plea allocution. The majority concluded the record did not demonstrate that the defendant fired more than one bullet and therefore there was no proof the manslaughter and attempted assault charges stemmed from two separate acts (there was a second shooter):

“Consecutive sentences are appropriate only when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” … . The People bear the burden of establishing the legality of consecutive sentences and, when a defendant pleads guilty to a count in the indictment, may meet their burden by relying on the allegations in the accusatory instrument and any facts adduced at the plea allocution … . Where, as here, a defendant also pleads guilty to a lesser offense than that charged in the indictment, the People may only rely upon those facts and circumstances admitted during the plea allocution with respect to that count … . To this point, the facts necessary to support consecutive sentences may not be discerned from statements included in a presentence report … .

… [T]he People failed to meet their burden inasmuch as there are no facts alleged in the count of the indictment to which defendant pleaded guilty, or in the plea allocution relating to either count, that would establish that defendant’s “shooting a firearm,” which constituted manslaughter in the first degree by causing the death of the victim (count 1) and attempted assault in the first degree to a different victim (count 4), “arose from a separate and distinct pull of the trigger by defendant” … . People v Sabb, 2025 NY Slip Op 02624, Third Dept 5-1-25

Practice Point: To justify consecutive sentences the offenses must be the result of distinct acts. When conviction is by guilty plea, the plea allocution is the only admissible evidence of what happened (the pre-sentence report cannot be considered). Here, because the defendant did not admit to firing more than one bullet in the plea allocution, the sentences for manslaughter and attempted assault cannot be imposed consecutively. There was a cogent two-justice dissent.​

 

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THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted:

… County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in the second degree. Assault in the second degree is committed when a person acts “[w]ith intent to cause serious physical injury to another person [and] causes such injury to such person or to a third person” … ; assault in the third degree, in contrast, is committed when a person acts “[w]ith intent to cause physical injury to another person [and] causes such injury to such person or to a third person” … . There is no dispute that assault in the third degree as defined in Penal Law § 120.00 (1) is a lesser included offense of assault in the second degree as defined in Penal Law § 120.05 (1), as a person could intend and cause physical injury to a victim while not intending or causing serious physical injury … . The trial proof here left little doubt that defendant began by attempting to discipline the victim but that things soon escalated to the point where he was trying to injure her, including by picking her up by her throat and holding her against a wall for a few minutes, allowing her to fall to the floor and then slapping her. This proof permitted the finding that defendant intended to cause a serious physical injury which “create[d] a substantial risk of death, or . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” and such an injury resulted when the victim fell to the floor and broke her tooth … .

… [I]t was unclear whether defendant anticipated that the conscious victim would fall when he released her, and there was conflicting testimony as to whether he threw her to the floor with enough force to break her tooth or she simply took a bad fall after he let her drop. The victim’s treating dentist further conceded in his testimony that a tooth could accidentally break and that he had seen such injuries result from incidents as minor as “biting down on forks wrong.” When viewed in the light most favorable to defendant, this proof could allow “a jury [to] reasonably conclude that defendant intended and caused ‘physical injury’ to the victim” as opposed to serious physical injury … . People v Hooper, 2025 NY Slip Op 02623, Third Dept 5-1-25

Practice Point: There is no question that Assault third is a lesser included offense of Assault second. Here, the trial proof could be interpreted to support an intent to cause serious physical injury (Assault second) or an intent to cause physical injury (Assault third). Therefore defendant’s request for a jury instruction on Assault third should have been granted. A new trial was ordered on that count.

 

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DEFENDANT WAS NOT GIVEN A REASONABLE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED FOR THAT PURPOSE AND A REPORT TO THE APPELLATE COURT (SECOND DEPT).

The Second Department, remitting the matter and holding the appeal, determined the judge should have conducted an inquiry when defendant stated he wished to withdraw his guilty plea. The defendant did not have a reasonable opportunity to present his reasons:

“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” … . “[O]ften a limited interrogation by the court will suffice” … . “[W]hen a motion ‘is patently insufficient on its face, a court may simply deny the motion without making any inquiry'” … . Nevertheless, “[t]he defendant should be afforded reasonable opportunity to present his [or her] contentions and the court should be enabled to make an informed determination” … .

Here, the defendant was not afforded a reasonable opportunity to present his contentions regarding his application to withdraw his plea of guilty and, consequently, the court was not able to make an informed determination of that application … . Accordingly, the matter must be remitted to the County Court, Nassau County, for further proceedings on the defendant’s application to withdraw his plea of guilty, and thereafter a report to this Court limited to the County Court’s findings with respect to the application and whether the defendant established his entitlement to the withdrawal of his plea of guilty. People v Nesbitt, 2025 NY Slip Op 02611, Second Dept 4-30-25

Practice Point: A defendant must be afforded a “reasonable opportunity” to explain any request to withdraw a guilty plea. The appellate court can hold the appeal and remit the case to afford the defendant that opportunity.

 

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THE JUDGE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING THE MANDATORY “SEARCHING INQUIRY;” NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial, determined defendant’s request to proceed pro se was summarily denied without the required “searching inquiry:”

It is well established that a defendant in a criminal case may invoke the right to proceed pro se provided that “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, the record establishes that defendant requested to represent himself before the start of trial, stating: “I would like to go pro se, and I would like to bring something to the [c]ourt’s attention if I may, your Honor.” The court initially ignored the request, but defense counsel raised the issue twice more, causing the court to tell defendant: “We are not going to address the issue of pro se. You are here with [defense counsel],” whom the court described as “one of the most experienced defense attorneys in town.” Given that the court “recognized defendant as having unequivocally requested to proceed pro se,” it was then required to conduct a “searching inquiry to ensure that . . . defendant’s waiver [of the right to counsel was] knowing, intelligent, and voluntary” … . People v Taylor, 2025 NY Slip Op 02473, Fourth Dept 4-25-25

Practice Point: Once a judge recognizes a defendant has unequivocally requested to represent himself, the judge is required to make a “searching inquiry” to ensure defendant’s waiver of counsel is knowing, intelligent and voluntary. The failure to conduct the inquiry requires reversal.

 

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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction:

“[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … .

The People argue that certain statements made by defendant provided some direct evidence of defendant’s guilt of those charges. A defendant’s “statement[s are] direct evidence only if [they] constitute a relevant admission of guilt” … . Here, we conclude that the statements identified by the People were not admissions of guilt; rather, because they “merely includ[ed] inculpatory acts from which a jury may or may not infer guilt, the statement[s were] circumstantial and not direct evidence” … . The People thus failed to present ” ‘both direct and circumstantial evidence of . . . defendant’s guilt’ ” that would have negated the need for a circumstantial evidence charge … . People v Rodriguez, 2025 NY Slip Op 02454, Fourth Dept 4-25-25

Practice Point: Where the evidence against a defendant is both circumstantial and direct, a request for a circumstantial-evidence jury instruction is properly denied. Where the evidence is purely circumstantial, the request must be granted.​

Practice Point: A defendant’s statements are direct evidence only if they constitute an admission of guilt. Where, as here, the statements include inculpatory acts from which guilt can be inferred the statements constitute circumstantial evidence.

 

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ALTHOUGH ALL JUSTICES AGREED THE CERTIFICATE OF COMPLIANCE WAS NOT ILLUSORY, THE CONCURRENCE ARGUED THE PEOPLE SHOULD HAVE ASCERTAINED THE NAMES OF WITNESSES CAPTURED ON A VIDEO (FOURTH DEPT).

The Fourth Department determined the People’s certificate of compliance (COC) was not illusory and, therefore, the speedy trial statute was not violated. The concurrence agreed the COC was not illusory, but argued the People should have ascertained and turned over the names of witnesses which were depicted in a video:

… [W]ith respect to defendant’s claim that the People failed to turn over the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested, CPL 245.20 (1) (c) provides in relevant part that the People are required to disclose “[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto.” The People are not, however, required “to ascertain the existence of witnesses not known to the police or another law enforcement agency” … . The record shows that the People did not know or have in their possession the names of those witnesses with the exception of one witness whose name they learned just prior to the scheduled trial. The court thus properly determined that the People exercised due diligence and made reasonable efforts to ascertain the existence of the discovery materials … .

From the concurrence (Justice Whalen):

I respectfully disagree with the majority’s conclusion that the People had no obligation to make reasonable inquiries to ascertain the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested. Although the People are not required to “ascertain the existence of witnesses” not known to law enforcement … , here the record establishes that, at the time their discovery obligation under CPL article 245 arose, the People possessed knowledge that several of the witnesses depicted on the surveillance footage had “evidence or information relevant to any offense charged” … . Specifically, the People possessed the statements of the store owner and the victim, as well as the police report from the arresting officer, each of which reflects that just prior to defendant’s arrest, the depicted store employees tackled defendant to the ground, locked the door, and waited for police to arrive. Inasmuch as there is no plausible argument that the store employees who held defendant down after an attempted robbery did not “have evidence or information relevant to any offense charged” … , the People were obligated to “make a diligent, good faith effort to ascertain” … the “names and adequate contact information for [those] persons” … . In my opinion, the majority, in concluding otherwise, is conflating the statutory requirement that the People possess knowledge of the “existence of witnesses” … with knowledge of the names of witnesses. People v Burrows, 2025 NY Slip Op 02436, Fourth Dept 4-25-25

Practice Point: The concurrence argued the majority conflated the fact that the People need not ascertain the existence of witnesses they are not aware of with the obligation to ascertain the names of witnesses of which the People are aware.

 

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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of fact about probable cause. The action alleged the negligent use of excessive force (plaintiff was shot through the windshield of his vehicle), false arrest and unlawful imprisonment:

Excessive force claims are evaluated ” ‘under the Fourth Amendment’s “objective reasonableness” standard’ ” … . * * *

“Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … .

” ‘The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer’ ” … . …

Though “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the [false imprisonment cause of action]” … , the issue of probable cause is “generally a question of fact to be decided by the jury, and should ‘be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest’ ” … . Thomas v Niagara Frontier Tr. Auth., 2025 NY Slip Op 02433, Fourth Dept 4-25-25

Practice Point: Consult this decision for an analysis of “negligent use of excessive force,” “false arrest,” and “unlawful imprisonment” causes of action at the summary-judgment stage, in the face of conflicting evidence.​

 

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THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled:

Although we are mindful that “[d]ismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly,” it is our opinion that this is one of “those rare cases where there [are] compelling factor[s] which clearly demonstrate[ ] that prosecution [resulted in an] injustice” .. . … [A]ttempted assault in the third degree, a class B misdemeanor, is not serious … . … [T]he DSS caseworker was not seriously injured. * * * … [A]t the time of the attempted assault, respondent was in DSS’ care and custody because her mother was deceased and her grandmother, who subsequently adopted respondent, ultimately surrendered her rights. Respondent has a reportedly low IQ and a history of mental illness which was so severe that Family Court ordered a capacity evaluation … . Indeed, respondent had been brought to the hospital emergency room based on what was legally designed to be a temporary Mental Hygiene Law § 9.41 hold. Respondent remained in what was essentially a lock and key detention in the hospital, mostly in the emergency room, under dubious circumstances for an outrageous period of six months.

… Respondent already had numerous strikes against her, not only her lack of a parent/guardian and her serious mental health challenges, but also a previous juvenile delinquency adjudication. This additional juvenile delinquency finding is a red flag that will undoubtedly hinder opportunities and could cause difficulty for respondent should she seek mental health assistance in the future. Simply put, respondent needs no additional baggage, especially not baggage stemming from a juvenile delinquency petition that was admittedly filed and continued because of the difficulty of placing her in a suitable setting … . Matter of A. WW., 2025 NY Slip Op 02377, Third Dept 4-24-25

Practice Point: Consult this decision for a detailed analysis of an appellate court’s authority under the Family Court Act to dismiss a juvenile delinquency petition “in the interest of justice.”

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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