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THE PEOPLE DID NOT DEMONSTRATE THEY EXERCISED DUE DILIGENCE IN BRINGING A POLICE OFFICER TO COURT TO TESTIFY AT A PRETRIAL HEARING; THE 33-DAY DELAY WAS UNREASONABLE AND CHARGEABLE TO THE PEOPLE; DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s speedy trial motion should have been granted and the indictment was dismissed. A 33-day delay in having a police officer come to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People:

The People announced readiness in July 2021 and, subsequently, a combined Huntley and Mapp hearing was held on December 8, 2021. After two officers from the Rochester Police Department testified at that hearing, the prosecutor stated that a third officer was “currently not allowed to come to court due to an ongoing investigation by the Attorney General’s Office.” The prosecutor said that he was unsure of “who” was telling the officer “not to come to court.” The court thus adjourned the hearing and, ultimately, the officer testified on January 10, 2022, i.e., 33 days later.

… The People failed to establish that they exercised due diligence, i.e. ” ‘credible, vigorous activity’ to make the witness available” … . People v Beason, 2025 NY Slip Op 05598, Fourth Dept 10-10-25

Practice Point: Here a 33-day unexplained delay in bringing a police officer to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People.

 

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THE ADDITIONAL FIVE-YEAR CONSECUTIVE SENTENCES PURSUANT TO PENAL LAW 265.09 (2) DID NOT APPLY TO FIVE COUNTS OF THE INDICTMENT; THE APPEAL OF AN ILLEGAL SENTENCE DOES NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department determined several of the additional consecutive five-year sentences pursuant to Penal Law 265.09( 2) were illegal. The court noted that preservation is not required for the appeal of an illegal sentence:

… [Penal Law 265.09(2)] provides in relevant part that, “[n]otwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in [Penal Law § 265.09 (1)], the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged, in furtherance of the commission of such crime” … . …

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 2… and robbery in the first degree under count 5 … . Given that the use or display of a firearm is an element of each of those crimes and “the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree” … , neither of those crimes may serve as “the underlying class B violent felony offense” upon which the court could impose an additional consecutive sentence of five years … .

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 3… . * * * Defendant’s conviction under Penal Law § 265.09 (1) (a) “did not involve the display of a loaded, operable weapon” … , and the victim—the only person other than defendant who was present in the room where the shooting occurred—had no recollection of defendant’s entry into the apartment or of the events that transpired during the shooting that caused his physical injuries … . People v Clea, 2025 NY Slip Op 05590, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into when the five-year consecutive-sentence enhancement for display of a fireman is not allowed by Penal Law 265.09 (2).

 

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THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the drug-possession indictment, determined the police officer’s search of defendant’s pocket while he was unconscious was not a valid search incident to arrest a was not justified under the Mental Hygiene Law. The police entered the apartment with the tenant’s permission to search for a person for whom they had an arrest warrant. The tenant told the police the defendant had the same first name as the name on the warrant but that defendant was not the person they were looking for. Defendant was sitting at the kitchen table either unconscious or asleep. When the police officer couldn’t wake the defendant up, the officer searched his pockets and found cocaine:

The officers called an ambulance for defendant, but when the ambulance arrived, the medical personnel were able to wake defendant and determined that he did not need medical care. During his testimony at the suppression hearing, the officer asserted that Mental Hygiene Law § 22.09 permitted him to search defendant inasmuch as he was planning to call an ambulance to transport defendant. The suppression court determined that the officer’s search of defendant’s person was justified by Mental Hygiene Law § 22.09 and that the search was analogous to a search incident to arrest.

… The People correctly concede that the officer did not believe that defendant had committed a crime before he searched defendant’s pockets, and thus the search was not conducted incident to a lawful arrest … . … [W]e cannot conclude that the police officer was acting pursuant to Mental Hygiene Law § 22.09 because, contrary to the People’s assertion, there was insufficient evidence that defendant was in danger of harming himself or others … . People v Ruise, 2025 NY Slip Op 05589, Fourth Dept 10-10-25

Practice Point: For a warrantless search of a person to be justified under the Mental Hygiene Law there must be evidence the defendant is in danger of harming himself or others.

 

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AS PART OF A PLEA BARGAIN, THE JUDGE PROMISED TO ORDER DEFENDANT TO BE ENROLLED IN THE COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) PROGRAM; BECAUSE DEFENDANT WAS NOT ELIGIBLE FOR THE PROGRAM, HIS MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his guilty plea should have been granted. The judge’s promise to order defendant to be enrolled in the CASAT (comprehensive alcohol and substance abuse treatment) program was central to defendant’s plea bargain. The program was not available to the defendant because he was not convicted of a drug-related offense:

… County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04 [6]). We agree. “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04 [6] …), so the promise cannot be honored. Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant’s plea agreement” … . Thus, defendant is entitled to vacatur of his guilty plea … . People v Robinson, 2025 NY Slip Op 05125, Third Dept 9-25-25

Practice Point: Here defendant was promised, as part of a plea bargain, enrollment in the CASAT program. It turned out he was not eligible for the program. Because the program was “part and parcel of defendant’s plea agreement,” defendant was entitled to vacatur of his guilty plea.

 

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DEFENDANT PERFORMED A RAP SONG DURING A RECORDED PHONE CALL MADE FROM JAIL; AN INVESIGATOR WAS CALLED AS AN EXPERT TO INTERPRET THE LYRICS; HIS INTERPRETATION MATCHED THE PEOPLE’S FACTUAL THEORY OF THE CASE; BECAUSE THE INVESTIGATOR WAS NOT ADEQUATELY QUALIFIED AS AN EXPERT, DEFENDANT WAS DENIED A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction on the ground he was not afforded a fair trial, in a full-fledged opinion by Justice Warhit, determined the “expert” evidence offered to interpret the meaning of a rap song defendant performed over a recorded phone call during his pretrial incarceration was inadmissible. The police investigator called upon to interpret the lyrics was not qualified to do so:

… [T]he investigator was unqualified to offer expert opinion testimony regarding the meaning of the rap lyrics. Additionally, while the investigator’s initial interpretations of the lyrics were often varied and reflected the lyrics’ inherent ambiguity, the investigator’s ultimate proffered opinions precisely and remarkably mirrored the People’s exact factual theory of the case. Moreover, the investigator’s interpretations of the lyrics also implied that the defendant had committed prior bad acts and crimes that were not charged in the indictment. Accordingly, we find that the defendant was deprived of a fair trial by the admission of this evidence … . * * *

… [T]o be qualified to offer expert opinion testimony, the witness must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

… [T]he People failed to establish that their proffered expert witness was qualified to render an expert opinion as to the meaning of the rap lyrics. After the Supreme Court gave the People “ten minutes” to “get somebody,” the People proffered the investigator as their expert. Although the investigator testified that he had attended trainings regarding gangs, including “gang lingo,” this case did not involve gangs … . Additionally,]the investigator acknowledged that rap lyrics are not always literal and cannot be interpreted like a regular conversation. The investigator’s testimony regarding his exposure and/or familiarity with rap music from watching YouTube videos and “music videos posted by alleged gang members, and their ilk,” which he stated could largely be understood using “common sense,” was insufficient to demonstrate that he possessed the requisite skill, training, knowledge, and/or experience necessary to render a reliable opinion regarding the meaning of the rap lyrics at issue in this case … . People v Reaves, 2025 NY Slip Op 05107, Second Dept 9-24-25

Practice Point: Although rap lyrics have been admitted in evidence in criminal trials, here the investigator who interpreted the lyrics was not qualified to do so. It was reversible error to admit the “expert’s” opinion about the meaning of the lyrics.

 

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VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined that videotaped interviews respondent father’s children by the Manhattan Child Advocacy Center (CAC) are not subject to sealing under Criminal Procedure Law (CPL)  160.50 and therefore can be presented in a Family Court proceeding brought by the Administration for Children’s Services (ACS) alleging sexual abuse by father. The related criminal charges against father had been dismissed because of a lack of witness cooperation:

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive. This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions … . Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father’s actions to an independent forensic interviewer, did not contain any information about the father’s arrest or discontinued prosecution. Sealing the videotaped interviews would undermine the CAC and multidisciplinary model. Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court. Leah W. v Keith W., 2025 NY Slip Op 05041 First Dept 9-23-25

Practice Point: Videotaped interviews of father’s children by CAC led to criminal sex abuse charges against father which were dismissed. The videotaped interviews are not “official records and papers” subject to the sealing requirements in CPL 160.50 and therefore are available for use in related Family Court proceedings against father.

 

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THE “EXTRAORDINARY CIRCUMSTANCES” WHICH WOULD JUSTIFY RETAINING THE 17-YEAR-OLD’S BURGLARY PROSECUTION IN COUNTY COURT WERE NOT DEMONSTRATED; THE CASE SHOULD HAVE BEEN TRANSFERRED TO FAMILY COURT; THE CRITERIA FOR RETENTION IN COUNTY COURT ARE EXPLAINED IN DEPTH (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Powers, determined the People did not demonstrate “extraordinary circumstances’ justifying retaining the 17-year-old defendant’s burglary case in County Court. The matter should have been transferred to Family Court:

… [W]e agree with the Second Department’s conclusion that the Legislature intended for adolescent offenders to be prosecuted in criminal court “only in the most exceptional cases” … . * * *

As alleged in the criminal complaint, defendant and the brother stood accused of entering the dwelling of the relative and stealing unsecured firearms, which they then sold. Markedly, the relative was not home at the time and they did not forcibly enter the home. Rather, defendant’s brother — who was a willing and able participant — utilized the garage door code he had been entrusted with and they entered the home together, without causing damage to or destruction of property. Defendant also did not go on to use the firearms in the commission of some other crime nor were the firearms used by another in the commission of a crime. Instead, the firearms were sold, and then located by law enforcement not long after the sales.

These facts do not present one of the “extremely rare and exceptional cases” as was contemplated by the Legislature in enacting this legislation. In view of the foregoing, the People failed to demonstrate extraordinary circumstances existed as required to retain the matter in County Court (Youth Part) under CPL 722.23 (1) (d) … . People v Aaron VV., 2025 NY Slip Op 05018, Third Dept 9-18-25

Practice Point: Consult this decision for an in-depth discussion of the criteria for retaining a 17-year-old’s prosecution in County Court, as opposed to transferring the case to Family Court.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

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THE POLICE OFFICER’S WITNESSING THE EXCHANGE OF AN UNIDENTIFIED OBJECT PROVIDED PROBABLE CAUSE FOR A DRUG TRANSACTION ARREST; BECAUSE THE RECORD EVIDENCE SUPPORTED THE DENIAL OF SUPPRESSION, THE MIXED QUESTION OF LAW AND FACT WAS BEYOND FURTHER REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, affirming Supreme Court’s denial of the suppression motion, determined there was sufficient evidence in the record to support the motion court’s ruling. Therefore the mixed question of law and fact could not be reviewed further by the Court of Appeals. The issue was whether witnessing the exchange of an unidentified object provided probable cause to arrest for a drug transaction:​

The “factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any additional evidence of furtive . . . behavior on the part of the participants” … . Contrary to defendant’s contention, the absence of a “telltale sign” of a drug transaction is not fatal to a finding of probable cause. As we have explained, “a ‘telltale sign’ of narcotics strongly suggests an illicit drug transaction,” but it is not “an indispensable prerequisite to probable cause” … . Probable cause may also “be found on the basis of ‘indicia of a drug transaction’ known to ‘an experienced officer trained in the investigation and detection of narcotics,’ which include ‘handling an unidentified object in a manner typical of a drug sale'” … .

The testifying officer had formal training and experience in observing narcotics transactions, and he and his partners were stationed in an area known for drug-related activity. … [I]n the six months prior to defendant’s arrest, the testifying officer had made about ten narcotics-related arrests within two blocks of the motel. The officers also saw defendant “engage in [ ] behavior consistent with that of a narcotics seller” … , including nervous glancing, reaching into his waistband without looking down, and two separate interactions with the same woman, each involving an exchange of an object. Although the officers did not identify the object the woman acquired during the second interaction until after defendant’s arrest, the woman’s clenched fist and rapid departure indicated her desire to conceal it. People v Tapia, 2025 NY Slip Op 04940, CtApp 9-11-25

Practice Point: Where an appeal presents a mixed question of law and fact (here, whether there was probable cause for a drug transaction arrest based on the witnessed exchange of an unidentified object), the review by the Court of Appeals il limited to whether the motion court’s ruling has support in the record.​

 

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THE PROVISION OF THE CORRECTION LAW WHICH REQUIRES AN OUT-OF-STATE SEX OFFENDER TO BE CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” UPON RESIDING IN NEW YORK, REGARDLESS OF WHETHER THE OUT-OF-STATE OFFENSE WAS VIOLENT, IS UNCONSTITUTIONAL AS APPLIED TO THIS DEFENDANT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Taylor, determined the Correction Law provision requiring that an out-of-state sex-offender be automatically classified as a “sexually violent offender” upon residing in New York was unconstitutional as applied to the defendant:

Pursuant to Correction Law § 168-a(3)(b), the People … provided notice of their intent to seek a “sexually violent offender” designation for the defendant based on the out-of-state conviction because the defendant was required to register as a sex offender in Florida. * * *

We hold that the foreign registration clause, insofar as applied to the defendant, is not rationally related to a legitimate government interest, and therefore violates his substantive due process rights (see People v Brown, 41 NY3d at 284).

In particular, we agree with the Appellate Division, Fourth Department’s conclusion that, “[D]esignating [a] defendant as sexually violent merely because he [or she] had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a(3)(b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders” (People v Malloy, 228 AD3d at 1289).” People v Edwards, 2025 NY Slip Op 04922, Second Dept 9-10-25

Practice Point: Here the Correction Law provision requiring that out-of-state sex offenders be classified as “sexually violent offenders” upon residing in New York was deemed unconstitutional as applied to the defendant, whose out-of-state offense was nonviolent.​

 

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