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THE STANDARD FOR “IMPAIRMENT BY ALCOHOL AND DRUGS” IS THE SAME AS FOR “IMPAIRMENT BY ALCOHOL” IN THE VEHICLE AND TRAFFIC LAW’S DWI SCHEME; THE THIRD DEPARTMENT’S APPLICATION OF THE HIGHER “INTOXICATION” STANDARD TO “IMPAIRMENT BY ALCOHOL AND DRUGS” WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the standard for “impairment” in the context of “aggravated driving while ability impaired by a combination of drugs and alcohol” is the same as for “impairment by alcohol.” The Court of Appeals affirmed the Fourth Department’s rejection of the Third Department’s application of the higher “intoxication” in the context of impairment by drugs:

After the car he was driving with his fifteen-year-old daughter as a passenger was stopped by police, defendant admitted to drinking “a couple of strong beers” and smoking marijuana. He failed several standard field sobriety tests, and an officer certified as a drug recognition expert determined, based on a 12-step evaluation, that defendant was impaired by the combination of alcohol and cannabis and was unable to safely operate a vehicle. The People presented an indictment to the grand jury charging defendant with aggravated driving while ability impaired by a combination of drugs and alcohol with a child in the vehicle (Vehicle and Traffic Law § 1192 [2-a] [b], [4-a]). For purposes of that charge, the prosecutor defined impaired as follows:

“A person’s ability to operate a motor vehicle is impaired by the combined influence of alcohol and drugs when that combination of alcohol and drugs has actually impaired, to any extent, the physical and mental abilities which such person is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.” * * *

… [I]n People v Caden N. [189 AD3d 84, 90-91], the Third Department held that Cruz’s [48 NY2d at 427-428] definition of impairment applied only “in the limited context” of driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192 [1]) and instead defined impairment for drug consumption in accordance with the Cruz standard for alcohol intoxication … . Relying on Caden N., defendant argues that for offenses involving drug use, or drug and alcohol use combined, courts should define impairment using Cruz’s intoxication standard. We disagree with that approach and hold that “impaired” should be interpreted consistently across Vehicle and Traffic Law § 1192 in accordance with the definition that this Court gave that term in People v Cruz and therefore affirm. People v Dondorfer, 2026 NY Slip Op 00823, CtApp 2-17-26

​Practice Point: The standard  for “impairment” in the context of a Vehicle and Traffic Law violation for “impairment by alcohol and drugs” is the same as for “impairment by alcohol.” The higher “intoxication” standard applied by the Third Department for impairment by drugs was rejected.

 

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH DRIVING WHEN HIS ABILITY WAS IMPAIRED BY MARIJUANA WAS FACIALLY SUFFICIENT; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissenting opinion, determined that the accusatory instrument charging defendant with driving while his ability was impaired by marijuana was facially sufficient. The court noted that the Report of Refusal (re: a chemical test for drugs) could not be considered and that, because defendant waived prosecution by information, the less demanding standard for a misdemeanor complaint was applied:

In the accusatory instrument, defendant’s arresting officer made the following factual allegations:

“I observed the defendant driving a car . . . (the key was in the ignition, the engine was running, and the defendant was behind the wheel);”I know defendant was under the influence of drugs because I smelled an odor of marijuana coming from the defendant’s clothing. I observed that the defendant had watery and bloodshot eyes, and I observed that the defendant had ash containing marijuana on his pants. The defendant stated, in substance: I had two puffs of marijuana before you stopped me.“I advised the defendant of his rights regarding the taking of a test to determine the presence of drugs in his urine and the defendant refused to take the test.” * * *​

… The arresting officer observed physical manifestations of the effects of marijuana—specifically, that defendant had watery and bloodshot eyes. Additionally, defendant refused a urine test to determine the presence of drugs in his system. Lower courts have consistently held that such refusal, when considered along with the other allegations in the accusatory instrument, is relevant to determining reasonable cause to believe that the defendant drove while intoxicated or impaired … . … [A] defendant’s refusal to take a chemical test evince consciousness of guilt. People v Morel, 2026 NY Slip Op 00822, CtApp 2-17-26

Practice Point: Here the Report of Refusal was not incorporated into the accusatory instrument and therefore could not be considered in determining the sufficiency of the accusatory instrument.

Practice Point: Because defendant waived prosecution by information, the less demanding standard for the sufficiency of a misdemeanor complaint was applied.

Practice Point: A refusal to take a chemical test evinces a consciousness of guilt and can be considered in analyzing the sufficiency of an accusatory instrument.

 

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IN 2024, ERLINGER V US HELD THAT A JURY MUST DETERMINE WHETHER A LOOKBACK PERIOD RELEVANT TO ENHANCED SENTENCING HAS BEEN TOLLED; BECAUSE THE SENTENCING COURT DETERMINED THAT ERLINGER APPLIED, AND BECAUSE THE SENTENCING COURT DID NOT HAVE THE POWER TO EMPANEL A JURY FOR RESENTENCING, DEFENDANT WAS NOT SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER; ON APPEAL THE MAJORITY HELD THAT THE ERLINGER ISSUE (I.E. WHETHER ERLINGER APPLIED) WAS NOT PRESERVED FOR APPEAL BY THE PEOPLE BECAUSE THEY EXPRESSLY DECLINED TO ARGUE IT; THE DISSENT ARGUED THE ISSUE HAD BEEN PRESERVED AND THE COURT SHOULD HAVE CONSIDERED IT (FIRST DEPT). ​

The First Department, over a comprehensive dissent, affirming Supreme Court, determined the People did not preserve the argument that the defendant should have been sentenced as a persistent violent felony offender (PFV) because Erlinger v US, 602 US 821, did not apply. The sentencing court determined Erlinger did apply. Because Erlinger held that a jury must determine whether the lookback period for PVF status has been extended by tolling, and because Supreme Court did not have the power to empanel a jury for resentencing, Supreme Court determined defendant could not be sentenced as a PVF. Defendant was sentenced as a second violent felony offender. The dissent agued the People had preserved the Erlinger issue and the First Department should have considered it:

Contrary to the dissent’s conclusion, the purpose of the preservation requirement was not served here. By expressly declining to argue that Erlinger does not apply, the People deprived defendant and the court of the opportunity to “probe [the] relevant. . . legal issues” regarding Erlinger’s applicability … .

From the dissent:

The primary question on this appeal is whether, under the United States Supreme Court’s recent decision in Erlinger v United States (602 US 821 [2024]), the Fifth and Sixth Amendments’ guarantee of a jury trial extends to the calculation of periods of tolling in measuring the lookback period used in determining whether a defendant is subject to enhanced sentencing as a recidivist felon — in this case, as a persistent violent felony (PVF) offender, to whom a 10-year lookback period applies …  If it is constitutionally required that a jury determine the tolling, New York’s procedure for making persistent violent felony offender determinations will be substantially disrupted, as Criminal Procedure Law (CPL) § 400.15(7) … provides that such determinations “must” be made at a hearing “before the court without a jury.” The impact on New York’s criminal justice system — which, according to the amicus curiae, held in custody approximately 13,500 second felony offenders and approximately 1,500 persistent felony offenders as of January 1, 2021, collectively accounting for approximately 43.8% of all state prisoners — would be grave.

In my view … the sentencing court erroneously concluded that Erlinger applied to the tolling determination required to bring one of defendant’s two prior violent felony convictions within the 10-year lookback period. Because the court correctly concluded that it had no power under the CPL to empanel a jury to make a tolling determination, it sentenced defendant as a second violent felony offender, based solely on his more recent violent felony conviction, which was within the lookback period without the need for a tolling determination. The People appeal to us from the court’s application of Erlinger, seeking to have the sentence vacated and the matter remanded so that defendant can be resentenced as a PVF offender. People v Moore, 2026 NY Slip Op 00859, First Dept 2-17-16

Practice Point: The People, as well as a defendant, must preserve issues for appeal. Here the People argued defendant should have been sentenced as a persistent violent felony offender (PVF) because Erlinger, a US Supreme Court ruling that a jury must decide lookback issues for enhanced sentencing, did not apply. The sentencing court applied Erlinger and did not sentence defendant as a PVF because a jury could not be empaneled. The People expressly declined to argue that Erlinger did not apply at resentencing and therefore did not preserve the issue for appeal.

 

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SORA RISK-LEVEL POINTS SHOULD NOT HAVE BEEN ASSESSED BASED UPON A JUVENILE DELINQUENCY ADJUDICATION; THE EVIDENCE DID NOT SUPPORT AN AUTOMATIC OVERRIDE FOR AN “ABNORMALITY THAT DECREASES THE ABILITY TO CONTROL IMPULSIVE SEXUAL BEHAVIOR” (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level assessment from three to two determined (1) the court should not have based a 10-point assessment on a juvenile delinquency adjudication and (2) the evidence did not demonstrate defendant suffered from an abnormality that decreased his ability to control impulsive sexual behavior:

Defendant was assessed 10 points under risk factor 8 for his age at the time of his first sex crime based on a juvenile delinquency adjudication when he was 15 years old, and the court rejected defendant’s challenge to the assessment of points under that risk factor. We have repeatedly held, however, that a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination … . * * *

Defendant also contends that the court erred when it,… adjudicated him a level three risk through application of an automatic override based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … . We agree. It is well settled that “[t]he People bear the burden of proving the applicability of a particular override by clear and convincing evidence” … . … While the record supports the conclusion that defendant suffered from mental illness and that he exhibited impulsive behavior, there was no clinical assessment in the record establishing that his mental illness decreased his ability to control his behavior. Of note, neither the People nor the Board of Examiners of Sex Offenders requested that the court apply the automatic override here and, further, defendant never had the opportunity to oppose use of the override before the court decided to apply it. People v Singleton, 2026 NY Slip Op 00756, Fourth Dept 2-11-26

Practice Point: A court cannot assess SORA risk-level points based on a juvenile delinquency adjudication.

Practice Point: Consult this decision for insight into the evidence required to apply an automatic override in a SORA risk-assessment proceeding based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … .

 

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THE JUDGE IN THIS AGGRAVATED CRUELTY TO ANIMALS CASE SHOULD NOT HAVE REDUCED THE COUNTS IN THE INDICTMENT ABSENT A WRITTEN MOTION OR A WAIVER BY THE PEOPLE; THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE INDICTMENT; THE JUDGE SHOULD NOT HAVE DETERMINED DEFENDANT COULD NOT HAVE FORMED THE REQUISITE INTENT DUE TO MENTAL DISEASE OR DEFECT; ONLY A JURY CAN MAKE THAT DETERMINATION (FOURTH DEPT).

The Fourth Department, reversing County Court in this aggravated cruelty to animals case, determined (1) the judge should not have reduced the counts in the indictment absent a written motion and (2) the evidence presented to the grand jury was legally sufficient to support the indictment. Defendant put three kittens in a knotted pillowcase left them on a balcony during a snow storm. They were discovered under several feet of snow. Two of the kittens died. The judge apparently concluded the defendant, due to mental disease of defect, was not capable of forming the intent to commit the offense. The Fourth Department noted that only a jury can make that determination:

… County Court erred in reducing the counts without a written motion requesting such relief. “A motion to dismiss an indictment pursuant to [CPL] 210.20 must be made in writing and upon reasonable notice to the people” (CPL 210.45 [1] …). “The procedural requirements of CPL 210.45 must be adhered to even when consideration of the dismissal is upon the court’s own motion” … . Unless those requirements have been waived by the People, “[t]he failure . . . to comply with the statutory mandates requires a reversal” … . * * *

We conclude that the evidence before the grand jury was legally sufficient to establish that defendant, with no justifiable purpose, intentionally killed the kittens and that defendant did so with aggravated cruelty inasmuch as defendant killed the kittens in a manner that inflicted extreme pain on the dying animals … or did so in a manner likely to prolong the animals’ suffering … .

To the extent that the court reduced the counts on its own finding that defendant could not form the requisite intent, that was improper weighing of the evidence inasmuch as “consideration of a potential defense of mental disease or defect should rest exclusively with the petit jury” … . People v Taylor, 2026 NY Slip Op 00738, Fourth Dept 2-11-25

Practice Point: A judge cannot on the court’s own motion reduce counts of an indictment. There must be a written motion absent a waiver by the People.

Practice Point: A judge cannot, sua sponte, find that defendant could not form the required intent to commit the charged offense due to mental disease or defect. Only a jury can make that determination.

 

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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE INITIAL POLICE CONTACT WITH THE DEFENDANT AS UNJUSTIFIED; THE MATTER WAS REMITTED FOR A SUPPRESSION HEARING (FOURTH DEPT).

The Fourth Department, ordering a suppression hearing, determined defense counsel was ineffective in failing to challenge whether the police were justified in initiating the encounter with the defendant based upon a vague and ambiguous 911 call:

We conclude that the record establishes that defense counsel could have presented a colorable argument that the police officer’s actions were either not justified at the inception of the encounter or otherwise not reasonably related in scope to the circumstances presented (see De Bour, 40 NY2d at 215). Here, the officer’s encounter with defendant was based on a 911 call from a security guard at a nearby restaurant who said that he observed a man who had what “looks like a black phone, but then again . . . looks like a gun.” The security guard provided a description of the individual, and the guard said that he could not be sure, but that he thought the man might have been part of a dispute that had taken place at the restaurant earlier in the day. Notably, County Court held a Huntley hearing at which the arresting officer testified, but the testimony of the officer as well as his body cam footage, which was admitted at the hearing, presented a ” ‘close [question] under [the] complex De Bour jurisprudence’ ” regarding the legality of the police encounter … . People v Wyatt, 2026 NY Slip Op 00720, Fourth Dept 2-11-26

Practice Point: Defense counsel was deemed ineffective for failing to challenge the initial encounter between the defendant and the police. The remedy was remittal for a suppression hearing.​

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:

… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.

… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *

Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime.  People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26

Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.

Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.

 

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DEFENDANT BASED HIS DECISION TO PLEAD GUILTY, IN PART, ON INACCURATE INFORMATION ABOUT HIS SENTENCING EXPOSURE; GUILTY PLEAS VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty pleas, determined the misinformation provided to the defendant about his sentencing exposure rendered the pleas invalid:

Defendant was told that he faced the possibility of serving two consecutive 15-year sentences if he elected to go to trial. At most, however, he was facing 20 years because of the statutory cap (see Penal Law § 70.30 [1] [e] [i]). Unbeknown to him, he was weighing the benefit of a plea offer of 20 years when in reality, it was the maximum he would serve even if convicted after trial. Defendant was not told about the capping statute and therefore lacked a “full understanding of what his plea connotes and of its consequence” … . This is particularly true because defendant’s guilty plea afforded him the exact sentence he would have served. The record is also clear that defendant remained conflicted about pleading guilty and sought to withdraw his plea.

The totality of the circumstances reflect that defendant’s sentencing exposure played a decisive role in his decision to plead guilty, and his erroneous understanding that he faced 30 years in prison if he was convicted after trial had an “impact on [his] judgment” significant enough to render his guilty plea not knowing, voluntary and intelligent … . People v Ramos, 2026 NY Slip Op 00430, First Dept 1-29-26

Practice Point: Here defendant agreed to a 20-year sentence with the understanding he could be sentenced to 30 years after trial. In fact, his sentence after trial would be capped at 20 years. His guilty pleas were not knowing, voluntary and intelligent.

 

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THE PROBATION-CONDITION REQUIRING DEFENDANT TO PAY THE MANDATORY SURCHARGE AND COURT FEES WAS STRUCK BECAUSE DEFENDANT IS INDIGENT; THE FACIAL CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS WERE NOT PRESERVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) the challenge to the probation condition that defendant pay the mandatory surcharge and court fees survives the waiver of appeal; (2) the condition should be struck because defendant is indigent; (3) the facial constitutional challenges to probation conditions were not preserved:

In determining whether a condition is reasonably necessary and related to a defendant’s rehabilitation, the Court must consider the particular circumstances of a defendant’s case … .

Defendant, who is indigent and a first-time offender, has only sporadic income and otherwise has been supported by his mother. Under these circumstances, the requirement that he pay a total of $375 in surcharges and fees as a condition of probation “will not assist in ensuring [that] he leads a law-abiding life and is not reasonably related to his rehabilitation” … . Accordingly, that condition is stricken. People v Acosta, 2026 NY Slip Op 00324, First Dept 1-27-26

Practice Point: The probation-condition requiring payment of the mandatory surcharge and court fees should not have been imposed on this indigent defendant.​

 

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TWO IRRELEVANT PROBATION CONDITIONS STRUCK, NON-CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS NEED NOT BE PRESERVED; FACIAL CONSTITUTIONAL CHALLENGES SURVIVE A WAIVER OF APPEAL BUT MUST BE PRESERVED; AS-APPLIED CONSTITUTIONAL CHALLENGES ARE PRECLUDED BY THE WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) non-constitutional challenges to probation conditions need not be preserved for appeal; (2) although the facial constitutional challenges to probation conditions survive a waiver of appeal, they were not preserved for appeal; (3), the as-applied constitutional challenges are precluded by the waiver of appeal; and (4) two probation conditions must be struck as not relevant to defendant’s criminal history or personal life. In addition, the decision identifies several probation conditions which were deemed properly imposed in this drug-possession case:

At the time of his arrest, defendant possessed 100 glassines of heroin and 50 vials of crack cocaine. Accordingly, the sentencing court providently deemed it “reasonably necessary” to order defendant to “[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people” “to insure that the defendant will lead a law-abiding life or to assist him to do so” … . Based on defendant’s selling of heroin, the court also properly ordered him to “[w]ork faithfully at a suitable employment or pursue a course of study or vocational training … that can lead to suitable employment” and to “[s]ubmit proof of such employment, study or training … . For the same reason, the court providently required defendant to submit to testing for alcohol and illegal substances and to participate in substance abuse programming … . …

There is … no evidence to support requiring defendant, who has no children, to “[s]upport dependents and meet other family responsibilities” … . … [T]here is no evidence to support requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang … “. People v Tompson, 2026 NY Slip Op 00325, First Dept 1-27-26

Practice Point: Consult this decision for insight into what probation conditions are appropriate for a drug-possession conviction.

Practice Point: Consult this decision for insight into the appealability of challenges to probation conditions.

 

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