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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s manslaughter conviction, determined the People did not disprove the justification defense. The evidence demonstrated shots were fired at the car in which defendant was a passenger before defendant fired his weapon:

A person is justified in using deadly physical force against another person if they “reasonably believe[ ] that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). Deadly physical force “encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the ‘imminent threat’ of deadly force,” and therefore “the imminent threat to use a gun constitute[s] the threat of deadly physical force even if the gun is never fired” … . The evidence at trial established that defendant told the police that the unnamed assailants started shooting at the occupants of the vehicle before any shots were fired by those inside the vehicle. A witness to the shootout testified that she saw one of the unnamed assailants remove a gun out of his pocket and then she saw and heard gunshots. The evidence further established that multiple rounds were fired at the vehicle from the outside. Contrary to the People’s contention, they did not establish beyond a reasonable doubt that defendant, who was not the driver of the vehicle, could have retreated with complete personal safety before he used deadly physical force, or that he knew he could do so … . People v Major, 2026 NY Slip Op 04585, Fourth Dept 7-24-26

Practice Point: Multiple shots were fired at the vehicle in which defendant was a passenger before defendant fired his weapon. The People failed to disprove the justification defense and the manslaughter conviction was reversed.

 

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DEFENDANT DRIVER STRUCK PLAINTIFF PEDESTRIAN AS HE ATTEMPTED TO CROSS THE ROAD; DEFENDANT DID NOT DEMONSTRATE SHE COULD NOT HAVE SEEN PLAINTIFF AND COULD NOT HAVE AVOIDED STRIKING PLAINTIFF; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant driver did not demonstrate she could not have seen plaintiff pedestrian and could not have avoided striking plaintiff as he attempted to cross the road:

… [D]efendant, “as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident” … . Defendant failed, however, to meet her initial burden with respect to either her negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant’s evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant’s submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant’s vehicle.

We agree with plaintiff that defendant’s own evidence raises triable issues of fact whether she ” ‘could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident’ ” (Uhteg, 200 AD3d at 1697). In Uhteg, as here, “the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run” … . Moreover, there is no evidence that defendant’s view of the oncoming lanes or median area was obscured … . Koff v Lawson, 2026 NY Slip Op 04582, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of what a defendant must demonstrate for summary judgment where defendant driver strikes plaintiff pedestrian as plaintiff attempted to cross the road.

 

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TO RENDER THE “HARMLESS ERROR” DOCTRINE INAPPLICABLE, THERE MUST BE “OVERWHELMING” EVIDENCE OF GUILT, WHICH IS MORE THAN “PROOF BEYOND A REASONABLE DOUBT;” HERE THERE WAS “OVERWHELMING” EVIDENCE OF GUILT FOR THE BURGLARY COUNTS, BUT ONLY “PROOF BEYOND A REASONABLE DOUBT” FOR THE SHARED INTENT ELEMENT OF THE ASSAULT COUNT; THEREFORE THE ERROR IN ADMITTING IDENTIFICATION EVIDENCE COULD NOT BE DEEMED HARMLESS FOR THE ASSAULT COUNT AND A NEW TRIAL ON THAT COUNT WAS ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s assault conviction, determined the evidence defendant shared the codefendant’s intent to cause physical injury was not “overwhelming,” therefore the harmless error standard did not apply. The error, which was deemed harmless for other counts for which the evidence was deemed “overwhelming,” was the introduction of identification evidence where no CPL 710.30 notice was provided by the People. The motion court determined the identification was “confirmatory,” but the Fourth Department disagreed because the victim only met defendant once for a few minutes:

An identification is considered confirmatory only where, “as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . The exception “does not apply where the familiarity emanates from a brief encounter” … .

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was ” ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure … . * * *

The People were required to prove, among other things, that defendant shared the codefendant’s intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt … and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge … . We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment. People v Hurst, 2026 NY Slip Op 04717, Fourth Dept 7-24-26

Practice Point: This decision highlights a difference between a “legal sufficiency” and a “weight of the evidence” analysis on appeal. Under a “weight of the evidence” analysis, if the proof of guilt is “beyond a reasonable doubt” (i.e., legally sufficient), but is not “overwhelming,” the harmless error doctrine in inapplicable. [EDITOR’S NOTE: I HAVE DIFFICULTY UNDERSTANDING THE CRITERIA FOR “LEGAL INSUFFICIENCY” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” AT THE APPELLATE LEVEL. THIS DECISION APPEARS TO ILLUSTRATE ONE OF THE DIFFERENCES. IF ANYONE CAN HELP ME UNDERSTAND THE RELEVANT ANALYTICAL CRITERIA, I WOULD BE MOST GRATEFUL.]

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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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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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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