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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence:

… [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. “While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence” … . Based on this record, we conclude that County Court’s determination “was based on hearsay alone and therefore cannot stand” … . People v Hawkey, 2025 NY Slip Op 00569, Fourth Dept 1-31-25

Practice Point: Hearsay is admissible at a probation revocation hearing, but hearsay alone will not support revocation.

 

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“MOLINEUX” EVIDENCE DEFENDANT HAD PREVIOUSLY THREATENED HIS WIFE WITH A HANDGUN FOR PERCEIVED INFIDELITY SHOULD NOT HAVE BEEN ADMITTED IN THIS PROSECUTION ALLEGING DEFENDANT POSSESSED A HANDGUN WITH THE INTENT TO USE IT AGAINST HIS STEPCHILDREN; NEW TRIAL ORDERED; THE PEOPLE’S FAILURE TO FILE A REDUCED ACCUSATORY INSTRUMENT AFTER THE JUDGE REDUCED THE CHARGE IN COUNT 3 REQUIRED DISMISSAL OF THAT COUNT (FOURTH DEPT).

The Fourth Department determined that the judge’s Molineux ruling was an error requiring reversal and the People’s failure to file an amended accusatory instrument after the judge reduced the charge required dismissal of the related count:

… [T]he charge of criminal possession of a weapon in the second degree is based on allegations that defendant possessed a handgun with the intent to use it unlawfully against his stepchildren, and the People sought to admit the evidence of defendant’s “systematic abuse” of his wife to show defendant’s motive, intent, absence of mistake, and identity in this case. The evidence, however, is not directly relevant to motive. The evidence of defendant’s past conduct demonstrated a pattern of threatening his wife with the gun for perceived infidelity, but it did not complete a narrative that would explain or support defendant’s sudden aggression against his stepchildren … . The evidence also is entirely unnecessary to establish defendant’s intent. Mere possession of a firearm is “presumptive evidence of intent to use [it] unlawfully against another” (Penal Law § 265.15 [4]). Further, there is no question whether defendant’s alleged actions were the result of accident or mistake … , and defendant’s identity is not at issue.

Moreover, even if the evidence is relevant to an exception under Molineux, the court abused its discretion in determining that its probative value outweighed its potential for prejudice … . Evidence that defendant previously threatened his wife with a gun showed that defendant ” ‘had allegedly engaged in similar behavior on a prior occasion . . . —classic propensity evidence’ ” … . It is ” ‘of slight value when compared to the possible prejudice to [defendant]’ and therefore should not have been admitted” … .

… [B]efore jury selection and at the People’s request, the court reduced the charge in count 3 of the indictment from criminal possession of a weapon in the third degree … to criminal possession of a weapon in the fourth degree … . The People thereafter failed to file a reduced or amended accusatory instrument. Inasmuch as ” ‘[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , count 3 of the indictment must be dismissed … . People v Alexander, 2025 NY Slip Op 00539, Fourth Dept 1-31-25

Practice Point: Consult this decision for a clear demonstration of when evidence of a prior bad act which is similar to the charged offense should be excluded because the prejudice outweighs the probative value.

Practice Point: If the judge grants the People’s request to reduce a charge prior to jury selection, the People must file a reduced accusatory instrument. Failure to do so requires dismissal of the related count in the indictment.

 

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THE JUDGE’S FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION IN THIS ARSON/MURDER CASE REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s arson, murder and reckless endangerment convictions, determined the trial judge should have given the circumstantial evidence instruction to the jury:

“It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … . …[T]his was not a case with ” ‘both direct and circumstantial evidence of . . . defendant’s guilt,’ ” which would negate the need for a circumstantial evidence charge … . Indeed, none of the evidence presented at trial “prove[d] directly a disputed fact without requiring an inference to be made” … .

Further, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . Although ” ‘overwhelming proof of guilt’ cannot be defined with mathematical precision” … , it necessarily requires more evidence of guilt than proof beyond a reasonable doubt. If that were not so, all errors would be harmless in cases where the verdict is not against the weight of the evidence … .

Here, the strongest evidence linking defendant to the crime is the video surveillance recording. As noted, that video, which is grainy and shot from a distance, depicts a flickering or glow as defendant exits the premises, which promptly grows into a blaze as defendant walks away. There is no way to discern from the video the exact moment that the fire is set or precisely how the fire began. “In order for the jury to find defendant guilty it had to make a number of logical leaps connecting defendant to the crimes charged. Had the trial court given the circumstantial evidence charge, alerting the jury of the need to exclude to a moral certainty every other reasonable hypothesis of innocence,” we conclude that the verdict may have been different … . People v Exford, 2025 NY Slip Op 00536, Fourth Dept 1-30-25

Practice Point: In this arson and murder case, the failure to give the circumstantial-evidence jury instruction warranted a new trial. The jury was required to make several “logical leaps,” based upon grainy video evidence showing defendant walking away from a building which caught fire, to convict.

 

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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.

 

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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.​

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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