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IF THE TRIAL EVIDENCE VARIES FROM THE THEORY OF THE INDICTMENT, THE RELATED CONVICTIONS WILL BE VACATED (FIRST DEPT).

The First Department, vacating defendant’s convictions on some counts, determined the trial evidence varied from the theory of the indictment. The facts were not explained:

This Court agrees with the parties that defendant’s conviction under count 2 of the indictment charging grand larceny in the fourth degree, as well as criminal acts 1 and 6 alleged in count 1 of the indictment charging enterprise corruption, must be reversed because the trial evidence, which included evidence suggesting that defendant threatened physical damage to construction sites through vandalism, varied from the theory of the indictment (see People v Grega, 72 NY2d 489, 496-498 [1988]). People v Correll, 2025 NY Slip Op 00796, First Dept 2-11-25

Practice Point: If the trial evidence does not comport with the theory of the indictment, the related counts will be vacated.​

 

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THE BULLET CASINGS IN EVIDENCE COULD HAVE COME FROM A PISTOL OR A RIFLE; DEFENDANT WAS CHARGED WITH ILLEGAL POSSESSION OF A PISTOL AND THE JURY WAS SO INSTRUCTED; BECAUSE THERE WAS NO BASIS FOR THE JURY TO CONCLUDE DEFENDANT POSSESSED A PISTOL, AS OPPOSED TO A RIFLE, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove defendant possessed a “pistol” as opposed to a “rifle” at the time of the shooting. There was video evidence showing a muzzle flash from the area in the car where defendant was sitting, but the weapon could not be seen. Because the indictment and the jury instructions charged defendant with possession of a “pistol,” the conviction could not stand:

… [T]he indictment and the jury charge specifically narrowed the theory of the case to require the People to establish that defendant possessed a loaded pistol at the time in question. Here, the evidence permitted, at best, mere speculation that the firearm defendant allegedly possessed was a pistol, and not a rifle. Video footage of the shooting shows multiple muzzle flashes indicative of gunfire from the vehicle—it does not directly depict the firearm that is firing the shots. Moreover, the angle of the video does not permit an observer to make any reasonable inferences about what type of firearm is being fired at the relevant time. Nothing in the video establishes that the firearm being fired was a pistol rather than another type of firearm. People v Brumfield, 2025 NY Slip Op 00764, Fourth Dept 2-7-25

Practice Point: The People are held to the theory presented in the indictment and charged to the jury. Since the indictment charged defendant with illegal possession of a pistol and the jury was so charged, the People’s failure to prove the type of firearm defendant possessed required reversal of the conviction.

 

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ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the custody order should have been granted. Despite father’s failure to appear in this custody proceeding, Family Court should have held a hearing and made findings of fact in support of awarding custody to mother:

“Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … . In addition, the court’s authority to proceed by default “in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … .

Here, the Family Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Matter of Riera v Ayabaca, 2025 NY Slip Op 00661, Second Dept 2-5-25

Practice Point: Although Family Court can proceed by default in a custody matter, a hearing and findings of fact are necessary.

 

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IT WAS ALLEGED A TEACHER SEXUALLY ABUSED PLAINTIFF STUDENT ONCE OR TWICE A WEEK FOR THREE YEARS ON SCHOOL GROUNDS, SOMETIMES FOLLOWED BY ABUSE OFF SCHOOL GROUNDS; THE NEGLIGENT SUPERVISION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this Child Victims Act case should not have been granted. It was alleged plaintiff-student was sexually abused by a teacher once or twice a week for three years. Based on the frequency of the alleged abuse, the school did not demonstrate it did not have constructive notice of the abuse and properly supervised the teacher. Because abuse which allegedly occurred off the school premises was preceded by abuse on school grounds, the off-premises-abuse causes of action should not have been dismissed:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred once or twice per week over the course of three school years in the same closet while the teacher left the other students in his class unattended, the defendants failed to eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher was negligent … .

Further, although the plaintiff alleged acts of sexual abuse that occurred outside of school premises and school hours, the defendants’ submissions showed that those alleged acts were preceded by instances when the plaintiff allegedly was sexually abused by the teacher during school hours on a regular basis. Sallustio v Southern Westchester Bd. of Coop. Educ. Servs., 2025 NY Slip Op 00690, Second Dept 2-5-25

Practice Point: Consult this decision for a concise summary of the elements of the causes of action where a teacher is accused of frequently sexually abusing a student both on and off school grounds.

 

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THE WARRANT REQUIRED THE SEIZED CELL PHONE BE “RETURNED TO THE COURT;” INSTEAD THE CELL PHONE WAS TURNED OVER TO A CYBERSECURITY CENTER WHICH CONDUCTED A FORENSIC EXAMINATION AND MEMORY EXTRACTION; DEFENSE COUNSEL’S FAILURE TO MOVE TO SUPPRESS THE INFORMATION GLEANED FROM THE CELL PHONE CONSTITUTED INEFFECTIVE ASSISTANCE; MANSLAUGHTER CONVICTION VACATED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate her manslaughter conviction on the ground of ineffective assistance of counsel should have been granted. The search of defendant’s cell phone far exceeded the scope of the warrant. The warrant required that the seized cell phone be “returned to the court.” Instead the phone was turned over to a cybersecurity and forensics center where a forensic examination and memory extraction was conducted. A considerable amount of trial evidence was gleaned from the cell phone. Defense counsel did not move to suppress the cell-phone evidence:

We agree with defendant that she was denied effective assistance of counsel inasmuch as defense counsel failed to properly move to suppress the evidence obtained from her cell phone. “[I]ndiscriminate searches pursuant to general warrants ‘were the immediate evils that motivated the framing and adoption of the Fourth Amendment’ ” … . A person’s cell phone now contains at least as much personal and private information as their home and, thus, indiscriminate searches of cell phones cannot be permitted … . As defendant correctly contends, the forensic examination and memory extraction of her cell phone’s contents exceeded the scope of the warrant, which only authorized OCSO to seize the cell phone and return it to the court … . Furthermore, the warrant failed to meet the particularity requirement inasmuch as it, inter alia, did not “specify the items to be seized by their relation to designated crimes” … . Thus, we conclude that defendant “established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence” … . People v Conley, 2025 NY Slip Op 00597, Fourth Dept 1-31-25

Practice Point: The Fourth Department noted that the search of a cell phone can reveal as much information as the search of a home. To be valid, a cell -phone search must be confined to the terms of the warrant, and the warrant must specify the items to be seized by their relation to the crimes.

 

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THE FACT THAT PLAINTIFF SLIPPED AND FELL ON “BLACK ICE” DOES NOT SUPPORT THE CONCLUSION THE ICE WAS NOT VISIBLE; THIS SLIP AND FALL COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the “black ice” in the parking lot was visible such that defendant had constructive notice of its presence:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . In moving for summary judgment, defendants argued, and the court agreed, that they did not have constructive notice inasmuch as plaintiff slipped on black ice and thus the icy condition was not visible and apparent. Although plaintiff allegedly slipped on black ice, “that fact alone does not establish as a matter of law that the ice was not visible and apparent” … . Moreover, the fact that plaintiff did not see the ice before she fell is not dispositive of whether the condition was visible and apparent … . Here, defendants submitted excerpts from plaintiff’s deposition where she described the ice, as she observed it after she fell, as “[a] wide circle” and “a big patch” that “was the same color as the ground” and not shiny. We conclude that defendants failed to meet their initial burden of establishing as a matter of law that the icy condition was not visible and apparent … . Doyle v Tops Mkts., LLC, 2025 NY Slip Op 00577, Fourth Dept 1-31-25

Practice Point: Black ice is not invisible as a matter of law.​

 

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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