You are here: / Criminal Law
, ,

THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE DETERMINING DEFENDANT’S SORA RISK-LEVEL; MATTER REMITTED (SECOND DEPT). ​

The First Department, remitting the matter, determined the judge did not make the required findings of fact and conclusions of law when designating the defendant’s risk level under SORA:

In designating a sex offender’s risk level under SORA, “[t]he court shall render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n[3]). Here, the court’s statement at the conclusion of the hearing “did not adequately set forth the findings of fact and conclusions of law on which it based its decision” to assess the points at issue on appeal and deny defendant’s motion for a downward departure … . Instead, the court simply stated: “The People have met their burden of proof of clear and convincing evidence, that 135 points were properly assessed, which corresponds to a Level 3 sex offender designation. The motion for downward departure is denied.” The court’s written order repeated those statements. Therefore, we remand the matter to Supreme Court “to specify the required findings and conclusions, based on the evidence already introduced” … . People v Tolliver, 2025 NY Slip Op 00489, First Dept 1-30-25

Practice Point: A judge’s designation of a defendant’s SORA risk level must be supported by findings of fact and conclusions of law.

 

,

IN THIS STATUTORY RAPE CASE WHERE THE VICTIM WAS FIVE YEARS YOUNGER THAN DEFENDANT, DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE (SECOND DEPT).

The Second Department reduced defendant’s SORA risk level from two to one. This was a statutory rape case in which the victim was five years younger than defendant:

“In cases of statutory rape, the Board [of Examiners of Sex Offenders] has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety” … . The Guidelines provide that “[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [under risk factor 2, sexual contact with the victim,] results in an over-assessment of the offender’s risk to public safety” … .

Here, considering all of the circumstances, including the five-year age difference between the defendant and the victim, the fact that the defendant’s overall score of 75 points was near the low end of the range applicable to a presumptive level two designation, and that the subject offense is the only sex-related crime in the defendant’s history, the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure is warranted, and the defendant should be designated a level one sex offender. People v Rivera, 2025 NY Slip Op 00467, Second Dept 1-29-25

Practice Point: Here, in reducing defendant SORA risk level from two to one, the court noted that the risk to the public can be over-assessed in statutory rape cases where the defendant and the victim are close in age.​

 

, , ,

DURING SUMMATION THE PROSECUTOR REPEATEDLY ACCUSED DEFENDANT OF LYING, VOUCHED FOR THE CREDIBILITY OF THE COMPLAINANT AND MISSTATED CRITICAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the attempted murder and burglary convictions were against the weight of the evidence and prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor, inter alia, repeatedly accused the defendant of lying, improperly vouched for the credibility of the complainant, and misstated the critical evidence to support the charge of attempted murder in the second degree. Indeed, the prosecutor repeatedly accused the defendant of lying on the witness stand by stating, among other things, that the defendant was “caught in a lie” and was being “less than truthful,” and that “[w]hen she thinks it is going to benefit her, she is quick to tell you a lie” … . The prosecutor also improperly stated that to believe the defendant’s version of the events, the jury would have to believe “that [the complainant] is lying about everything she told you, you have to believe she’s a complete liar,” that the police officers “are lying too,” and that “[e]veryone is out to get this defendant” … . Additionally, the prosecutor improperly vouched for the complainant’s credibility by repeatedly telling the jury that the complainant was, inter alia, “honest” and “telling the truth,” and that her testimony “was plausible and true” … . Further, the prosecutor misstated the critical evidence as to a doctor’s testimony regarding the depth of the stab wound to puncture the complainant’s chest cavity by stating that “at a minimum it would need to be a[n] inch or two to puncture someone’s chest cavity” … . Rather, the doctor estimated that the stab wound would have to be “about an inch” deep. As this evidence was critical to support the charge of attempted murder in the second degree, the prosecutor’s remarks were improper. People v Gallardo, 2025 NY Slip Op 00460, Second Dept 1-29-25

Practice Point: Here the prosecutor, in summation, accused defendant of lying, vouched for the credibility of the complainant, and misstated critical evidence. That was enough to warrant a new trial.

 

, , ,

IN THIS MENTAL HYGIENE LAW ARTICLE 10 TRIAL TO DETERMINE WHETHER THE RESPONDENT, WHO HAD SERVED HIS SENTENCE FOR SEXUAL OFFENSES, REQUIRED CIVIL MANAGEMENT, HEARSAY BASED EXPERT EVIDENCE OFFERED BY THE STATE AND EVIDENCE FROM ONE OF RESPONDENT’S VICTIMS SHOULD NOT HAVE BEEN EXCLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the jury’s finding that respondent did not suffer from a mental abnormality requiring civil management, determined that hearsay based expert evidence offered by the state, and evidence of violence and sexual offenses offered by one of respondent’s victims should not have been excluded:

… [T]he State’s expert should have been permitted to give hearsay basis testimony regarding a statement made to her by the respondent’s sexual abuse victim. “In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect” … . Here, the State established the reliability of this hearsay basis testimony since the respondent was convicted of sexual abuse in the first degree with respect to this victim … .. Moreover, the probative value of this hearsay basis testimony in helping the jury evaluate the expert’s opinion testimony substantially outweighed its prejudicial effect … .

The Supreme Court also erred in precluding a certain witness from testifying at trial regarding violence and sexual offenses that the respondent allegedly committed against her. The witness’s proposed testimony, which was not hearsay … , was relevant to the issue of whether the respondent suffered from a mental abnormality … , and the probative value of such testimony outweighed its prejudicial impact, particularly since the State’s expert expressly considered this proposed testimony in forming her opinion that the respondent suffered from sexual sadism … . Matter of State of New York v Kevin W., 2025 NY Slip Op 00455, Second Dept 1-29-25

Practice Point: Hearsay based expert evidence is admissible in a Mental Hygiene Law Article civil-management 10 trial if it is reliable and if its probative value outweighs its prejudicial effect.

 

, ,

THE WARRANTLESS SEARCH PROBATION CONDITION WAS NOT REASONABLY RELATED TO THE UNDERLYING OFFENSES; THE APPEAL WAIVER WAS INVALID; EVEN IF THE WAIVER WERE VALID THE IMPROPER PROBATION CONDITION COULD BE CONSIDERED ON APPEAL (FIRST DEPT).

The First Department determined defendant’s waiver of appeal was invalid and the probation condition allowing warrantless searches of defendant’s home, person and vehicle was not reasonable related to the underlying offenses. The court noted that defendant could appeal the probation condition even if the appeal waiver were valid:

We find defendant’s appeal waiver invalid and unenforceable because the court did not adequately explain the nature of the appellate rights defendant was waiving, that the right to appeal was separate and distinct from the rights automatically forfeited upon a guilty plea or the limited claims that survive an appeal waiver … . The written waiver of appeal defendant signed “[was] not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … .

Although defendant’s waiver of the right to appeal was invalid, defendant’s sentence was not excessive. However, the special probation condition permitting warrantless searches of defendant’s home, person and vehicle was not reasonably related to defendant’s rehabilitation since the crime of which defendant was convicted did not involve weapons or drugs … . Contrary to the People’s contention, a defendant’s challenge to the condition of probation requiring consent to searches of their person, vehicle and place of abode by a probation officer for drugs, drug paraphernalia, weapons and contraband would have survived the appeal waiver had it not been invalid … . People v Amparo, 2025 NY Slip Op 00389, First Dept 1-23-25

Practice Point: A written appeal waiver does not cure deficiencies in the judge’s explanation of the forfeited rights.

Practice Point: A condition of probation which does not reasonably relate to the underlying offenses will be struck on appeal.

Practice Point: An improper probation condition can be appealed even if the error has not been preserved by objection.

 

, ,

DEFENDANT MADE A DISCOVERY DEMAND FOR “LINE OF DUTY” DOCUMENTS RELEVANT TO THE DEFENSE; THE PEOPLE DID NOT ADDRESS THE DEMAND; ON APPEAL THE PEOPLE ARGUED FOR THE FIRST TIME THAT THERE WERE NO SUCH DOCUMENTS; BY FAILING TO ADDRESS THE DEMAND IN THE MOTION COURT, THE PEOPLE WERE DEEMED TO HAVE CONCEDED THE EXISTENCE OF THE DOCUMENTS; THE CERTIFICATE OF COMPLIANCE WAS THEREFORE ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the indictment, determined the certificate of compliance (COC) with the People’s discovery obligations was illusory and defendant’s motion to dismiss on speedy trial grounds should have been granted:

Officer Soto testified before the grand jury that the defendant was sitting in a parked car when the plainclothes officers approached him, that Officer Soto did not identify himself as a police officer, that he could not recall whether Officer Cruz identified himself as a police officer, that a struggle ensued over some suspected marijuana in the defendant’s hand, and that the defendant drove away, causing injury to each officer. The indicted charges included aggravated assault upon a police officer and assault in the second degree, alleging, among other things, that the defendant caused serious physical injury to Officer Soto and physical injury to Officer Cruz. * * *

The defendant … identified the failure to disclose any “line of duty” paperwork, despite the defendant’s request for the same, and the facts that both officers were out “line of duty” for a period of time due to their injuries and Officer Soto ultimately retired due to his injuries. The defendant asserted that the “line of duty” paperwork would include documents relating to the independent medical examinations by the New York City Police Department District Surgeon used to certify that the officers were, in fact, injured and unable to return to full duty, as well as written statements by the officers regarding the manner in which their injuries occurred. * * *

On appeal, the People assert that there is no indication that any “line of duty” paperwork exists. In opposition to the defendant’s motion, however, the People did not refute the defendant’s assertion that the paperwork existed. “Normally what is not disputed is deemed to be conceded” … . Moreover, as the People bear the burden of establishing that they did, in fact, exercise due diligence and make reasonable inquiries to ascertain the existence of material and information subject to discovery prior to filing the COC, it was incumbent on the People to address the defendant’s assertion regarding the “line of duty” paperwork in opposing his motion. People v Serrano, 2025 NY Slip Op 00338, Second Dept 1-22-25

Practice Point: If the People ignore a defendant’s discovery demand for relevant documents, they will be deemed to have acknowledged that the documents exist rendering the COC illusory.

 

,

DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SECOND FELONY OFFENDER BASED ON A LOUISIANA CONVICTION FOR AN OFFENSE WHICH IS NOT A FELONY IN NEW YORK (SECOND DEPT). ​

The Second Department, remitting the matter for resentencing, determined the Louisiana conviction for an offense which is not a felony in New York should not have been the basis for adjudicating defendant as a second felony offender:

The defendant … contends that his adjudication as a second felony offender was illegal because the predicate Louisiana offense was not a felony under New York law. “Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons” … . An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York … . Here, as conceded by the People, the defendant’s Louisiana conviction of simple robbery did not constitute a felony in New York for the purpose of enhanced sentencing and thus, the defendant should not have been adjudicated a second felony offender on the basis of that conviction … . People v Harris, 2025 NY Slip Op 00331, Second Dept 1-22-25

Practice Point: If an out-of-state conviction is for an offense which is not a felony in New York, an enhanced sentence as a second felony offender is not available.

 

, , , ,

THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

,

THE IMPOUNDMENT OF DEFENDANT’S VEHICLE WAS NOT DEMONSTRATED TO HAVE BEEN NECESSARY AND THE PROCEDURES FOR AN INVENTORY SEARCH OF THE VEHICLE WERE NOT FOLLOWED; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, granting defendant’s motion to suppress a handgun, over a dissent, determined the impoundment of defendant’s vehicle after a traffic stop was unnecessary and the search of the vehicle was not a valid inventory search:

Maggs’ [the arresting officer’s] ambiguous testimony — essentially asserting that any vehicle parked on the street would be unsafe if unattended — falls short of demonstrating that the subject vehicle was not reasonably secure and safe in this residential area, among the many other vehicles parked curbside … . Further, although departmental policy did not require Maggs to investigate whether defendant’s father, who was not present at the scene, was in fact willing and able to take control of the vehicle, “facts were brought to [Maggs’] attention to show that impounding would be unnecessary” … . Moreover, defendant’s inquiry as to whether the vehicle could be picked up at some later point is tantamount to a request to leave the vehicle where it was, presenting yet another situation in which a vehicle should not be towed per written departmental policy. Given the People’s failure to demonstrate that the vehicle was lawfully impounded at the time of the inventory search, defendant’s motion should have been granted.

The People also failed to demonstrate that the so-called inventory search was conducted in compliance with established procedures … . * * *

There is also considerable indicia that the purported inventory search was a pretext to search for contraband, including the canvassing of defendant’s residence, the absence of any traffic citation, and the fact that the decision to arrest defendant and impound the vehicle came only after defendant refused to provide his consent to search the vehicle … . People v Gray, 2025 NY Slip Op 00249, Third Dept 1-16-25

Practice Point: Here the vehicle could have been safely left parked where it was, or it could have been picked up by someone. To impound the vehicle therefore violated the police department’s regulations. Because the People did not prove the vehicle was legally impounded at the time it was searched the suppression motion should have been granted.

Practice Point: The hallmark of a valid inventory search is an inventory list, which was not created here.

 

,

DEFENDANT’S UNEQUIVOCAL ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS IGNORED REQUIRING SUPPRESSION OF THE SUBSEQUENT STATEMENTS; THE ERROR WAS DEEMED HARMLESS (THIRD DEPT).

The Third Department determined defendant was improperly questioned after he unequivocally asserted his right to remain silent, but found the error harmless:

Approximately 45 minutes into the interview, after defendant had been provided his Miranda rights and answered numerous inquiries, defendant told the investigators that just prior to the shooting he observed a fight between a man and a woman on Crane Street. Defendant then provided no audible responses to investigators’ questions for several minutes. One of the investigators repeated the inquiry as to the next thing defendant remembered, and, after about eight seconds of silence, defendant said “get the f**k out of here b***h, you trying to play me.” The investigator then asked defendant what he said and defendant repeated his statement. This prompted the investigator to respond that he would leave if defendant wanted him to. However, the investigator then attempted to persuade defendant to continue the interview, stressing that the investigators needed defendant’s side of the story in light of the damaging evidence against him. It is evident from this interaction that the investigators understood defendant’s statement as an unequivocal request for them to leave the room and for the interview to end … . By continuing the interview without providing further warnings, defendant’s right to remain silent was violated and the remainder of the recorded interview should have been suppressed … .

Nevertheless, our inquiry is not complete, as we must assess whether that error was harmless. “Where, as here, the asserted error is of a constitutional dimension, the error may be deemed harmless only if there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt” … . … [T]he … evidence of defendant’s guilt, which included multiple angles of video footage that depicted defendant on scene and discharging several projectiles from his firearm at a crowd, together with witness testimony that corroborated the footage, was overwhelming. * * * … [W]e conclude that the error was harmless under the constitutional standard and that reversal is not required … . People v Dorvil, 2025 NY Slip Op 00246, Third Dept 1-16-25

Practice Point: Ignoring defendant’s unequivocal assertion of his right to remain silent is an error of constitutional dimension which will be deemed harmless only if there is “no reasonable possibility” the error might have contributed to defendant’s conviction.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy