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DEFENDANT WAS NOT ENTITLED TO VACATION OF HIS CONVICTIONS ON THE GROUND THE COUNTS WHICH WERE DISMISSED AT TRIAL HAD A PREJUDICIAL “SPILL-OVER-EFFECT” ON THE REMAINING COUNTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction under a “prejudicial-spill-over-effect” theory should not have been granted. Defendant argued the counts which were dismissed at trial had tainted the counts for which he was convicted:​

“Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[T]he paramount consideration in assessing potential spillover error is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” … . “By contrast, where the jury’s decision to convict on the tainted counts had only a tangential effect on its decision to convict on the remaining counts, no reversal is warranted” … . “Spillover analysis is highly case-specific,” requiring an evaluation of “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . * * *

… [U]nder the circumstances of this case, there was no reasonable possibility that the evidence supporting the tainted counts pertaining to the robbery on November 27, 1995, had a spillover effect on the other counts … . As the jury’s decision to convict on the tainted counts had, at most, a tangential effect upon its decision to convict on the remaining counts pursuant to the robbery on November 13, 1995, vacatur of the defendant’s convictions related to the robbery on November 13, 1995, was unwarranted on the ground of spillover prejudice … . People v Breland, 2026 NY Slip Op 02848, First Dept 5-6-26

Practice Point: Consult this decision for insight into the argument that the counts on which defendant was convicted were tainted by the counts which were dismissed at trial.

 

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE EMPANELING OF AN ANONYMOUS JURY CONSTITUTED INEFFECTIVE ASSISTANCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to object to the empaneling of an anonymous jury:

… [D]efendant contends that his trial counsel was ineffective for failing to object when County Court empaneled an anonymous jury. In support of his motion, defendant submitted the affidavit of his trial counsel, who acknowledged that the decision to empanel an anonymous jury “did not sound right” at the time, but that he did not become aware that this was possibly a reversible error until April 2024, when this Court handed down Heidrich [.226 AD3d 1096]. Defendant’s trial counsel further stated that he “had not researched the issue before . . . trial” and that the “failure to object was not a result of any strategy on [his] part.” Although the People contend that the leading case on the anonymous jury issue existed prior to defendant’s trial and had not been expanded upon by Heidrich, the People acknowledge on appeal that “the empaneling of an anonymous jury in violation of CPL 270.15 constitutes a per se denial of a defendant’s right to a fair trial that cannot be subjected to harmless error analysis.” Indeed, a single error may qualify as ineffective assistance where it “compromise[s] a defendant’s right to a fair trial” … , particularly where, like here, the jurors were only identified by numbers and the record fails to reveal whether their names were ever provided to defense counsel — “which materially heightens the risk of prejudice” … . Accordingly, under the unique circumstances of this particular case and where the legal basis for the motion is undisputed through sworn allegations (see CPL 440.30 [3]), we substitute our discretion for that of the motion court and grant defendant’s motion to vacate the judgment of conviction … . As such, remittal for a new trial is required. People v Rahaman, 2026 NY Slip Op 02696, Third Dept 4-30-26

Practice Point: Defense counsel’s failure to object to the empaneling of an anonymous jury can amount to ineffective assistance and warrant a new trial in the absence of preservation.

 

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DEFENDANT’S FUNDAMENTAL RIGHT TO BE PRESENT AT RESENTENCING WAS VIOLATED, DESPITE DEFENSE COUNSEL’S STATEMENT THAT DEFENDANT’S PRESENCE WAS NOT NECESSARY (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was denied his fundamental right to be present at resentencing. Defense counsel told the court defendant’s presence was not necessary:

… [A]s to defendant’s assertion that his fundamental right to be present at resentencing was violated, we agree. Here, County Court … received a letter from DOCCS informing the court that defendant’s two sentences of 2 to 4 years for the underlying grand larceny convictions were not in compliance with state law, and, therefore, an amendment was required. The record reflects that defendant was not produced at either the preceding conference or the resentencing proceeding. The record merely indicates that defense counsel stated, orally and in writing, that defendant’s presence was not necessary, yet there is no acknowledgment that defendant was even aware of the resentencing proceeding. As such, defendant’s fundamental right to be present at his resentencing was violated, and the matter must be remitted to County Court for resentencing on the grand larceny convictions (see CPL 380.40…). People v Cobbins, 2026 NY Slip Op 02695, Third Dept 4-30-26

Practice Point: A defendant has a fundamental right to be present at resentencing. The error need be preserved and survives defense counsel’s statement that defendant’s presence is not necessary.

 

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THE JUDGE’S LAW CLERK, WHO REVIEWED DEFENDANT’S MOTION TO VACATE HIS CONVICTION, MAY HAVE PARTICIPATED IN DEFENDANT’S PROSECUTION; TO AVOID THE APPEARANCE OF IMPROPRIETY, THE DENIAL OF THE MOTION WAS REVERSED (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction (CPL 440.10), determined the judge’s law clerk who reviewed the motion may have been involved in the defendant’s prosecution:

“A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality” … . As an extension of the judge that they serve, “a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function” … . Indeed, law clerks serve as “[n]on-judges who perform judicial functions within the judicial system” … , and therefore a law clerk’s conflict may require the judge they serve to “disqualify in a proceeding in which the judge’s impartiality ‘might reasonably be questioned’ ” … . Although such disqualification is not automatic, a judge must insulate their law clerk from all matters in which the law clerk had any personal involvement as an attorney during the law clerk’s prior employment and disclose the law clerk’s involvement and insulation to the parties — “even where the law clerk’s involvement in the matter consisted of only a single court appearance” … . In doing so, a judge must prohibit their law clerk from participating in any way with the proceeding, including conferencing, performing legal research or drafting decisions … . The failure to do so constitutes reversible error … . People v Dickinson, 2026 NY Slip Op 02694, Third Dept 4-30-26

Practice Point: Here the “appearance of impropriety” created by the possibility the judge’s law clerk participated in defendant’s prosecution, required reversal of the denial of defendant’s post-trial motion.

 

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THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s waiver of appeal was invalid and defendant’s motion to suppress the evidence seized from his person should have been granted:

Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant’s right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People’s consent … . It follows, then, that the court’s demand of an appeal waiver, particularly as viewed in light of defendant’s expressed desire to seek appellate review of the court’s suppression ruling, “gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People” and, therefore, “we must look to the record as a whole to determine whether there is a distinct and proper reason for the court’s demand” … . * * *

Upon our review of the record …, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal. Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions. * * *

… [T]he anonymous 911 phone tip generated only a belief that criminal activity was afoot and, as such, limited the officers’ permissible action to a level two common-law right of inquiry … . * * *

Inasmuch as the People failed to present evidence at the suppression hearing establishing defendant’s voluntary consent to the search of his person, all physical evidence seized as a result of that consent “should have been suppressed” … . People v Turner, 2026 NY Slip Op 02557, Fourth Dept 4-24-26

Practice Point: Where the defendant pleads to the charges and there is no need for the People’s consent, the sentencing judge must have a distinct and proper reason to demand that defendant waive his right to appeal, absent here.

 

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ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in fact, been arrested:

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

 

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THE NEGOTIATED PLEA TO A MISDEMEANOR INFORMATION WAS VACATED AND THE DISMISSAL OF THE FELONY CHARGES WAS REVERSED; THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE EVERY ELEMENT OF THE CHARGED OFFENSE, HERE THE OPERABILITY OF THE FIREARM; THE FELONY CHARGES WERE REINSTATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Term, over a two-judge dissent, determined the misdemeanor information to which defendant pled guilty was jurisdictionally defective in that it did not allege every element of the offense, here the operability of the firearm:

At arraignment, the People stated that while there had not yet been grand jury action, the parties had agreed to a pre-indictment plea bargain whereby the defendant would plead guilty to the misdemeanor count in satisfaction of all charges in exchange for a sentence of two years’ probation. With the People’s consent, Criminal Court purported to dismiss the two felony counts by crossing them off the felony complaint. The court did not adhere to the procedure set forth in CPL 180.50 for reducing felony charges, the People did not file a superseding accusatory instrument, and the defendant did not waive prosecution by information. He nonetheless pleaded guilty to the remaining misdemeanor count, and the court later imposed the bargained-for sentence. The defendant subsequently appealed the judgment of conviction, arguing that the felony complaint was jurisdictionally defective as to the count to which he pleaded due to the absence of any allegation that the firearm was operable. * * *

We agree with the defendant that the instrument to which he pleaded guilty did not meet the prima facie case requirement because it lacked any allegations of operability. As such, it was jurisdictionally defective and could not serve as the basis for his plea. Consequently, the case should be “restored to its pre-pleading status” (CPL 470.55 [2] …). The record reflects that the felony counts were dismissed when the parties informed the court of their agreed-upon disposition, and thus the purported dismissal is best understood as an integral component of the defendant’s plea. The pre-pleading posture therefore restores the felony complaint … . The defendant fails to identify a sufficient basis for dismissal of the original, pre-pleading felony complaint, and we therefore remit for further proceedings. People v Burgess, 2026 NY Slip Op 02438, CtApp 4-23-26

Practice Point: Consult this opinion for insight into the consequences of failing to follow the proper procedure for reducing felony charges as part of a negotiated plea to an information. Here the information was deemed jurisdictionally defective on appeal, the plea was vacated, and the felony charges were reinstated.

A HEARING REGARDING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a concurring opinion and a three-judge dissent, determined the hearing regarding a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) cannot be waived as part of a plea agreement:

The issue on appeal is whether, as a condition of a negotiated plea agreement, a defendant may waive a Penal Law § 60.12 hearing to determine their eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act (DVSJA). The Legislature designed the DVSJA’s alternative sentencing framework to remedy a systemic injustice of the criminal legal system. Specifically, the Legislature recognized that the standard sentencing scheme fails to adequately consider how domestic violence impacts a survivor defendant’s criminal conduct, and their potential for rehabilitation, resulting in harsh and unfair sentences for many survivors. The DVSJA, in Penal Law § 60.12, provides a survivor defendant with the opportunity to request a hearing to establish the impacts of domestic violence in their case and their eligibility for a lesser sentence that accords with the legislative purpose of fair and compassionate treatment of survivors.

Here, defendant N.H. requested a reduced sentence under the DVSJA sentencing framework or, in the alternative, a section 60.12 hearing to demonstrate her eligibility for such a sentence. The prosecution subsequently offered, and N.H. accepted, a plea bargain contingent on N.H.’s waiver of a section 60.12 hearing. We hold that section 60.12 hearings are not waivable as a condition of a plea agreement. People v N.H., 2026 NY Slip Op 02437, CtApp 4-23-26

Practice Point: A defendant eligible for a reduced sentence hearing pursuant to the Domestic Violence Survivors Justice Act cannot waive the hearing as a condition for a plea agreement.

 

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HERE THE TRIAL TESTIMONY ABOUT THE IDENTIFICATION OF THE DEFENDANT’S VOICE WAS MUCH LESS DEFINITIVE AND UNEQUIVOCAL THAN THE TESTIMONY AT THE SUPPRESSION HEARING, RAISING A QUESTION WHETHER THERE WAS PROBABLE CAUSE FOR DEFENDANT’S ARREST; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO REOPEN THE SUPPRESSION HEARING; MATTER REMITTED FOR A REOPENED HEARING (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined defense counsel was ineffective for failing to move to reopen the hearing based upon discrepancies between the testimony at the suppression hearing and at trial. The trial testimony was less definitive and unequivocal, raising a question about whether there was probable cause for defendant’s arrest:

The defendant contends that trial counsel was ineffective for failing to move to reopen the pretrial suppression hearing on the basis that an individual had testified, during the trial, that he had told the police that the voice of the alleged kidnapper, who the individual had heard speaking on the telephone, was “possibly” that of the defendant, and the individual also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of the defendant. Whereas, the police testimony at the pretrial suppression hearing regarding the same individual’s identification of the defendant’s voice, which formed the basis for the defendant’s arrest, was more definitive and unequivocal, and did not involve the viewing of a photograph. We agree.

Courts have the discretion to reopen a suppression hearing based upon new facts, which could not have been discovered with reasonable diligence before the determination of the suppression motion, pertinent to the suppression issue … . These new facts need not establish a constitutional violation on their face, but must be facts that would either materially affect, or have affected, the earlier determination … . Here, where the reliability of a witness’s identification of the defendant’s voice as that of one of the perpetrators of the crime, which primarily formed the basis for the defendant’s arrest, was called into question in light of that witness’s trial testimony, an issue of fact was raised regarding whether there was probable cause for the defendant’s arrest … . Although motions to reopen suppression hearings are generally denied where the new facts proffered go only to the circumstances surrounding the defendant’s arrest, here, the defendant could not be presumed to know the basis of the communications or conduct between police, leading to his arrest … . The failure of trial counsel to move to reopen the suppression hearing on this ground was therefore both objectively unreasonable as well as prejudicial to the defendant … . Contrary to the People’s contention, this is not a case in which trial counsel’s error can be explained as part of any strategic design … . People v Clark, 2026 NY Slip Op 02414, Second Dept 4-22-26

Practice Point: Here trial testimony about the identification of defendant’s voice was not as definitive or unequivocal as the testimony at the suppression hearing raising a question whether there was probable cause for defendant’s arrest. Defense counsel was ineffective for failing to move to reopen the hearing. The matter was remitted for a reopened hearing.​

 

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DEFENDANT’S 30.30 (“SPEEDY TRIAL”) MOTION WAS MADE ON THE DAY TRIAL WAS TO BEGIN; THE ARGUMENT THAT THE MOTION WAS UNTIMELY BECAUSE THE PEOPLE WERE STATUTORILY ENTITLED TO “REASONABLE NOTICE” WAS REJECTED; THE TRIAL JUDGE IS FREE TO ADJOURN THE TRIAL, OR PROCEED WITH THE TRIAL AND HEAR THE SPEEDY TRIAL MOTION SUBSEQUENTLY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined defendant’s 30.30 (“speedy trial”) motion was timely made right before trial. The argument that bringing the motion right before trial violated the statutory provision that the motion be made upon “reasonable notice” to the People was rejected. Once the motion is made, the trial court can opt to proceed with the trial and determine the motion subsequently:

… [A] defendant seeking a dismissal based on a speedy trial violation may wish to accumulate as many chargeable days as possible. The facts here reinforce the wisdom of this approach. Defendant made his motion on the date trial was set to begin, eleven months after his arraignment, and alleged 326 days chargeable to the People. That motion contained 9 pages of detailed calculations of days and arguments about why each period should be charged to the People, including the days immediately leading up to the July 23 court date. The People for their part now claim that only 54 of those days were chargeable to them. In other words, every day counts—and many may be contested—in the speedy trial context, and the statute affords a defendant flexibility to decide when best in the time leading up to the start of trial to make a CPL 30.30 (1) (b) motion.

… [T]he People are entitled to a fair opportunity to prepare a response. * * * A court in receipt of such motion has discretion whether to proceed with trial and when to resolve the motion. While proceeding in this way may lead to inefficiencies … , such a result may in certain cases be necessary. The trial court is in the best position to determine when proceeding to trial is warranted to avoid inconvenience to witnesses and unnecessary delay. People v Roper, 2026 NY Slip Op 02365, CtApp 4-21-26

Practice Point: Here a 30.30 (speedy trial) motion was timely despite being made on the day of the trial. The argument that the motion was untimely because the “reasonable notice” provision in the statute was violated was rejected. The court can proceed with the trial and hear the motion later.​

 

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