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DEFENDANT’S MURDER CONVICTION HINGED ON THE CREDIBILITY OF A POLICE OFFICER’S CLAIM DEFENDANT CONFESSED TO INTENTIONAL MURDER; ALL OTHER STATEMENTS ATTRIBUTED TO DEFENDANT WERE CONSISTENT WITH AN ACCIDENTAL SHOOTING; WITHHOLDING TWO FEDERAL COMPLAINTS AGAINST THE OFFICER AND THE OFFICER’S “CIVILIAN COMPLAINT REVIEW BOARD” (CCRB) RECORDS FROM THE DEFENSE WAS A REVERSIBLE BRADY VIOLATION (FIRST DEPT).

The First Department, affirming the vacation of defendant’s conviction stemming from the People’s Brady violation, in a detailed opinion by Justice Kapnick, determined the murder conviction hinged on the credibility of a police officer’s (Rodriguez’) claim defendant confessed to intentional murder. All of the other statements attributed to defendant were consistent with an accidental shooting. The opinion is far too complex to fairly summarize here and is well worth studying:

Defendant argued that the People possessed but did not disclose (i) two federal complaints brought by pro se plaintiff Dale Robertson against Detective Rodriguez, (ii) a complaint brought by plaintiff Enger Miguel Javier against Detective Rodriguez in Bronx Supreme Court, and (iii) a three-page CCRB [Civilian Complaint Review Board] Officer History. Defendant argued that the People’s failure to disclose these materials undermined the fairness of his trial and may have impacted the verdict.

The verified complaint for Javier v City of New York, filed approximately one year [the instant shooting], alleged that Detective Rodriguez and his partner interrogated the plaintiff, Javier, over two days without Miranda warnings and deprived him of access to a lawyer … . It further alleged that the detectives forced a witness to falsely accuse Javier of the crime, even though Javier repeatedly told the detectives that he was innocent and identified the actual perpetrator. Ultimately, the Bronx DA dismissed the charges against Javier.

In Robertson, the plaintiff alleged that Detective Rodriguez coerced him into confessing that he had accidentally murdered the victim while he was being transported to Central Booking …. Robertson claimed that Detective Rodriguez and another officer transported him in the back of an unmarked police vehicle with the front seat pushed all the way back, crushing Robertson’s legs. Detective Rodriguez, who was seated next to him, allegedly pressed him against the window to coerce the confession.

The People conceded that they possessed but did not disclose a CCRB Officer History containing summary information regarding 40 allegations made against Detective Rodriguez, including the dates, categories of allegations, and disposition of each incident. The 40 allegations of misconduct reflect 16 discrete CCRB incidents where Detective Rodriguez allegedly used physical force, caused property damage and threatened arrest. People v White, 2026 NY Slip Op 04475, First Dept 7-16-26

Practice Point: Consult this opinion for an in-depth analysis of when civilian complaints against a police officer must be disclosed by the People as Brady material.

 

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A POLICE REPORT INDICATING DEFENDANT WAS “HIGHLY INTOXICATED” AT THE TIME OF THE SHOOTING WAS NOT ADMISSIBLE AS A BUSINESS RECORD, CRITERIA EXPLAINED IN SOME DEPTH (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Powers, affirmed County Court’s ruling that a police report which indicated defendant was “highly intoxicated” was not admissible as a business record. Defendant sought to use the report as a basis for his expert’s testimony (presumably to the effect that defendant was intoxicated at the time of the shooting):

It is uncontested that the drafter of the report, a lieutenant with the State Police, did not observe the events described therein or, more specifically, defendant’s level of intoxication that night. The inquiry thus distills to whether defendant, as the proponent of the report, sufficiently demonstrated that the source of the statement that he was “highly intoxicated” was an individual with a duty to report such information. We find that defendant failed to meet this burden. The hearing testimony demonstrated that the lieutenant drafted the report based upon information received from numerous sources. However, he was unable to identify who had reported defendant to be highly intoxicated. Defendant’s argument that, because the scene had been secured, the statement must have come from a responding officer’s personal observations is entirely speculative, as nothing in the language of the report itself or the record confirms that an officer was the source of the statement. It is possible that the clause was included based upon defendant’s fiance’s description of defendant as “drunk as a skunk” when making a 911 call that evening. She, as opposed to responding law enforcement, had no business duty to report … . Because defendant did not meet this foundational requirement by demonstrating that “the initial declarant was] acting within the course of regular business conduct,” he failed to demonstrate the admissibility of the report, as well as the specific statement at issue, pursuant to the business records exception … . People v Mawhiney, 2026 NY Slip Op 04460, Third Dept 7-16-26

Practice Point: Here defendant unsuccessfully sought to have a police report which indicated he was highly intoxicated at the time of the shooting admitted as a business record. The criteria for admission as a business record are explained in depth.

 

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THE JUDGE FAILED TO FOLLOW THE THREE-STEP PROCEDURE FOR ASSESSING A BATSON CHALLENGE; THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE THAT THE PEOPLE’S PURPORTED RACE-NEUTRAL REASONS FOR ELIMINATING A PROSPECTIVE HISPANIC JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not follow the established three-step procedure for assessing defendant’s Batson challenge to the People’s peremptory challenge to an Hispanic prospective juror:

The defendant challenged the People’s use of a peremptory challenge pursuant to Batson v Kentucky (476 US 79) with respect to the challenge to strike the third Hispanic prospective juror. The defendant contended that the People’s prior use of a peremptory challenge to a Hispanic prospective juror in the first round of jury selection and the People’s challenges to the two prospective Hispanic jurors in the second round were racially motivated. The defendant pointed out that the People moved to strike the only three Hispanic prospective jurors. In response to the defendant’s challenge, the County Court required the defendant to articulate an additional reason as to why the defendant contended that the People’s exercise of its peremptory challenge was racially motivated. Defense counsel essentially reiterated his contentions. Thereafter, following the People’s articulation of a race-neutral reason for their exercise of each of the three challenges, the court denied the defendant’s Batson challenge on the ground that the defendant did not carry his prima facie burden. The court failed to reach step three of Batson wherein the burden shifts to the defendant to argue a basis as to why the reasons proffered by the People were pretextual. * * *

… [T]he defendant satisfied step one of Batson … . Accordingly, at that point, the burden shifted to the People to proffer race-neutral explanations for exercising their peremptory challenges to eliminate those prospective jurors … . Thereafter, the court failed to allow the defendant to challenge whether the reasons proffered, although facially neutral, were pretextual and not genuine reasons for the challenges … . People v Williams, 2026 NY Slip Op 04440, Second Dept 7-15-26

Practice Point: Consult this decision for a clear explanation of the three-step procedure for assessing a Batson challenge to the People’s exercise of a peremptory challenge.​

 

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ALTHOUGH THE BIPOLAR-DISORDER DIAGNOSIS WAS MADE “POST-CRIME,” THE EVIDENCE WAS RELEVANT TO DEFENDANT’S “MENTAL DISEASE OR DEFECT” AFFIRMATIVE DEFENSE AND SHOULD NOT HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the psychiatric evidence regarding defendant’s “post-crime” mental health (bipolar disorder) was relevant to defendant’s “mental disease or defect” affirmative defense and should not have been precluded. The psychiatrist could not testify defendant suffered from “bipolar disorder” at the time of offense, but could testify that the disorder takes years to develop, which meets the flexible “relevancy” test:

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” … . …

We conclude that “[i]nasmuch as the psychiatrist’s [prospective] testimony that defendant was suffering from [bipolar disorder, type 1, most recent episode manic with psychotic features] would render a finding of lack of criminal responsibility more probable than it would be without such evidence, the [psychiatrist’s] diagnosis [was] . . . relevant” … . …

Here, although the psychiatrist did not evaluate defendant prior to the crimes and thus could not render a medical opinion that defendant had bipolar disorder on the date of the crimes, “there were indications in [his] testimony that the mental disease from which defendant was suffering could take [years] to develop [before diagnosis] and [that] . . . the [prior medical] records . . . suggest[ed] the existence of some mental disorder a considerable time before the crime[s]” … . …

Finally, we conclude that the error is not harmless … . The preclusion of the psychiatrist’s testimony effectively prevented defendant from mounting his affirmative defense (see Penal Law § 40.15) and severely undermined his ability to separately argue that he lacked the requisite mental state to commit the charged offenses … . Inasmuch as ” ‘it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required’ ” … . People v Williams, 2026 NY Slip Op 04095, Fourth Dept 6-26-26

Practice Point: Consult this decision for insight into the relevancy of evidence. Here a post-crime bipolar disorder diagnosis was deemed relevant to defendant’s “mental disease or defect” affirmatve defense.​

 

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THE POLICE DID NOT HAVE INFORMATION DEMONSTRATING THE TEMPORARY TEXAS REGISTRATION WAS INVALID AT THE TIME THEY IMPOUNDED THE CAR; THE INVENTORY SEARCH WAS IMPROPER AND THE HANDGUNS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the officers who stopped defendant’s vehicle did not have any information that the temporary Texas registration was invalid at the time the vehicle was impounded. Therefore the inventory search was invalid and the handguns should have been suppressed:

“An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched” … . Inventory searches may not be used as “a ruse for a general rummaging in order to discover incriminating evidence” … and, unlike a traffic stop, “will be constitutionally invalid where the search was merely a pretext to search for evidence of a crime” … . “Only a lawfully impounded vehicle may be subjected to an inventory search” … , and “[t]he People bear the threshold burden of demonstrating that the subject vehicle was lawfully impounded at the time of the inventory search” … . People v Boatwright, 2026 NY Slip Op 04071, Fourth Dept 6-26-26

Practice Point: Without a valid reason to impound a car, an inventory search of the car is not justified.​

 

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THE REFEREE DID NOT HAVE JURISDICTION TO DISMISS THE FAMILY OFFENSE PETITION; NEITHER MOTHER NOR THE RESPONDENT HUSBAND (WHO DID NOT APPEAR) CONSENTED TO THE REFEREE’S HEARING THE MATTER; THE POWERS OF A REFEREE ARE EXPLAINED (FOURTH DEPT).

The Fourth Department, reversal the order by the referee dismissing the family offense proceeding, determined the referee was without jurisdiction to decide the matter because neither mother nor respondent husband (who did not appear) consented the referee hearing the matter:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon consent of the parties, except in limited circumstances” … . “Absent the parties’ consent to the reference, the . . . [r]eferee ha[s] the power only to hear and report [their] findings” … . An appropriate order of reference is thus an “essential jurisdictional predicate” to the authority of the referee to act … , and a referee “who attempts to determine matters not referred to [them] by the order of reference acts beyond and in excess of [their] jurisdiction” … .

Here, as noted, petitioner never consented to the Referee hearing the matter. Although CPLR 4317 (b) permits a referee to hear and determine an issue without the consent of the parties where the trial of the issue “will require the examination of a long account,” where the issue is one “of damages separately triable and not requiring a trial by jury,” or “where otherwise authorized by law,” none of those exceptions to the consent requirement applies here. Thus, the Referee “lacked jurisdiction to dismiss the petition” … , even without prejudice. We note in any event that, absent a fact-finding hearing, which did not take place, the Referee had no grounds to dismiss the petition based on insufficient evidence. Matter of Fournier v Perez, 2026 NY Slip Op 04063, Fourth Dept 6-26-26

Practice Point: Consult this decision for a concise explanation of the powers of a Family Court referee.

 

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DEFENDANT WAS OBSERVED WALKING UP AND DOWN DRIVEWAYS IN A RESIDENTIAL NEIGHBORHOOD; WHEN THE POLICE ASKED HIM TO STOP, HE RAN AND THE POLICED PURSUED; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” JUSTIFYING PURSUIT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing the conviction by plea, determined the police did not have “reasonable suspicion” defendant was committing a crime at the time the defendant ran from them. The police were justified in exercising the “common law right of inquiry” because defendant was seen walking in different yards in a residential neighborhood. But the police were not justified in pursuing the defendant when he ran. The gun defendant discarded that the statements made to the police should have been suppressed:

… [T]he encounter began as a level two intrusion, with the officers parking and exiting their vehicle, stating “police,” and asking the defendant to stop … . The officers’ pursuit of the defendant constituted a level three intrusion, requiring a reasonable suspicion that the defendant was involved in a felony or misdemeanor … .. Here, however, the circumstances, which included the defendant’s actions of walking up and down the driveways of 105-31 and 105-33 Farmers Boulevard and across a lawn and toward the rear of a residence on 109th Avenue, “although not inconsistent with culpable [conduct,] are also susceptible of many innocent interpretations” … , and were, “[a]t most . . . equivocal and suspicious” … . Importantly, the officers did not observe the defendant looking into any houses or backyards, and did not observe him carrying or attempting to conceal any tools or weapons. Therefore, the defendant’s actions preceding his interaction with the officers and his flight therefrom did not support a reasonable suspicion of particularized criminal action … . People v Bryant, 2026 NY Slip Op 03976, Second Dept 6-24-25

Practice Point: Walking up and down residential driveways, carrying nothing and not looking into houses, justified exercise of the common law right of inquiry by the police. But defendant’s immediate flight from the police did not justify pursuit.

 

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HERE THE DISTRICT ATTORNEY BROUGHT A PETITION FOR A WRIT OF PROHIBITION TO PROHIBIT THE ENFORCEMENT OF AN ORDER PRECLUDING EVIDENCE BECAUSE THE PEOPLE’S PRODUCTION OF DISCOVERY WAS DEEMED UNTIMELY; A WRIT OF PROHIBITION DOES NOT LIE FOR THIS PURPOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Quirk, determined that the trial judge’s preclusion of evidence based upon the district attorney’s untimely production of discovery was not subject to the extraordinary remedy of prohibition. The petition for a writ of prohibition was brought by the then district attorney:

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

 

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IN THESE TWO DISTINCT CASES, THE DEFENDANTS CHALLENGED THE CONSENT-TO-SEARCH CONDITION OF THEIR PROBATION; IN “BRAZEAL” THE COURT HELD THE CONDITION WAS NOT WARRANTED BY DEFENDANT’S CRIMINAL HISTORY; IN “LORA” THE COURT REFUSED TO CONSIDER THE ARGUMENT BECAUSE IT WAS NOT RAISED BEFORE THE SENTENCING COURT (CT APP).

​The Court of Appeals, reviewing two decisions, with multiple concurring and dissenting opinions, determined (1) in People v Brazeal the probation condition allowing searches by probation officers was deemed inappropriate given defendant’s criminal history, and (2) in People v Lora the defendant made the same challenge to the consent-to-search probation condition, but since the issue was not preserved, merits were not reached:

We conclude that the sentencing court abused its discretion in imposing the consent-to-search condition on Brazeal. Although his conviction was for a crime of violence, at no point was Brazeal shown to otherwise possess firearms or illegal weapons, and the knife used in his crime was an ordinary kitchen knife. The Appellate Division referenced his “history of violence” … , but that characterization overstates the defendant’s relatively remote criminal history. He had a previous conviction for property destruction in Las Vegas, a harassment conviction with “physical contact” in the Bronx, and a youthful offender adjudication for assault in Yonkers, the most recent of which was almost a decade before the present offense. The 2007 youthful offender adjudication is the only other incident that references the use of an unspecified “weapon/instrument,” and only the 2007 and 2009 proceedings included assault charges. None of Brazeal’s arrests in Georgia resulted in further prosecution apart from an outstanding warrant for failure to appear. Aside from these facts, the record reflects no basis for the imposition of the condition. Brazeal has not been assessed as being in need of alcohol or substance abuse treatment, the People concede that substance abuse is not implicated in his case, and his admission of occasional marijuana use in the past does not support further supervision. On this record, the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Brazeal’s “rehabilitation” … .

Because she did not object to the consent-to-search condition before the sentencing court, Lora’s statutory and constitutional challenges are unpreserved for our review … . People v Brazeal, 2026 NY Slip Op 03910, CtApp 6-23-26

Practice Point: To appeal a consent-to-search condition of probation (to the Court of Appeals), the issue must be preserved by raising it in the sentencing court.

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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