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A DEFENDANT’S RIGHT TO BE PERSONALLY PRESENT FOR SENTENCING EXTENDS TO RESENTENCING AND TO THE AMENDMENT OF A SENTENCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court and remitting the matter, determined defendant had a right to be present at his resentencing:

The defendant was not present at the resentencing proceeding in June 2023 because he was incarcerated in Florida. The Supreme Court nonetheless resentenced the defendant to the same sentence as had been previously imposed.

“A defendant has a fundamental right to be personally present at the time sentence is pronounced” … , which “extends to resentencing or to the amendment of a sentence” … . Although the defendant had already completed serving the incarceration portion of his sentence as of resentencing, the defendant had not completed the postrelease supervision component of his sentence, for which the Supreme Court could have resentenced the defendant to a minimum period of 3 years and a maximum period of 10 years (see Penal Law § 70.45[2-a][a]). The defendant was not present at the resentencing proceeding, and the record is devoid of any indication that he waived his right to be present … . People v Allen, 2025 NY Slip Op 01381, Second Dept 3-12-25

Practice Point: Absent a waiver, a defendant has the right to be personally presented at a resentencing.

 

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RESTRAINING A PERSON FOR A FEW SECONDS WHILE ATTEMPTING TO PULL THAT PERSON INTO A VEHICLE DOES NOT SATISFY THE CRITERIA FOR KIDNAPPING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the evidence did not support the kidnapping charge:

… Family Court’s determination that the appellant committed acts which, if committed by an adult, would have constituted the crime of kidnapping in the second degree was against the weight of the evidence. “A person is guilty of kidnapping in the second degree when he [or she] abducts another person” (Penal Law § 135.20 …). As relevant here, abduction “means to restrain a person with intent to prevent his [or her] liberation by either secreting or holding him [or her] in a place where he [or she] is not likely to be found” … . “Restrain means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] . . . without consent and with knowledge that the restriction is unlawful” … . Here, the presentment agency’s evidence demonstrated that the appellant restrained the complainant for a very short time while the two were in the midst of a physical altercation. Although the complainant testified that the appellant pulled her partway into a vehicle, at least one door of the vehicle remained open and the vehicle traveled only a very short distance before stopping again within a matter of mere seconds. The evidence established only that the appellant restrained the complainant, without the requisite “secreting or holding [her] in a place where [she] is not likely to be found” (Penal Law § 135.00[2][a]). Matter of Marco F., 2025 NY Slip Op 01365, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of the elements of “kidnapping.” Briefly restraining a person while unsuccessfully trying to pull that person into a vehicle is not enough.

 

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DEFENDANT’S MOTION TO VACATE THE 1994 ATTEMPTED MURDER CONVICTION ON “ACTUAL INNOCENCE” GROUNDS SHOULD NOT HAVE BEEN SUMMARILY DENIED; DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING, I.E., EVIDENCE A DECEASED COOPERATING WITNESS HAD CONFESSED TO BEING THE SHOOTER (FIRST DEPT).

The First Department determined the evidence of “actual innocence” submitted in defendant’s motion to vacate the 1994 attempted murder conviction warranted a hearing:

The court … should have ordered a hearing on defendant’s actual innocence claim … . Defendant presented evidence, supported by the statements of the Assistant United States Attorneys who handled the cooperator, that, in 1998, after defendant’s trial, the cooperator credibly exonerated defendant by admitting to the shooting. Although the cooperator has died, his confession would be admissible as a statement against penal interest … . Accordingly, the court lacked grounds for a summary denial under CPL 440.30(4)(b). People v Davila, 2025 NY Slip Op 01300, First Dept 3-6-25

Practice Point: If a motion to vacate a conviction is supported by credible evidence of “actual innocence,” a hearing is necessary before ruling on the motion.​

 

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ALTHOUGH THE JUDGE APPOINTED STANDBY COUNSEL AS DEFENDANT REQUESTED, THE JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY TO ENSURE DEFENDANT UNDERSTOOD THE RISKS OF REPRESENTING HIMSELF; GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the judge did not conduct an adequate inquiry before granting defendant’s request to represent himself. The appointment of standby counsel is not a substitute for an inquiry to make sure a defendant understands the risks:

… [D]efendant repeatedly conditioned his request on proceeding pro se “with standby [counsel].” In response to defendant’s request, County Court inquired as to whether defendant knew the rule regarding standby counsel. Although defendant replied in the negative, the court provided no further explanation and, instead, proceeded to question defendant about his knowledge of the law. Following a week-long adjournment for defendant to confer with counsel regarding his request to proceed pro se, at the next court appearance, defendant reaffirmed his desire to proceed pro se with standby counsel. Although the court informed defendant that he did not qualify for standby counsel because he seemed to be familiar with some legal terms, defendant responded that he was requesting standby counsel because he does not know everything in the law. The record does not otherwise reflect that defendant was informed of or understood that, despite being permitted to proceed with standby counsel, there were risks inherent in proceeding pro se. Upon this record, we conclude that County Court’s inquiry was insufficient to establish that defendant’s waiver of the right to counsel was knowing and voluntary and, accordingly, the plea must be vacated … . People v Gray, 2025 NY Slip Op 01259, Third Dept 3-6-25

Practice Point: The appointment of standby counsel is not a substitute for a judge’s responsibility to make an inquiry to ensure the defendant is aware of the risks of representing himself.

 

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THE ONLY EVIDENCE OF DEFENDANT’S PARTICIPATION IN THE SHOOTING WAS DNA ON A HANDGUN; THE EVIDENCE OF MURDER AND POSSESSION OF A WEAPON WAS LEGALLY INSUFFICIENT; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s murder conviction and dismissing the indictment, determined the circumstantial evidence was legally insufficient and the verdict was against the weight of the evidence. The only evidence against the defendant was DNA on a handgun. No evidence placed defendant at the scene of the shooting or in the vehicle apparently used by persons (Jenkins and Brown) involved in the shooting:

… [T]here no evidence from which to infer that defendant had the intent to commit, or aid Jenkins or Brown in furtherance of, the shooting. The People’s case depends almost entirely upon the DNA evidence, from which the People infer that defendant racked the Glock used to kill Ms. Jacobs. The DNA evidence, however, is highly equivocal and does not reasonably permit such an inference. … Critically, the OCME [Office of the Chief Medical Examiner] criminalist Hardy testified that it was impossible to determine when each contributor left DNA on the gun; how defendant’s DNA was transferred to the gun; or, more importantly, whether defendant even touched the gun. Without additional evidence that defendant possessed the gun during or took any actions to aid Jenkins or Brown in the shooting, any conclusion that defendant possessed the gun or committed or aided in the shooting is based entirely on conjecture.

There is no such corroborating evidence. This case contains no physical, video, or testimonial proof regarding any act defendant took in furtherance of possessing the gun or shooting Ms. Jacobs. Even assuming arguendo defendant’s presence with Jenkins and Brown nearly two hours before the shooting, such does not lead to a permissible inference that he shot Ms. Jacobs or possessed the gun in furtherance of the crime that evening. * * *

Further, there is no legally sufficient evidence proving that defendant was present at the crime scene. Again, assuming that defendant was with Jenkins and Brown hours prior to the shooting does not permit any reasonable inference that he was with them at the crime scene. There is no evidence that defendant ever entered the Nissan. Nor was there evidence that he was present in the Nissan at the time of the chase. While police recovered from the Nissan fingerprints of Jenkins, Brown, and that of a third unidentified back seat passenger, they did not recover defendant’s prints. Additionally, the liquor bottles with which the People attempt to tie defendant to the car do not match those defendant purchased at the liquor store, and the bottles were never tested for defendant’s fingerprints or DNA. People v Coke, 2025 NY Slip Op 01297, First Dept 3-6-25

Practice Point: Consult this opinion for discussions of convictions based entirely on circumstantial evidence. the criteria for finding evidence legally insufficient. and the criteria for finding a verdict is against the weight of the evidence.

 

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DEFENDANT’S FOR-CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s for-cause challenge to a prospective juror should have been granted:

… Supreme Court should have granted the defendant’s for-cause challenge to a prospective juror who evinced a state of mind that was likely to preclude the prospective juror from rendering an impartial verdict based on the evidence … . “[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Here, during voir dire, the prospective juror stated that his mother-in-law was a victim of sexual assault and raised his hand when defense counsel asked if any potential jurors felt that this was not the “right case” for them since the sexual assault allegations in this case might make them “too emotional” and might be something they “c[ould not] handle.” Under the circumstances, the prospective juror’s statements raised a serious doubt regarding his ability to be impartial, and the court failed to elicit an unequivocal assurance on the record that the prospective juror could render a fair and impartial verdict based on the evidence … . Since the defendant exhausted his peremptory challenges, the denial of his for-cause challenge constitutes reversible error … . People v Faustin, 2025 NY Slip Op 01231, Second Dept 3-5-25

Practice Point: The prospective juror’s statements raised serious doubts about his ability to be impartial in this sexual-offense case. Defendant’s for-cause challenge to the prospective juror should have been granted.​

 

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OBSERVING THE DEFENDANT CARRYING CAPPED BOTTLES OF ALCOHOL AND HAVING A HEAVY OBJECT IN A JACKET POCKET WAS NOT SUFFICIENT TO JUSTIFY DETAINING DEFENDANT; DEFENDANT’S FLIGHT WHEN AN OFFICER SAID “COME OVER HERE” IS OF NO CONSEQUENCE; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, reversing Supreme Court, determined defendant’s motion to suppress the handgun seized in a street stop should have been suppressed. Two police officers in a vehicle observed the defendant crossing the street. The defendant was carrying haff-full bottles of alcohol, but the bottles were not open. When one of the officers got out of the police vehicle and shone a flashlight on the defendant he noticed there appeared to be a heavy object in the defendant’s jacket pocket. The officer told the defendant to “come over here.” The defendant ran, was tackled, and the handgun was seized:

Transporting closed bottles is a legal activity which, without more, does not give rise to a presumption of intent to consume, or a founded suspicion of criminal activity under DeBour. Moreover, the fact that it was raining makes it less likely that the defendant intended to congregate outside and remain exposed to the elements while consuming alcohol. Critically, the officers never saw defendant drink from any of the bottles. Therefore, these facts did not give rise to a presumption that defendant intended to consume alcohol in public in violation of the statute, and Officer Delia, at most, acquired the right to approach defendant to request information.

The heavy-weighted object in defendant’s right jacket pocket could not have justified defendant’s stop and detention because, “absent other circumstances evoking suspicion, indicative of or referable to the possession of a handgun, the observation of a mere bulge or heavy object in a pocket does not imply a reasonable conclusion that the person is armed” … . “A police officer must show that the object or appearance thereof which is the focus of his attention resembled a gun” … . Thus, absent a showing of anything other than a mere bulge or heavy object in defendant’s pocket, Officer Delia could not have acquired a level of suspicion sufficient to detain the defendant … . People v Walker, 2025 NY Slip Op 01194, First Dept 3-4-25

Practice Point: If what the police observe is not enough to justify a street stop, the defendant’s flight when the police approach is irrelevant.​

 

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DEFENSE COUNSEL’S FAILURE TO REQUEST THAT THE JURY BE INSTRUCTED ON THE HEIGHTENED DEFINITION OF IMPAIRMENT DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; AT THE TIME OF THE TRIAL THERE WAS NO APPELLATE AUTHORITY FOR THE APPLICATION OF THE HEIGHTENED DEFINITION OF IMPAIRMENT IN ANY CONTEXT OTHER THAN VEHICULAR MANSLAUGHTER (THIRD DEPT).

The Third Department, affirming defendant’s conviction, over a dissent, determined that the heightened definition of “impaired” which has been applied to a vehicular manslaughter charge need not be applied to driving while ability impaired by drugs or a combination thereof, the charges against defendant here. Therefore the failure to request that the jury be instructed to apply the heightened definition of impaired did not constitute ineffective assistance of counsel:

At the time of defendant’s trial, there was no appellate authority which warranted a jury instruction concerning the heightened intoxication standard relative to the crimes that were pending against defendant. In Caden N. [189 AD3d 84], this Court, by its own express language, limited its holding to the crime of vehicular manslaughter, which of course is not present here. That is, this Court was careful to state that it was defining impairment “in the context of assessing whether a person has committed the crime of vehicular manslaughter in the second degree” (People v Caden N., 189 AD3d at 90). In the event that this Court had also wished to apply the new definition of impairment to the underlying crimes of driving while ability impaired by drugs or by a combination thereof, it surely would have explicitly stated as much. * * *

In the absence of any such authority, defense counsel properly acquiesced to the jury being charged in accordance with the definition of impairment that was provided in the Criminal Jury Instructions as of that time. Thus, under these circumstances, it cannot be said that any reasonable defense counsel would have requested the intoxication instruction in place of the impairment instruction, and counsel was not ineffective for failing to do so. People v Ambrosio, 2025 NY Slip Op 01133, Third Dept 2-27-25

Practice Point: The Third Department has applied a heightened definition of impairment for vehicular manslaughter cases. The Fourth Department refused to follow suit. The law in this area is in flux.

 

WHETHER DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY OFFENDER DEPENDS ON THE UNDERLYING FACTS FOR THE PREDICATE FEDERAL OFFENSE WHICH ARE NOT ON THE RECORD; MATTER REMITTED FOR THAT DETERMINATION (THIRD DEPT).

The Third Department, reversing Supreme Court and remitting the matter, determined that whether the federal offense used as a predicate for defendant’s second felony offender designation is the equivalent of a New York felony depends on the underlying facts of the federal offense:

… [T]he federal statute under which defendant was previously convicted provides, in relevant part, that “it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” (21 USC § 841 [a] [1]). As defendant points out, the federal statute contains elements not found in certain New York statutes, e.g., manufacturing, and encompasses a mix of felony and misdemeanor offenses … . Hence, resort to the facts underlying defendant’s federal conviction is warranted in order to ascertain whether defendant’s convictions are equivalent to a felony in this state … . However, because defendant did not controvert his status as a second felony offender, the People have not sought to admit an “accusatory instrument that describe[s] the particular act or acts underlying the charge [for purposes of] isolat[ing] and identify[ing] the statutory crime[s] of which . . . defendant was accused” for purposes of “determining whether Penal Law § 70.06 [1] [b] [i] has been satisfied” … . Accordingly, we remit this matter for a hearing on defendant’s CPL 440.20 motion to give the People the opportunity to establish, and defendant the opportunity to protest, the issue of equivalency, which is a determination we cannot make on the current record. People v Darby, 2025 NY Slip Op 01134, Third Dept 2-27-25

Practice Point: When a federal conviction is used as a predicate offense for a second felony offender designation, the federal offense must be equivalent to a New York felony. Here the federal offense included elements not included in the relevant New York felony. In that situation, it is necessary to look at the underlying facts for the federal conviction to determine equivalency.

 

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THE APPEAL WAIVER WAS INVALID, CRITERIA EXPLAINED; THERE ARE UNRESOLVED QUESTIONS (RAISED BY A DEFENSE INVESTIGATION SUBMITTED WITH THE MOTION TO SUPPRESS) ABOUT WHETHER THE DESCRIPTON OF THE SEARCHED PREMISES IN THE WARRANT WAS ACCURATE, REQUIRING A HEARING; MATTER REMANDED (FIRST DEPT

The First Department, in a full-fledged opinion by Justice Higgitt, remanding the matter for a suppression hearing, and finding the appeal waiver invalid, determined there were questions about whether the search warrant described the premises to be searched with sufficient particularity. The warrant indicated there was only one apartment, with an unmarked tan door. The defendant’s investigator submitted evidence demonstrating there were two apartments, neither with a tan door, and the door to the searched apartment was marked with a number one, while the other apartment door was unmarked:

The plea colloquy contained several defects. It did not make clear, expressly or tacitly, that the right to appeal was separate and distinct from the Boykin rights defendant was automatically forfeiting with the plea; the colloquy suggested that the appeal waiver was absolute, offering no clue that some core appellate claims would survive; and, relatedly, the colloquy wrongly indicated that no appeal was permissible on the fundamental issues of whether the plea was entered into knowingly and voluntarily, and whether the sentence was legal.

The written waiver cannot save the oral appeal waiver. The plea court did not confirm that defendant had read the written waiver; the court did not confirm that defendant had discussed the written waiver with counsel; and the court did not confirm that defendant understood the written waiver … . * * *

… [D]efendant’s submissions in support of his omnibus motion call into question whether the search warrant contains a misdescription of the premises to be searched, and, if there is a misdescription, whether it renders the warrant invalid. Specifically, defendant’s omnibus motion submissions raise a question of fact as to whether, based on what the police officer knew or should have known about the premises when the search warrant was sought, the warrant’s description of the target premises was accurate … . [D]efendant here submitted evidence (in particular, the affirmation of the investigator who visited the premises and the photographs of 955 Bruckner Boulevard taken by the investigator) about the “actual conditions of the premises” in support of his omnibus motion … . Additionally, assuming there was a misdescription of the premises to be searched, a question of fact exists as to whether there was no reasonable possibility that the wrong premises would have been searched … .

We cannot resolve the issues raised by defendant’s omnibus motion submissions without a hearing (see CPL 710.60[4]; see also CPL 710.60[2] …). This is not a situation where it is plain from the existing record that there was no reasonable possibility that the wrong premises would be searched regardless of any misdescription … . People v Trulove, 2025 NY Slip Op 01178, First Dept 2-27-25

Practice Point: Consult this opinion for a detailed explanation of the criteria for a valid waiver of appeal.

Practice Point: Here the defense investigator submitted evidence which raised a question whether the search warrant accurately described the premises to be searched. The matter was remanded for a hearing.

 

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