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ALTHOUGH THE JUDGE DID NOT COMMIT TO CONCURRENT SENTENCES, THE PLEA AGREEMENT CONTEMPLATED CONCURRENT SENTENCES AND THE JUDGE’S STATEMENTS CREATED CONFUSION ON THE ISSUE; IN THE INTEREST OF JUSTICE, AND TAKING INTO ACCOUNT THE CONTENTS OF THE PRESENTENCE REPORT, THE CONSECUTIVE SENTENCES WERE VACATED AND CONCURRENT SENTENCES WERE IMPOSED (THIRD DEPT).

The Third Department, directing that defendant’s sentences be served concurrently, not consecutively, determined that the plea agreement contemplated the imposition of concurrent sentences and the judge’s confusing and ambiguous language in the plea colloquy warranted modification of the sentence:

We recognize that the imposition of consecutive sentences was authorized under Penal Law § 70.25 (2) … , and that County Court did not make any express sentencing commitment to defendant. However, the plea agreement contemplated the imposition of concurrent sentences, County Court stated during the plea proceedings that the maximum term of imprisonment defendant faced on a class C violent felony was 15 years, and the court used confusing and ambiguous language during the plea colloquy regarding the possibility of consecutive sentencing … . In light of the confusion, defendant seeks vacatur of his plea or modification of the sentence to reflect a concurrent sentence. On this record, and after accounting for the circumstances set forth in the PSR, we find that the imposition of concurrent sentences is appropriate and modify the judgment accordingly … . People v Bonville, 2026 NY Slip Op 00039, Third Dept 1-8-25

Practice Point: Here it is possible the defendant entered the plea agreement with the understanding that the sentences would run concurrently. Although the judge did not commit to concurrent sentences, the judge’s statements on the issue were confusing and ambiguous. The Third Department, in the interest of justice, after reviewing the presentence report, imposed concurrent sentences.

 

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THE UNDERLYING OFFENSE AND DEFENDANT’S LIMITED HISTORY OF ALCOHOL ABUSE DID NOT WARRANT A PROBATION CONDITION REQUIRING CONSENT TO SEARCHES FOR WEAPONS, DRUGS AND OTHER CONTRABAND (FIRST DEPT).

The First Department struck the probation condition requiring defendant’s consent to searches for weapons, drugs and other contraband:

The court improperly imposed, as a condition of defendant’s probation, a requirement that he consent to a search by his probation officer of his person, vehicle, or home for weapons, drugs, drug paraphernalia, and other contraband. Defendant was not armed with a weapon during the underlying offense and had no history of violence or use of weapons … . Defendant did not have a history of abusing illicit substances and was not assessed as being in need of drug abuse treatment … . Although defendant admitted to a limited history of alcohol abuse, before and at the time of the instant offense, the consent-search condition, as written, “is not limited to conform” to the “certain limited circumstances where alcohol becomes contraband for the purposes of” that condition … . People v Aquirre, 2026 NY Slip Op 00025, First Dept 1-6-25

Practice Point: The First Department struck a probation condition requiring consent to searches for weapons, drugs and other contraband, which was not justified by the underlying offense or defendant’s limited history of alcohol abuse.

 

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DEFENDANT DID NOT OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION ON AN EVIDENTIARY GROUND NOT RAISED BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge in this foreclosure action should not have denied plaintiff’s motion for summary judgment on an evidentiary ground which was not raised by the defendant:

Plaintiff … moved for summary judgment, submitting an affirmation by counsel, to which the loan documents were annexed, and an affidavit from the same first vice president, which did not attach the subject loan documents. The affiant attested that defendant failed to make monthly payments and that defendant owed plaintiff $2,302,848.55 through June 15, 2024. He did not attest that he based his knowledge of the default and amount due on his review of any records. Defendant did not oppose plaintiff’s motion.

… Although it is the movant’s burden to establish its entitlement to summary judgment and the failure of the nonmovant to oppose summary judgment does not obviate the movant’s need to establish its prima facie case … , “a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion” … . This is because courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” … .

On its original motion, plaintiff established its prima facie entitlement to summary judgment by establishing, through the affidavit of a first vice president who was also the loan officer in charge of the loan’s collection and enforcement, the existence of the consolidated note, consolidated mortgage, and the existence and amount of defendant’s default … . Defendant did not oppose the motion and thus did not raise any objections as to the admissibility of plaintiff’s evidence, and the court should not have raised evidentiary objections sua sponte … . Valley Natl. Bank v Community Prot. Church of Co-op City, Inc., 2026 NY Slip Op 00036, First Dept 1-6-25

Practice Point: A judge should not, sua sponte, deny a motion for summary judgment on a ground not raised by the nonmoving party.

 

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THE PROBATION CONDITION PROHIBITING ASSOCIATION WITH GANGS WAS STRICKEN BECAUSE THE CONDITION WAS NOT RELEVANT TO THE UNDERLYING OFFENSE OR DEFENDANT’S REHABILITATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND A LACK OF PRESERVATION (FIRST DEPT).

The First Department, striking a probation condition, determined the condition prohibiting defendant’s association with gangs was not related to defendant’s rehabilitation: The First Department noted that the issue survives a waiver of appeal and a lack of preservation:

Defendant’s appeal waiver does not foreclose her challenges to the legality of the conditions of her probation under Penal Law § 65.10(1) and do not require preservation … . …

… [T]he probation condition requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang if directed by the Department of Probation” must be stricken because there is no evidence that defendant’s actions were connected to gang activity or that she had a history of gang membership, rendering this condition neither reasonably related to her rehabilitation nor necessary to ensure that she leads a law-abiding life ( … Penal Law § 65.10[1]). People v Johnson, 2026 NY Slip Op 00029, First Dept 1-6-25

Practice Point: The appellate courts are striking probation conditions not shown to be relevant to the underlying offense or criminal history.

Same issue and result in People v Seymore, 2026 NY Slip Op 00028, First Dept 1-6-25

 

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THE JUDGE’S RESTRICTIONS ON THE TESTIMONY OF THE DEFENSE “FALSE CONFESSION” EXPERT, AND THE DENIAL OF DEFENDANT’S REQUEST FOR A “PROMISE BY POLICE” JURY INSTRUCTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the judge erroneously restricted the defense false-confession-expert’s testimony and erroneously denied defendant’s request for a “Promise by Police” jury instruction (defendant testified the police made promises to him during the 12-hour interrogation):​

… [T]he court limited the scope of the defendant’s expert’s testimony by precluding the mention of a study by the Innocence Project, which found that of the more than 300 people who had been, at the time, exonerated by DNA, approximately 25% of those people had confessed, and a study conducted at the University of Michigan Law School, where researchers found that of the 1,405 exonerations that took place between 1989 and 2012, 10% of the people had falsely confessed, and people with mental illness or intellectual disability were overrepresented in those who had done so. Here, the court improperly concluded that those studies were not relevant … .

…[T]he studies were relevant to illustrate the risk of false confessions, and specifically, a study related to mental disability is proper in this case where the defendant was found to have an IQ lower then 93% of individuals in his age group. … [T]he court limited the scope of the expert’s testimony as to existing research on false confessions … . The court further compounded this error by denying admission of a portion of the defendant’s expert’s curriculum vitae, ruling, without basis, that the titles of certain articles listed therein would be inappropriate for a jury to see, thereby depriving the jury of information relevant to the credibility and weight of the expert’s testimony … . Moreover, these errors allowed the People’s expert to testify that research in the area of false confessions is scant and that the study of false confessions and the evaluation of psychological vulnerabilities was a “primitive subdiscipline.” … [T]he court also scheduled the trial on a date that the defendant’s expert was not available. Although the use of video recorded testimony is not error, “[l]ive televised testimony is certainly not the equivalent of in-person testimony” … . As such, the jury was able to observe the in-court testimony of the People’s expert, but was only able to observe the defendant’s expert on a television screen, and even that testimony was edited to exclude the aforementioned studies. People v Grigoroff, 2025 NY Slip Op 07400, Second Dept 12-31-25

​Practice Point: Consult this decision for insight into how restrictions placed on an expert’s testimony can create the impression there is little or no support for the expert’s conclusions in the relevant literature. Here, because the defense expert was not allowed to discuss the studies upon which his “false confession” conclusions were based, the People’s expert was able to tell the jury “false confession” research is “scant” and is a “primitive subdiscipline.” In addition, the trial was scheduled when the People’s expert could attend, but the defense expert could not, forcing the defense expert to submit videotaped testimony.

 

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WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

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THE PEOPLE AGREED DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WARRANTED A SUPPRESSION HEARING BUT ARGUED THE ISSUE WAS NOT PRESERVED BECAUSE THE ORDER DENYING A SUPPRESSION HEARING INCLUDED THE PHRASE “WITH LEAVE TO RENEW UPON A SHOWING OF SUFFICIENT FACTUAL ALLEGATIONS” RENDERING THE ORDER NONFINAL AND UNAPPEALABLE; THE FIRST DEPARTMENT NOTED THAT NO OTHER EVIDENCE CAME TO LIGHT WHICH COULD HAVE SUPPORTED A RENEWAL MOTION; THE ORDER WAS THEREFORE DEEMED FINAL AND APPEALABLE (FIRST DEPT).

The First Department, holding defendant’s plea and sentencing in abeyance, remitted the matter for a Mapp/Dunaway hearing to determine whether the seizure of a gun dropped by the defendant was facilitated by unlawful police conduct. In the omnibus motions defendant argued that he dropped the gun as a spontaneous response to the police officers’ approaching and then chasing him without reasonable suspicion. On appeal, the People agreed defendant was entitled to a hearing. The contested issue on appeal was whether the order denying the suppression motion “with leave to renew upon a showing of sufficient factual allegations” rendered the order nonfinal and therefore unappealable. The First Department determined the order was final:

The issue in contention on this appeal is whether the court’s summary denial of defendant’s suppression motion — which ended with the statement that the motion “is denied, with leave to renew upon a showing of sufficient factual allegations” — qualifies as an “order finally denying a motion to suppress evidence” which would preserve the suppression issue for appeal under CPL 710.70(2). While phrases like “leave to renew” or “leave to submit” may be some indicia of a lack of finality under CPL 710.70(2), they do not, standing alone, render a court’s ruling nonfinal. * * *

… [T]he court incorrectly rejected the defendant’s detailed recitation of his suppression theory and there was no further evidence produced by the People that could bolster defendant’s theory on renewal.

Accordingly, we remit to Supreme Court to hold a Mapp/Dunaway hearing. People v Diaby, 2025 NY Slip Op 07343, First Dept 12-30-25

Practice Point: Here the People argued that the order denying a suppression hearing was nonfinal and therefore unappealable because it included the phrase “with leave to renew upon a showing of sufficient factual allegations.” The First Department noted that this was not a case where additional evidence came to light which would have supported renewal and the defendant failed to make a renewal motion. Here no new evidence came to light. The denial of the suppression motion was therefore deemed a final, appealable order.

 

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EVERY STATEMENT DEFENDANT MADE AFTER HE TOLD THE OFFICERS “I AIN’T GOT NOTHING TO TALK ABOUT” SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant had unequivocally asserted his right to remain silent and all statements defendant made thereafter should have been suppressed:

After defendant indicated that he understood [the Miranda] rights, the officer asked whether defendant would agree to waive them and speak to the officer. Defendant did not respond in the affirmative. Instead, he said, “I ain’t got nothing to talk about. I just want to go to jail. I want to go to sleep.” * * *

… [D]efendant said in no uncertain terms that he did not want to talk to the officer and instead wanted to be taken to jail … , and “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . The officer nevertheless continued to ask defendant questions that were “reasonably likely to elicit an incriminating response” … . Under the circumstances, we conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is “unsupported by the record” … . People v Williams, 2025 NY Slip Op 07158, Fourth Dept 12-23-25

Practice Point: If a defendant tells the police “I ain’t got nothing to talk about” and the police continue questioning him, that is a Miranda violation requiring suppression.

 

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SUPREME COURT WENT BEYOND THE PARAMETERS OF THE REMITTAL BY ACCEPTING SUPPLEMENTAL ARGUMENTS ON NEW CASE LAW AND BY RENDERING A DECISION ON GROUNDS NOT INCLUDED IN THE REMITTAL; DISMISSAL OF THE COMPLAINT REVERSED, DEFAMATION CAUSES OF ACTION REINSTATED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court went beyond the parameters of the remittal. Supreme Court had dismissed the complaint. The Fourth Department reinstated several defamation causes of action:

We agree with plaintiff that the court impermissibly expanded the scope of the remittal. “[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith” … . This Court expressed our remittal directive in our order, and Supreme Court impermissibly expanded the scope of that remittal by accepting supplemental arguments on, inter alia, the effect of new case law relating to the retroactivity of the amended anti-SLAPP statute, and by basing its decision on grounds that were not included within the remittal .. . Trinh v Nguyen, 2025 NY Slip Op 07136, Fourth Dept 12-23-25

Practice Point: Here Supreme Court did not follow the mandate of the remittal by accepting new legal arguments and deciding the case on grounds not included in the remittal. Supreme Court’s dismissal of the complaint was reversed.

 

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DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, over a dissent, determined defendant’s guilty plea was knowing, intelligent and voluntary, the dissent disagreed:

[D]espite the court’s initial inclination to end the plea proceeding and allow the matter to proceed to trial and its indication that it could not accept a plea that was not voluntary, the court continued with the plea proceeding after defendant emphatically insisted that the plea “is voluntary . . . is voluntary . . . is voluntary” and that the court was not pressuring him. Defendant was given another opportunity to consult with defense counsel and then indicated that he wanted to proceed with the plea, and the court thereafter asked again whether defendant, with intent to cause serious physical injury, did in fact cause such injury to the victim by repeatedly stabbing her, to which defendant answered in the affirmative. The court then followed up one more time by asking defendant whether he was telling the truth when he answered that prior question, to which defendant again responded in the affirmative. Therefore, contrary to the dissent’s suggestion that the law required more of the court, the record reflects that the court “properly conducted such [a further] inquiry and that defendant’s responses to the court’s subsequent questions removed [any] doubt about [his] guilt” with respect to the previously negated elements of assault in the first degree … . …

n any event, we conclude that defendant’s challenge to the voluntariness of the plea lacks merit. Indeed, defendant’s contention that the court coerced him into accepting the plea is belied by the record because, during the plea colloquy, defendant denied that he had been threatened or otherwise pressured into pleading guilty and, moreover, defendant specifically denied that the court had pressured him into taking a plea … . Further, contrary to defendant’s assertion, “[a]lthough it is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if [the defendant] decides to proceed to trial,’ ” we conclude that the statements made by the court ” ‘amount to a description of the range of the potential sentences’ rather than impermissible coercion” … . The fact that defendant ” ‘may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ ” … . Likewise, contrary to defendant’s assertion, we conclude on this record that the court “did not coerce defendant into pleading guilty merely . . . by commenting on the strength of the People’s evidence against him” … . Contrary to defendant’s related assertion, we conclude that “defense counsel’s advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial . . . does not constitute coercion” … . People v Freeman, 2025 NY Slip Op 07125, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into what does and does not amount to “coercion” in the context of a guilty plea.

 

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