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THE EVIDENCE THAT DEFENDANT HAD USED ALCOHOL TO EXCESS AT THE TIME OF THE CRIME WAS CONFLICTING AND INSUFFICIENT; IN ADDITION, THE DEFENDANT WAS NOT IN CUSTODY OR UNDER SUPERVISION AT THE TIME OF ALLEGED MISCONDUCT; THEREFORE 25 POINTS WERE TAKEN OFF DEFENDANT’S RISK-LEVEL ASSESSMENT (FOURTH DEPT).

The Fourth Department determined the evidence did not support the finding that defendant was intoxicated at the time of the offense. In addition the SORA court wrongly found that defendant was in custody or under supervision at the time of alleged misconduct. Therefore a total of 25 points were wrongly applied to the risk-level assessment:

… [I]n order to demonstrate that [defendant] was abusing . . . alcohol at the time of the offense, the People [were required to] show by clear and convincing evidence that [defendant] used alcohol in excess . . . at the time of the crime” … . Here, the victim informed a caseworker that, on the night of that incident, defendant had been “outside by the fire drinking.” Defendant’s ex-wife also indicated in her victim impact statement that defendant was “drunk” on the night of that incident, but it is unclear whether the source of her information was the victim or hearsay from an unidentified third-party with whom the victim had spoken and whose reliability could not be tested … . In contrast, the victim denied that defendant had been drinking at the time of the second incident and indicated that defendant “normally doesn’t drink.” In his interview with probation, defendant denied “current alcohol or substance use and . . . any current or past treatment for such.” We conclude that there is no indication in the record that defendant abused alcohol by drinking in excess, that defendant became intoxicated, or that alcohol affected his behavior during the incident … . Nor is it “clear from the record what time the drinking occurred, how much [defendant] had to drink, and how much time passed before he abused [the] victim” … . The People thus failed to establish that defendant abused alcohol at the time of the offensive conduct, and the court erred in assessing 15 points under risk factor 11. People v Crane, 2025 NY Slip Op 01530,Fourth Dept 3-14-25

Practice Point: Here the evidence that defendant had used alcohol to excess at the time of the crime was weak and conflicting, rendering it insufficient to support the 15 points assessed on that ground.

 

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ALTHOUGH THE DEFENDANT WAS NOT THE PAROLE ABSCONDER FOR WHOM THE POLICE HAD AN ARREST WARRANT, THE MAJORITY DETERMINED THE PEOPLE PROVED THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE PAROLE ABSCONDER WHEN THEY APPROACHED HIM, WHICH JUSTIFIED THE PURSUIT OF THE DEFENDANT; TWO DISSENTERS ARGUED THE PROOF AT THE SUPPRESSION HEARING, WHICH DID NOT INCLUDE TESTIMONY BY THE OFFICERS WHO FIRST APPROACHED DEFENDANT, DID NOT DEMONSTRATE THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE SUBJECT OF THE ARREST WARRANT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police reasonably (but erroneously) believed defendant was the parole absconder for whom they had an arrest warrant. The pursuit and arrest, based in part on observing the defendant discard an handgun, were deemed proper:

… [T]here is no dispute that the apprehension team had probable cause to arrest the parole absconder inasmuch as an arrest warrant had been issued. As for the second element, “[t]he reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest”… , and “great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous” … . Even though “[f]light alone . . . is insufficient to justify [a] pursuit” … , we conclude that under the totality of the circumstances present here the arresting officer’s testimony establishes that he reasonably believed that defendant was the absconder when he initiated his pursuit. Defendant closely matched the height and weight provided in the parole absconder’s description, covered his face with a ski mask, was in the location provided by the absconder’s girlfriend, and immediately fled upon being approached by one of the apprehension team’s unmarked vehicles. Inasmuch as the initial pursuit and subsequent arrest of defendant—which occurred after he was observed holding and then discarding a handgun—were lawful, the court did not err in refusing to suppress the physical evidence recovered during the post-arrest search of defendant and the surrounding area … .

From the dissent:

In our view, however, it does not appear that the pursuing officers had even a subjectively reasonable belief that defendant was the parolee for whom they had an arrest warrant. Indeed, the People, who are “put to the burden of going forward to show the legality of the police conduct in the first instance” … , failed to adduce anything other than that defendant matched the generic height and weight of the average male in the general population. Notably, the People failed to call the approaching officers, and thus adduced no testimony with respect to their actions, observations, or whether they believed—reasonably or not—that defendant was the parole absconder, particularly in the absence of any evidence that they chased defendant when he fled.

The officers who did testify at the suppression hearing—the pursuing officers—testified simply that defendant roughly matched the height and weight of the parolee and that he fled. As set forth above, the pursuing officers did not testify that the approaching officers gave chase when defendant fled. Coupled with the pursuing officer’s testimony that at the point when defendant fled, he was “free to leave,” the record at the suppression hearing undercuts any possible claim that the pursuing officers were not simply chasing a man who fled, but that they actually believed defendant to be the parolee for whom they had an arrest warrant. People v Jones, 2025 NY Slip Op 01524, Fourth Dept 3-14-25

Practice Point: Consult this decision for insight into the validity of an arrest of the “wrong person,” i.e., the approach, pursuit and arrest of one person based upon an arrest warrant for issued for another.

 

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THE MAJORITY CONCLUDED THE HEARSAY ALLEGATIONS IN THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE TO SEARCH TWO DIFFERENT RESIDENCES; THE TWO-JUSTICE DISSENT ARGUED THE APPLICATION DID NOT PROVIDE PROBABLE CAUSE TO SEARCH ONE OF THE TWO RESIDENCES, I.E., THERE WERE NO DETAILS DESCRIBING THE NARCOTICS THE INFORMANT OBSERVED IN THE RESIDENCE AND NO INDICATION WHEN THE OBSERVATON WAS MADE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the hearsay allegations in the search warrant application were sufficient to provide probable cause to search two different residences. The two dissenting justices agued that the search warrant application focused on one residence and barely mentioned the other:

From the dissent:

Here, the warrant application in question concerned two addresses, i.e., 205 Curtis Street and 215 Curtis Street, but contained a mere two statements based on the confidential informant’s claimed knowledge regarding 205 Curtis Street. Specifically, it stated that “[t]he [confidential informant] has been inside 205 Curtis St[reet] on multiple occasions and is aware that narcotics are kept inside the location,” and that “[t]he [confidential informant] . . . has been to 205 and 215 Curtis Street multiple times for narcotics transactions.” The remaining contents of the six-page, single-spaced warrant application focused on 215 Curtis Street.

… [W]e agree with defendant that the hearsay information regarding 205 Curtis Street does not provide the requisite basis of knowledge justifying the issuance of the search warrant for that address … . First, we note that the application neither details any transaction that occurred at 205 Curtis Street, nor specifies the type of narcotic exchanged during such transaction. Second, no time frame is provided for the hearsay statements concerning 205 Curtis Street, and it is therefore entirely possible that the unspecified drug transaction occurred years or decades ago. In fact, the warrant application entirely fails to set forth what was actually observed by the informant at 205 Curtis Street or when it was observed … . On this record, we conclude that there is no basis provided to support the informant’s claimed awareness of narcotics at 205 Curtis Street. People v Berry, 2025 NY Slip Op 01523, Fourth Dept 3-14-25

Practice Point: According to the dissent, the bare allegation the informant observed narcotics in a residence, without any detail and without any time frame, did not provide probable cause for the search of that residence.

 

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THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD” STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF SETTLEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the purported stipulation of settlement of this legal malpractice action did not meet the requisite criteria and could not be enforced:

It is well settled that ” ‘[a]n oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect’ ” (… see generally CPLR 2104). Here, however, in support of her cross-motion, plaintiff failed to attach any transcripts or other evidence substantiating the purported settlement agreement. Indeed, we conclude that “[t]he record provides no basis for concluding that an enforceable stipulation was entered into between the parties” inasmuch as “[p]ertinent discussions took place off the record” … . Plaintiff also failed to establish that the terms of the settlement agreement were ever filed with the county clerk (see CPLR 2104 …).

Even if plaintiff had submitted written evidence of the parties’ purported stipulation of settlement, we conclude that said stipulation was not entered in “open court” inasmuch as there is no dispute that the alleged settlement was reached during a pretrial conference with the court’s law clerk … . Indeed, the “open court requirement . . . is not satisfied in locations without a Justice presiding . . . , and it is not satisfied during less formal stages of litigation, such as a pretrial conference” … . Guzman-Martinez v Rosado, 2025 NY Slip Op 01483, Fourth Dept 3-14-25

Practice Point: Consult this decision for the criteria for an enforceable stipulation of settlement, i.e., a transcript or other evidence of the terms of any oral agreement, the filing of the terms of the agreement with the county clerk, and the entering of the agreement in open court with a judge presiding.

 

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THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​

The Fourth Department, affirming County Court, over a dissent, determined the officer’s testimony he could not see the driver’s face from a distance of 10 to 15 feet demonstrated probable cause of a “tinted window” violation which supported the vehicle stop. The dissent argued the officer’s testimony was insufficient to demonstrate probable cause because it was dark at the time of the stop and the officer did not link his inability to see inside the car to the tinted windows, as opposed to the ambient darkness:

Here, the officer who initiated the stop testified at the suppression hearing that he looked directly at the driver’s side window of the vehicle defendant was operating, that he did so from a distance of no more than 10 to 15 feet, and that he was “unable to see the driver of the vehicle” through the window. We conclude that the officer’s testimony contained sufficient facts to establish that he reasonably believed that the windows were excessively tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b) (2) … .

From the dissent:

The officer who attempted to initiate the stop of defendant’s vehicle testified that he believed any level of tint on the front driver’s side window or the front passenger window would be illegal and that the actual tint on the vehicle’s windows was never tested with a tint meter. He further testified that he initially observed the vehicle when it was dark outside and that he was unable to see the driver inside the vehicle. At no point did the officer testify that it was the window tint, as opposed to the ambient darkness, that prevented him from seeing the driver. The officer’s failure to link the allegedly excessive tint with his inability to see into the vehicle distinguishes this case from those cited by the majority, in which the arresting officer “testified at the suppression hearing that he could tell the window tints were too dark because he could not see into the [vehicle]” … or “specifically testified that the driver’s side windows were ‘so dark that [he] was unable to actually see the operator of the vehicle as the vehicle was going by’ ” … . Because the officer’s testimony here failed to link his conclusory belief that the windows were excessively tinted with an objective fact in support of that belief, I conclude that the People failed to meet their burden … . People v Hall, 2025 NY Slip Op 01457, Fourth Dept 3-14-25

Practice Point: Consult this decision for some insight into the proof required for a valid “tinted-windows-violation” traffic stop.

 

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DEFENDANT’S MOTION TO VACATE THE 1994 ATTEMPTED MURDER CONVICTION ON “ACTUAL INNOCENCE” GROUNDS SHOULD NOT HAVE BEEN SUMMARILY DENIED; DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING, I.E., EVIDENCE A DECEASED COOPERATING WITNESS HAD CONFESSED TO BEING THE SHOOTER (FIRST DEPT).

The First Department determined the evidence of “actual innocence” submitted in defendant’s motion to vacate the 1994 attempted murder conviction warranted a hearing:

The court … should have ordered a hearing on defendant’s actual innocence claim … . Defendant presented evidence, supported by the statements of the Assistant United States Attorneys who handled the cooperator, that, in 1998, after defendant’s trial, the cooperator credibly exonerated defendant by admitting to the shooting. Although the cooperator has died, his confession would be admissible as a statement against penal interest … . Accordingly, the court lacked grounds for a summary denial under CPL 440.30(4)(b). People v Davila, 2025 NY Slip Op 01300, First Dept 3-6-25

Practice Point: If a motion to vacate a conviction is supported by credible evidence of “actual innocence,” a hearing is necessary before ruling on the motion.​

 

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THE ONLY EVIDENCE OF DEFENDANT’S PARTICIPATION IN THE SHOOTING WAS DNA ON A HANDGUN; THE EVIDENCE OF MURDER AND POSSESSION OF A WEAPON WAS LEGALLY INSUFFICIENT; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s murder conviction and dismissing the indictment, determined the circumstantial evidence was legally insufficient and the verdict was against the weight of the evidence. The only evidence against the defendant was DNA on a handgun. No evidence placed defendant at the scene of the shooting or in the vehicle apparently used by persons (Jenkins and Brown) involved in the shooting:

… [T]here no evidence from which to infer that defendant had the intent to commit, or aid Jenkins or Brown in furtherance of, the shooting. The People’s case depends almost entirely upon the DNA evidence, from which the People infer that defendant racked the Glock used to kill Ms. Jacobs. The DNA evidence, however, is highly equivocal and does not reasonably permit such an inference. … Critically, the OCME [Office of the Chief Medical Examiner] criminalist Hardy testified that it was impossible to determine when each contributor left DNA on the gun; how defendant’s DNA was transferred to the gun; or, more importantly, whether defendant even touched the gun. Without additional evidence that defendant possessed the gun during or took any actions to aid Jenkins or Brown in the shooting, any conclusion that defendant possessed the gun or committed or aided in the shooting is based entirely on conjecture.

There is no such corroborating evidence. This case contains no physical, video, or testimonial proof regarding any act defendant took in furtherance of possessing the gun or shooting Ms. Jacobs. Even assuming arguendo defendant’s presence with Jenkins and Brown nearly two hours before the shooting, such does not lead to a permissible inference that he shot Ms. Jacobs or possessed the gun in furtherance of the crime that evening. * * *

Further, there is no legally sufficient evidence proving that defendant was present at the crime scene. Again, assuming that defendant was with Jenkins and Brown hours prior to the shooting does not permit any reasonable inference that he was with them at the crime scene. There is no evidence that defendant ever entered the Nissan. Nor was there evidence that he was present in the Nissan at the time of the chase. While police recovered from the Nissan fingerprints of Jenkins, Brown, and that of a third unidentified back seat passenger, they did not recover defendant’s prints. Additionally, the liquor bottles with which the People attempt to tie defendant to the car do not match those defendant purchased at the liquor store, and the bottles were never tested for defendant’s fingerprints or DNA. People v Coke, 2025 NY Slip Op 01297, First Dept 3-6-25

Practice Point: Consult this opinion for discussions of convictions based entirely on circumstantial evidence. the criteria for finding evidence legally insufficient. and the criteria for finding a verdict is against the weight of the evidence.

 

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THERE WERE QUESTIONS OF FACT OF WHETHER THE FOUR-YEAR-OLD PLAINTIFF UNDERSTOOD AND ASSUMED THE RISKS OF PARTICIPATING IN A YOUTH HOCKEY CLINIC; THE COACH, WHILE SKATING BACKWARDS, FELL ON THE CHILD; DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant town (Oyster Bay), which offered a youth hockey clinic, was not entitled to summary judgment on the ground the four-year-old plaintiff assumed the risk of injury. Defendant coach (Marlow) was skating backwards when he fell on the four-year-old plaintiff:

The [assumption of the risk] “doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . Risks that are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks tha participants have accepted and are encompassed by the assumption of risk doctrine … . “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . Awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff … .

Given the evidence submitted in support of the Town defendants’ cross-motion, including the infant plaintiff’s age and scant information concerning the infant plaintiff’s skill and experience level with ice hockey, there were triable issues of fact as to whether the infant plaintiff fully appreciated the risks involved in terms of the activity he was engaged in so as to find he assumed the risk of his injuries under the facts of this case … . H.B. v Town of Oyster Bay, 2025 NY Slip Op 01203, Second Dept 3-5-25

Practice Point: Sometimes the application of a legal doctrine seems absurd. Can a four-year-old participant in a hockey clinic appreciate the risk of being injured by a coach who skates backwards and falls on him?

 

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OBSERVING THE DEFENDANT CARRYING CAPPED BOTTLES OF ALCOHOL AND HAVING A HEAVY OBJECT IN A JACKET POCKET WAS NOT SUFFICIENT TO JUSTIFY DETAINING DEFENDANT; DEFENDANT’S FLIGHT WHEN AN OFFICER SAID “COME OVER HERE” IS OF NO CONSEQUENCE; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, reversing Supreme Court, determined defendant’s motion to suppress the handgun seized in a street stop should have been suppressed. Two police officers in a vehicle observed the defendant crossing the street. The defendant was carrying haff-full bottles of alcohol, but the bottles were not open. When one of the officers got out of the police vehicle and shone a flashlight on the defendant he noticed there appeared to be a heavy object in the defendant’s jacket pocket. The officer told the defendant to “come over here.” The defendant ran, was tackled, and the handgun was seized:

Transporting closed bottles is a legal activity which, without more, does not give rise to a presumption of intent to consume, or a founded suspicion of criminal activity under DeBour. Moreover, the fact that it was raining makes it less likely that the defendant intended to congregate outside and remain exposed to the elements while consuming alcohol. Critically, the officers never saw defendant drink from any of the bottles. Therefore, these facts did not give rise to a presumption that defendant intended to consume alcohol in public in violation of the statute, and Officer Delia, at most, acquired the right to approach defendant to request information.

The heavy-weighted object in defendant’s right jacket pocket could not have justified defendant’s stop and detention because, “absent other circumstances evoking suspicion, indicative of or referable to the possession of a handgun, the observation of a mere bulge or heavy object in a pocket does not imply a reasonable conclusion that the person is armed” … . “A police officer must show that the object or appearance thereof which is the focus of his attention resembled a gun” … . Thus, absent a showing of anything other than a mere bulge or heavy object in defendant’s pocket, Officer Delia could not have acquired a level of suspicion sufficient to detain the defendant … . People v Walker, 2025 NY Slip Op 01194, First Dept 3-4-25

Practice Point: If what the police observe is not enough to justify a street stop, the defendant’s flight when the police approach is irrelevant.​

 

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ABSENT AMBIGUITY A COURT CAN NOT CONSIDER EXTRINSIC EVIDENCE TO INTERPRET A CONTRACT; HERE PLAINTIFF HAD BROUGHT TWO ACTIONS AGAINST THE CITY CHALLENGING TWO SEPARATE ARRESTS; THERE WAS NO INDICATION THE RELEASE ONLY APPLIED TO THE ACTION DESCRIBED IN THE CAPTION OF THE RELEASE; THE SPACE FOR DESCRIBING ANY ACTION TO BE EXCLUDED FROM THE RELEASE WAS LEFT BLANK; THEREFORE THE RELEASE APPLIED TO BOTH ACTIONS; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined the release signed by plaintiff applied to both actions plaintiff had brought against the city, not just the action identified in the caption of the release. Plaintiff brought two separate actions challenging two arrests occurring 14 days apart. The release identified the action stemming from the second arrest and left a blank space to describe anything to be excluded from the release. That space was left blank. Supreme Court and the dissent determined that the plaintiff intended to exclude the first action from the release but plaintiff’s attorney inadvertently left the space for the exclusion blank:

Like any contract, a release must be “read as a whole to determine its purpose and intent,” and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous … . “A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” … . “More to the point, an ambiguity never arises out of what is not written at all, but only out of what was written so blindly and imperfectly that its meaning is doubtful” … .

Here, there was nothing surreptitious about the City sensibly filling in plaintiff’s name as the releasor, the case name and the index number referrable to Action 2, in the general release to identify the specific matter being settled. What followed are standard, boiler-plate operative terms of this general release, namely, a broadly worded waiver provision and a claim exclusion clause, both of which are clear and unambiguous. Thus, there was no legal basis for the motion court to use any extrinsic evidence, discern an unfounded ambiguity therefrom and ultimately surmise the parties’ intent to limit the scope of the general release to Action 2 … . Smith v City of New York, 2025 NY Slip Op 01198, First Dept 3-4-25

Practice Point: Here Supreme Court considered extrinsic evidence indicating that the release was meant to apply to only one of two actions plaintiff brought against the city. The First Department held that, because the release was not ambiguous, the court cannot consider extrinsic evidence. Therefore the release, by its terms, applied to both actions.

 

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