You are here: / Criminal Law

BECAUSE THE OFFENSE TO WHICH DEFENDANT PLED GUILTY (ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD) WAS NOT A LESSER INCLUDED OFFENSE OF ANY OFFENSE CHARGED IN THE INDICTMENT, IT IS NOT CLASSIFIED AS A VIOLENT FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT). ​

The Second Department determined defendant should not have been sentenced as a second violent felony offender. Defendant pled guilty to attempted criminal possession of a weapon third, which was not a lesser included offense of any of the offenses charged in the indictment. Therefore the attempted criminal possession of a weapon third can not be classified as a violent felony:

Penal Law § 70.02 defines a class E violent felony offense, in pertinent part, as “an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law” … in turn defines a ‘lesser included offense’ as one where the defendant pleads ‘to an offense of lesser grade than one charged in a count of an indictment'” … . Thus, a plea of guilty to attempted criminal possession of a weapon in the third degree “constitutes a violent felony offense only when the defendant has been initially charged with criminal possession of a weapon in the third degree and pleads guilty to the attempted crime as a lesser included offense” … . Here, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree as an added count to the indictment, which did not charge him with the completed crime of criminal possession of a weapon in the third degree. Under the circumstances, the Supreme Court should not have sentenced the defendant as a violent felony offender … . People v Nyack, 2023 NY Slip Op 01532, Second Dept 3-22-23

Practice Point: Here defendant pled guilty to attempted criminal possession of a weapon third. Because that offense was not a lesser included offense of any offense charged in the indictment, it is not classified as a violent felony. Therefore defendant should not have been sentenced as a second violent felony offender.

 

, ,

ALTHOUGH THE DEFENDANT WAS AWARE THE GUILTY PLEA MAY HAVE A NEGATIVE IMPACT ON HIS IMMIGRATION STATUS HE WAS NOT SPECIFICALLY INFORMED DEPORTATION WAS POSSIBLE; MATTER SENT BACK TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE THE PLEA (SECOND DEPT). ​

The Second Department determined defendant was not informed of the possibility of deportation before entering the guilty plea, although defendant was aware the plea may have a negative impact on his immigration status.. The issue need not be preserved for appeal. The matter was sent back to afford defendant the opportunity to move to vacate the plea:

At the plea proceeding, the court questioned the defendant as to whether he had discussed with defense counsel “the possible negative impact on [his] immigration status as a result of [his] pleas of guilt.” The defendant replied: “Yes. I did explain to him that I was concerned about that.” The court then inquired whether the defendant had “an opportunity to discuss these pleas and their impact on [his] immigration status with an immigration attorney.” In response, the defendant indicated that he had discussed the matter with an immigration attorney, who had informed him of the “possibility” that he would lose “TPS [Temporary Protected Status].” The court did not advise the defendant of the possibility of deportation as a consequence of the guilty plea. People v Hernandez, 2023 NY Slip Op 01530, Second Dept 3-22-23

Practice Point: Here the negative impact of the guilty plea on defendant’s immigration status was discussed prior to his entering the plea, but the possibility of deportation was not specifically addressed. The defendant was given the opportunity to move to vacate the plea. Under the facts, preservation was not required.

 

,

FORMER SISTERS-IN-LAW WHO LIVED ONE MILE APART AND SAW EACH OTHER FREQUENTLY FOR 30 YEARS HAD AN “INTIMATE RELATIONSHIP” WHICH SUPPORTED THE FAMILY OFFENSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the long-term relationship (as sisters-in-law) qualified as an “intimate relationship” which supports a family offense proceeding:

For purposes of Family Court Act article 8, “members of the same family or household” is defined to include “persons related by consanguinity or affinity,” and “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … …

… [T]he petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. Beyond expressly excluding from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” … , “the Legislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . Factors to consider include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

… [T]he petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children … . Matter of Eno v Illovsky, 2023 NY Slip Op 01506, Second Dept 3-22-23

Practice Point: A family offense proceeding can be brought in Family Court only if there was an “intimate relationship” between petitioner and respondent. Here petitioner and respondent had been sisters-in-law for 30 years. lived a mile apart and had seen each other frequently. Their relationship was an “intimate relationship” within the meaning of the Family L

​ THE MISDEMEANOR INFORMATION WAS BASED ON THE POLICE OFFICER’S UNEXPLAINED CONCLUSION THE DOCUMENT WAS FORGED AND DID NOT ALLEGE FACTS TO SUPPORT ALL THE ELEMENTS OF THE OFFENSE; CONVICTION REVERSED AND INFORMATION DISMISSED (SECOND DEPT).

The Second Department, reversing the conviction and dismissing the misdemeanor information, determined the factual allegations in the information were not sufficient to provide notice of the charged offense. The information relied on the police officer’s conclusory statement that the document was forged:

Where … an allegation “involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument” … .

… [T]he information failed to include sufficient factual allegations regarding the basis for the officer’s conclusion that the “Texas buy tag” was forged. Mere reliance on “his training in the detection and identification of forged instruments” is insufficient. Although the officer made reference to the use of “Z-finest,” he did not explain what “Z-finest” is or how it helped him determine that the tag was forged. Further, he did not explain or describe the Texas “buy tag.” These allegations are too conclusory to meet the prima facie case requirement on the issue of whether the buy tag was a forgery … .

… [E]ven assuming that the information sufficiently alleged that the buy tag was a forgery, the information failed to provide sufficient factual allegations to “establish a presumption that [the] defendant had knowledge of the forged nature of the instrument” … . People v Rodriguez, 2023 NY Slip Op 01535, Second Dept 3-22-23

Practice Point: A misdemeanor information must include factual allegations which support every element of the charged offense. Here the police officer’s unexplained conclusion the document was forged was insufficient. In addition the element requiring knowledge the document was forged was not addressed by the factual allegations. The conviction was reversed and the information dismissed.

 

VEHICLE AND TRAFFIC LAW 1192(2) (DWI) IS A LESSER INCLUDED OFFENSE OF VEHICLE AND TRAFFIC LAW 1192(2-A) (AGGRAVATED DWI) (SECOND DEPT). ​

The Second Department noted that driving while intoxicated in violation of Vehicle and Traffic Law 1192(2) is a lesser included offense of aggravated driving while intoxicated in violation of Vehicle and Traffic Law 1192 (2-a):

… [D]riving while intoxicated in violation of Vehicle and Traffic Law § 1192(2) is a lesser included offense of aggravated driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2-a) (see CPL 300.30[4] … ). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2) and the sentence imposed thereon, and dismiss that count of the indictment … .  People v Watson, 2023 NY Slip Op 01538, Second Dept 3-22-23

Practice Point: Vehicle and Traffic Law 1192(2) (DWI) is a lesser included offense of Vehicle and Traffic Law 1192(2-a) (aggravated DWI).

 

,

EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP).

The Court of Appeals, in two concurring opinions, determined the matter should be sent back to the Appellate Term for consideration of defendant’s argument his plea-bargained sentence (a $500 fine) was unduly harsh or severe. An appellate court’s power to reduce an unduly harsh or severe sentence can be applied, even when the sentence was part of a plea bargain:

The Appellate Term concluded that there was “no basis for reducing the fine” … . Although the Court was not required to go further and set forth the basis for its conclusion (see CPL 470.25 [1] …), here, it did so, reasoning that “[d]efendant received the precise sentence for which he had bargained, which was within the permissible statutory range” …  . In other words, the sentence was legal and bargained-for. Certainly, the Appellate Term cannot be faulted for considering and addressing the legality of the sentence because the intermediate appellate courts “cannot allow an illegal sentence to stand” … . However, the legality of the sentence was irrelevant to the entirely separate issue of whether it was unduly harsh or severe … , and it was improper for the Appellate Term to treat the bargained-for nature of defendant’s sentence as dispositive of his challenge to the severity of the sentence. People v Ba, 2023 NY Slip Op 01468, CtApp 3-21-23

Practice Point: An intermediate appellate court is constrained to consider whether a sentence is unduly harsh or severe, even where the sentence was agreed to by the defendant as part of a plea bargain.

 

,

THE THIRD DEPARTMENT HAS BEEN APPLYING THE WRONG STANDARD TO THE REDUCTION OF A SENTENCE IN THE INTEREST OF JUSTICE FOR DECADES; HOWEVER, BECAUSE THE THIRD DEPARTMENT HAS RECENTLY STOPPED APPLYING THE WRONG STANDARD, THIS APPEAL IS MOOT (CT APP),

The Court of Appeals determined the sentencing issue raised by the defendant (Baldwin) was moot. Judge Wilson, in a concurring opinion, explained that the standard applied by the Third Department for reduction of a sentence in the interest of justice is incorrect:

The question presented on this appeal is whether, for the past several decades, the Third Department has imposed an erroneous legal standard on criminal defendants seeking a reduction of their sentences in the interest of justice. Mr. Baldwin points to countless Third Department cases, including his own, in which the Third Department employed a test requiring a showing of extraordinary circumstances or abuse of discretion for it to exercise its interest of justice jurisdiction to modify a sentence. Relying on the statutory language empowering the Appellate Division to reduce “unduly harsh or severe” sentences in the interest of justice (CPL 470.15 [6] [b]), Mr. Baldwin contends that the Third Department’s test constitutes an incorrect legal standard.

Mr. Baldwin argues that the Third Department’s requirement that a defendant show a clear abuse of discretion or extraordinary circumstances is contrary to both our case law and the practices of the other Appellate Division departments. In People v Delgado, we emphasized that the Appellate Division’s “broad, plenary power to modify a sentence may be exercised, if the interest of justice warrants, without deference to the sentencing court” (80 NY2d 780, 780 [1992]). Mr. Baldwin contends that the Third Department’s standard is an outlier: it is used by no other department, and has been expressly rejected by the Fourth Department (see eg People v Thomas, 194 AD3d 1405, 1406 [4th Dept 2021] [“We are compelled to emphasize once again that, contrary to the People’s assertion, a criminal defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court in order to obtain a sentence reduction under CPL 470.15 (6) (b)”] [internal quotations omitted]).

Here, however, as Mr. Baldwin himself points out, the issue is not likely to recur. The Third Department, to its great credit, apparently noticed the pendency of this appeal and the issue it raised, after which it corrected its longstanding use of the wrong standard, making repetition of the error unlikely … . People v Baldwin, 2023 NY Slip Op 01467, CtApp 3-21-23

Practice Point: The Third Department had been using the wrong standard for the reduction of a sentence in the interest of justice for decades but has recently corrected the problem, rendering this appeal moot.

 

,

FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).

The Fourth Department determined that a .22 caliber magazine found in defendant’s pocket in a street stop should have been suppressed. Although the defendant fled, that alone was not enough to justify the search and seizure:

… [T]he police witness testified that he received a report that two black males wearing dark clothing had fled the scene of an armed robbery. Soon after receiving the report, while driving in the vicinity of the incident, the officer observed two individuals in dark clothing, who fled as soon as the officer stopped his vehicle. The officer could not determine the gender or race of the individuals as he approached because they were facing away from him. Assuming, arguendo, that police lawfully approached defendant and the second individual to request information about the robbery … , we conclude that the subsequent pursuit of defendant was unlawful. The officer’s testimony did not establish that he determined that the individuals matched the sex or race of the robbery suspects before he undertook pursuit, and the evidence was therefore insufficient to demonstrate that the officer had ” ‘a reasonable suspicion that defendant ha[d] committed or [was] about to commit a crime’ ” … . Although defendant ran from the officer, “[f]light alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . People v Austin, 2023 NY Slip Op 01442, Fourth Dept 3-17-23

Practice Point: The flight of someone approached by the police on the street, standing alone, is not enough to justify a pursuit, seizure and search of the person.

 

DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial:

Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined that she had received more than $14,000 in overpayments during the course of her employment as a registered nurse. …  … County Court … determined that HomeCare and its insurance carrier were entitled to restitution in the amount of $24,469.10 …: $14,207.67 for overpayments made to defendant in wages and mileage reimbursements … , $9,658.02 to HomeCare for labor costs incurred with respect to its employees who investigated defendant’s crime and appeared at her trial; and $603.41 to HomeCare for mileage, meal and hotel expenses incurred by its employees who appeared at trial.

We conclude that the labor costs allegedly incurred by HomeCare for employees who investigated the crime are not “actual out-of-pocket” losses within the meaning of Penal Law § 60.27. … With respect to the travel expenses incurred by HomeCare employees who appeared at defendant’s trial, we note that … section 60.27 does not impose a duty on the defendant to pay for the costs associated therewith inasmuch as such expenses are not directly caused by the defendant’s crime. …

The People rely on People v Denno (56 AD3d 902, 903-904 …), where the Third Department determined that the sentencing court did not improvidently exercise its discretion when it ordered that the defendant pay reparations to the victim’s mother to cover the expenses of traveling by airplane from Florida to New York to speak at sentencing, and to cover the lost wages caused by missing four days of work. … [W]e do not follow Denno because we do not read Penal Law § 60.27 as requiring a criminal defendant to pay for expenses incurred by the victim to testify at trial or investigatory costs incurred by the victim. People v Case, 2023 NY Slip Op 01438, Fourth Dept 3-17-23

Practice Point: Here the defendant was convicted of grand larceny for overcharging her employer. The restitution should not have included the employer’s labor costs associated with investigating the crime or the travel expenses for witnesses who testified at trial. Re: the costs incurred by witnesses who testified at trial, the Fourth Department refused to follow the Third Department.

 

,

THE EVIDENCE OF “PHYSICAL INJURY” IN THIS ASSAULT SECOND PROSECUTION WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s second degree assault conviction, determined the physical-injury element of the offense was not supported by legally sufficient evidence:

… [T]he evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding … . Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer’s forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer’s arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm … . People v Dowdell, 2023 NY Slip Op 01432, Fourth Dept 3-17-23

Practice Point: Here the evidence of “physical injury” was deemed legally insufficient to support the assault second conviction. The decision analyzes all of the relevant aspects of “physical injury” including pain.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy