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AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the traffic stop was proper (inoperable brake light) but the search of defendant’s person, based on the odor of marijuana, was not:

… [T]he officer’s testimony was insufficient to establish that there was probable cause for the search of the defendant’s person. As the law existed in 2020, “the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was alone] sufficient to constitute probable cause to search the vehicle and its occupants” … . Here, however, the officer did not testify that he had any training or experience in detecting the odor of marihuana … .

Accordingly, the Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress physical evidence. People v McLeod, 2025 NY Slip Op 01108, Second Dept 2-26-25

Practice Point: Under the law as it was in 2020, the search of a person could be justified by the odor of marijuana, but only if the officer was qualified by training and experience to recognize the odor of marijuana. Here the officer did not testify he was qualified to recognize the odor of marihuana. Therefore, defendant’s motion to suppress should have been granted.

 

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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S CONVICTIONS WERE REVERSED IN THE INTEREST OF JUSTICE; THE CREDIBILITY OF ONE OF THE VICTIMS WAS IMPROPERLY BOLSTERED IN OPINION TESTIMONY BY A POLICE OFFICER AND A PSYCHOLOGIST ASSERTING THAT THE VICTIM WAS BELIEVABLE AND RELIABLE; A PRIOR INCONSISTENT STATEMENT BY ONE OF THE VICTIMS, IN WHICH THE VICTIM DENIED DEFENDANT HAD EVER MOLESTED THE VICTIM, SHOULD HAVE BEEN ADMITTED (THIRD DEPT).

The Third Department, in the interest of justice, reversed the “predatory sexual assault against a child” convictions which involved two victims, and ordered a severance if a new trial is held. The Third Department determined the credibility of one of the victims was improperly bolstered by the testimony by a police officer and a psychologist that they found the victim’s version of events believable and reliable. In addition, the Third Department held that a prior inconsistent statement by one of the victims, denying that defendant ever molested the victim, should have been admitted in evidence:

… [W]e find merit in defendant’s contention that he was deprived of a fair trial based upon the testimonies of Breslin [a police officer] and Spagli [a psychologist], who each offered their opinion as to victim 2’s credibility. Accordingly, notwithstanding defendant’s failure to properly preserve his claim, we exercise our discretion and reverse in the interest of justice (see CPL 470.15 [6] [a] …). “It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not” … . As such, “to bolster the testimony of another witness . . . by explaining that his [or her] version of the events is more believable than the defendant’s, the . . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned” … . Here, Breslin testified that he “felt . . . [victim 2] was telling the truth.” Spagli, in turn, agreed that the goal of reaching the truth “was done in this case” and further testified that she “felt [victim 2] was reliable throughout the course of the investigation.” Supreme Court did not provide a curative instruction.

We are similarly persuaded by defendant’s claim that he was improperly denied the opportunity to impeach victim 2 about an alleged prior inconsistent statement given in an unrelated Family Court matter, in which victim 2 reportedly denied ever having been molested by defendant. * * * The impeachment testimony sought here … concerned the ultimate issue before the jury. Accordingly, we conclude that it was error to preclude defendant from exercizing his right to confront victim 2 about their prior statement; the court could have crafted limitations to prevent the disclosure of unduly prejudicial information upon such questioning … . People v Swartz, 2025 NY Slip Op 01015, Third Dept 2-20-25

Practice Point: If trial errors are severe enough, as they were here, an appellate court has the power to overlook the failure to preserve the errors and reverse in the interest of justice.

 

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ANY DEVIATIONS FROM THE STATE POLICE INVENTORY-SEARCH POLICY WERE MINOR AND DID NOT WARRANT SUPPRESSION OF THE HANDGUN FOUND IN THE SEARCH; THERE WAS A TWO-JUSTICE DISSENT (THIRDD DEPT).

The Third Department, reversing County Court’s suppression of a handgun found in an inventory search, determined any deviations from the State Police’s inventory-search procedure were minor and did not warrant suppression of evidence seized during the search:

As for whether the trooper who conducted the search of the Kia sufficiently complied with that policy, County Court determined that the trooper did not because “there [were] a great many items and effects within the vehicle that are not memorialized within the inventory form” and because the form “was not filled out until some many hours — if not days — after the search was conducted.” * * *

The foregoing were “minor deviation[s] from procedure” under the circumstances of this case “and did not undermine the reasonableness of the limited search,” particularly because “there was no indication that the police were using the procedure as a pretext to search for incriminating evidence” to begin with … . It is not the role of either County Court or this Court to “micromanage the procedures used to search properly impounded” vehicles and, as the record leaves no question both that the towing]and inventory search of the Kia were justified and that the ensuing list of the vehicle’s contents sufficiently complied with State Police policy to meet the constitutional minimum, defendant’s motion to suppress should have been denied in its entirety … . People v Craddock, 2025 NY Slip Op 01016, Third Dept 2-20-25

Practice Point: Here the Third Department held that any deviations from the State Police inventory-search procedure were minor and did not warrant suppression. Two justices dissented.

 

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THE EVIDENCE WAS LEGALLY SUFFICIENT TO DEMONSTRATE DEFENDANT INTENDED TO STEAL TWO CANS OF RED BULL WHEN HE ENTERED THE CVS; THE DISSENT ARGUED THE EVIDENCE OF FELONY BURGLARY WAS LEGALLY INSUFFICIENT, NOTING THAT THE PROSECUTOR COULD HAVE CHARGED PETTY LARCENY OR TRESPASS, THEREBY SAVING THE STATE THE MILLION DOLLARS IT COST TO INCARCERATE THE HOMELESS, MENTALLY ILL AND DRUG-ADDICTED DEFENDANT FOR AN ATTEMPT TO STEAL ITEMS WORTH $6 (CT APP).

The Court of Appeals affirmed defendant’s burglary conviction rejecting the “legally insufficient evidence” argument. In a dissenting opinion, Judge Wilson (Judge Halligan concurring), argued the evidence was legally insufficient. Judge Wilson wrote “no evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls” when he entered the CVS:

From the dissent:

Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State … . For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me.

Mr. Williams’s story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment. * * *

Putting both psychiatric and fiscal wisdom aside, although it was within the discretion of prosecutors to charge Mr. Williams with felony burglary instead of, for example, petty larceny or trespass, the trial evidence was legally insufficient to convict him of burglary. No evidence in the case could have led a jury to conclude beyond a reasonable doubt that Mr. Williams intended to steal the two Red Bulls. I would therefore reverse his conviction. People v Williams, 2025 NY Slip Op 00901, CtApp 2-18-25

Practice Point: Consult the dissent for a strong argument for prosecutorial discretion in shoplifting cases, especially where the defendant is homeless, mentally ill and addicted to drugs. Here the defendant was sentenced to three and a half to seven years in prison for attempting to steal two cans of Red Bull from a CVS (burglary third).

 

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HERE AN ALLEGED PRIOR INCONSISTENT STATEMENT BY THE ROBBERY VICTIM, OFFERED AT TRIAL SOLELY FOR IMPEACHMENT, DID NOT RENDER THE EVIDENCE LEGALLY INSUFFICIENT; THE VICTIM WAS THE SOLE WITNESS TO TESTIFY ABOUT THE FACTS (CT APP). ​

The Court of Appeals, affirming defendant’s conviction. over a three-judge concurring opinion, determined that an alleged prior inconsistent statement made by the robbery victim, the only fact witness, offered at trial solely for impeachment, did not render the evidence legally insufficient. Neither the memorandum decision nor the concurring opinion discusses the underlying facts:

The victim, who was the sole person to testify about the facts concerning defendant’s conviction of robbery in the third degree, gave a statement to police, through an interpreter, several hours after the alleged robbery that was inconsistent on a material element of the offense with his trial testimony. That statement was introduced through the officer’s testimony at trial, solely for the purpose of impeachment. When an alleged contradictory prior statement is admitted solely for the purpose of impeachment, the rule of People v Ledwon (153 NY 10 [1897]) and People v Jackson (65 NY2d 265 [1985]) is not implicated. The evidence was legally sufficient to support the inference that defendant intended to steal property forcibly … . People v Howard, 2025 NY Slip Op 00804, CtApp 2-13-25

Practice Point: Here a prior inconsistent statement by the robbery victim, the only fact witness at trial, did not render the evidence legally insufficient.

 

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IMPROPER CROSS-EXAMINATION OF PLAINTIFF ABOUT HIS STATUS AS A DEFENDANT IN A PENDING LAWSUIT WARRANTED GRANTING PLAINTIFF’S MOTION FOR A MISTRIAL (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion for a mistrial, determined plaintiff was improperly cross-examined about his status as a defendant in a pending lawsuit:

… Supreme Court should have granted the plaintiff’s motion for a mistrial based upon improper cross-examination of the plaintiff about a pending lawsuit against him relating to his alleged failure to pay for an unrelated medical procedure. Where a lawsuit has not resulted in an adverse finding against a witness, counsel should not be permitted to ask the witness if he or she has been sued since the fact that a lawsuit has been commenced, in and of itself, has little or no probative value with regard to credibility … . Here, the court improvidently permitted defense counsel to cross-examine the plaintiff as to whether he was the defendant in a pending lawsuit alleging nonpayment, since the lawsuit had not resulted in an adverse finding against the plaintiff and the fact that the lawsuit had been commenced, in and of itself, had little to no probative value with regard to the plaintiff’s credibility … . Moreover, defense counsel’s reference to an allegation that the plaintiff had taken $200,000 in insurance proceeds that was not forwarded to medical providers and, after being precluded from ascertaining from the plaintiff whether that allegation was true, defense counsel’s reference to “someone” taking $250,000 that “didn’t belong to them,” prejudiced the plaintiff, who was the sole eyewitness on his behalf. Drayton v Putnam Hosp. Ctr., 2025 NY Slip Op 00845, Second Dept 2-13-25

Practice Point: The cross-examination of the plaintiff about his status as a defendant a pending lawsuit was improper and warranted a mistrial.

 

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DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A NONNEGLIGENT EXPLANATION FOR THE COLLISION; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this rear-end collision case should not have been granted. Defendant had raised a nonnegligent explanation for the collision:

In this action arising from a vehicle collision, plaintiff established prima facie entitlement to summary judgment as to liability. In his sworn affidavit, he averred that he was slowing down on the expressway due to upcoming traffic congestion when his vehicle was hit in the rear by a tractor trailer truck driven by defendant Scott Martin. “It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation” for the collision … .

However, defendants raised an issue of fact in opposition by submitting Martin’s affidavit stating that plaintiff pulled directly in front of him from the nearby on-ramp, during inclement weather, in a manner that Martin described as “sudden.” This statement in Martin’s affidavit presented a nonnegligent explanation for the collision, raising an issue of fact as to whether plaintiff was comparatively negligent for swerving in front of Martin or cutting him off … . Madera v Charles Hukrston Truck, Inc., 2025 NY Slip Op 00788, Frist Dept 2-11-25

Practice Point: Here is a rare example of a nonnegligent explanation for a rear-end collision which was deemed sufficient to defeat plaintiff’s motion for summary judgment.

 

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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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