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ALTHOUGH DEFENDANT WAS ARRESTED OUTSIDE THE HOME, HE WAS COERCED INTO TO LEAVING BY A SHOW OF FORCE BY THE POLICE; THEREFORE THE WARRANTLESS ARREST VIOLATED PAYTON; WHETHER THE TENANT’S SUBSEQUENT CONSENT TO SEARCH WAS VOLUNTARY WAS DECIDED BY THE APPELLATE DIVISION USING THE WRONG CRITERIA; MATTER REMITTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge dissent, determined (1) the Fourth Department properly held that the warrantless arrest of the defendant outside the home violated Payton (445 US 573) and (2) the Fourth Department used the wrong criteria when it ruled the tenant’s consent to search the premises after defendant’s arrest was voluntary. The case was remitted to the Fourth Department for a ruling on the validity of the consent to search applying the correct criteria:

… Fifteen members of the Monroe County SWAT team and additional uniformed officers arrived at the apartment in an armored vehicle called a BearCat. The SWAT team members wore body armor and camouflage tactical clothing and carried assault rifles. The defendant did not live in the apartment but had been there for approximately 18 hours and stayed overnight the prior evening. An officer admitted that the police chose not to obtain an arrest warrant for the defendant because they wanted to interview him before his right to counsel attached.

A police investigator testified that upon seeing the defendant through the apartment window, he shouted at him to “come on out, house is surrounded . . . come out empty handed and come out with your hands up.” The defendant … exited the building, at which point he was taken into custody. Officers then entered the apartment and ordered the tenant and her cousin to “come out with [their] hands up” and lie face down with “guns to [them].” The tenant testified that she was scared; she and her cousin were handcuffed; and the police separated them and put the tenant into the back of a police patrol car, where she could not see her cousin and remained for approximately five to seven minutes. An officer obtained the tenant’s consent to search. * * *

When officers subject someone to a display of authority that induces them to exit the home under coercion, the sanctity of the home has been invaded to the same extent as if the officers had physically entered. Such a show of force violates Payton and renders an arrest unlawful … . * * *

… [T]he Appellate Division applied an incorrect legal standard in considering the validity of the tenant’s consent. People v Gonzalez (39 NY2d 122, 128-130 [1976]) sets forth the factors that should be considered in determining whether the consent was voluntary. Those include “whether the consenter is in custody or under arrest”; “the circumstances surrounding the custody or arrest,” including whether the person was “confronted by a large number of police agents”; whether the person was handcuffed; “the background of the consenter,” including their age and prior experience with police; “whether the consenter has been . . . evasive or uncooperative with the law enforcement authorities”; and “whether [the person] was advised of [their] right to refuse to consent” … .  The Appellate Division instead recited and applied the factors set forth in People v Borges (69 NY2d 1031, 1033 [1987]), which go to whether voluntary consent was attenuated from an illegal arrest, not whether the consent itself was voluntary. People v Shaw, 2026 NY Slip Op 00961, CtApp 2-19-26

Practice Point: If a person is coerced by the police into leaving his home by a show of force, a warrantless arrest outside the home violates Payton and is illegal.

Practice Point: Consult this opinion for insight into when a consent to search obtained by the police can be considered voluntarily given.

 

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THE COURT OF APPEALS CANNOT REVIEW AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE RULING ABSENT THE APPELLATE DIVISION’S MANIFEST FAILURE TO CONSIDER THE ISSUE OR THE APPLICATION OF AN INCORRECT LEGAL STANDARD; NOT THE CASE HERE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined the record did not support the appellant’s argument that the Appellate Division failed to consider the weight-of-the-evidence or did so using an incorrect legal principle. Therefore the Court of Appeals could not review the weight of the evidence:

On appeal, the Appellate Division unanimously affirmed the judgment (220 AD3d 1223 [4th Dept 2023]). The Court held that the verdict was not against the weight of the evidence, stating that, “[a]lthough a different verdict would not have been unreasonable,” the jury did not “fail[ ] to give the evidence the weight it should be accorded” … . …

In Baque, we recently clarified the Appellate Division’s role in reviewing the weight of the evidence in a case involving purely circumstantial evidence. In a circumstantial evidence case, the jury must conclude that ” ‘the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence’ ” (Baque, 43 NY3d at 29 …). Observing that the Appellate Division’s function in conducting a weight review was to “independently assess all of the proof,” we explained that the Appellate Division, like the jury, must conclude that the evidence gives rise to such an inference … . We further reiterated in Baque that this Court has no power to review the Appellate Division’s decision regarding the weight of the evidence unless that Court ” ‘manifestly failed to consider the issue or did so using an incorrect legal principle’ ” … . * * *

Here, the Appellate Division expressly rejected defendant’s weight of the evidence challenge and did so by citing Bleakley and People v Danielson (9 NY3d 342, 349 [2007])—citations that we noted in Baque indicated that the Appellate Division applied the correct legal standard … .

… [W]e assume that the Appellate Division appropriately conducts its weight of the evidence review in a circumstantial evidence case, unless its decision manifestly demonstrates otherwise … . …

… [T]he Appellate Division cited …cases … indicating that the Appellate Division deferred to the jury’s credibility determinations and that it did not view this as an appropriate case in which to substitute its own credibility determinations for that of the jury … . …

In sum, Baque did not alter the longstanding principle that this Court “cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . People v Anderson, 2026 NY Slip Op 00967, CtApp 2-19-26

Practice Point: Consult this opinion for the criteria for a Court-of-Appeals review of an Appellate Division’s weight-of-the-evidence ruling.

 

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THE FOIL REQUEST FOR THE NAMES AND EMAIL ADDRESSES OF THE SUBSCRIBERS TO A TOWN’S ONLINE ALERT SYSTEM SHOULD HAVE BEEN DENIED AS AN UNWARRANTED INVASION OF PRIVACY (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined the disclosure of the names and email addresses of subscribers to the Town’s online news alert system would constitute an unwarranted invasion of privacy:

The Town uses a notification system called “E-news” to send subscribers email alerts regarding news, updates, or announcements relating to the Town. Petitioner James Russell submitted a FOIL request to the Town seeking disclosure of the names and email addresses of all residents of the Town who subscribe to E-news. Petitioner’s FOIL request relied on the Appellate Division’s decision in Matter of Livson v Town of Greenburgh, which held that a neighboring town was required under FOIL to disclose a similar email subscriber list for its electronic news service because the town had failed to “articulate any privacy interest that would be at stake” (see 141 AD3d 658, 661 [2d Dept 2016]). Petitioner’s request also stated that he would not reproduce, redistribute, or circulate the names or email addresses or use the information contained therein for solicitation, fundraising, or any commercial purpose—the same conditions that the court imposed in Livson … .  * * *

On one side of the scales, the subscribers have a strong privacy interest in keeping their names and email addresses confidential to avoid unwanted and unwelcome communications, and to minimize the risk of cybersecurity threats resulting from disclosure of such information. An email address, and the corresponding holder’s name, are commonly treated as personally identifying information (PII). For example, New York’s Stop Hacks and Improve Electronic Data Security Act includes email addresses, in combination with a password or security question and answer that would permit access to an online account, as an example of protected information which—if accessed or acquired without valid authorization—triggers notification to the affected persons … . …

Generally, individuals share their email address with people they know, or in exchange for a particular benefit or information that they consent to receive. They assume and rely on a common understanding that those with whom they share their email address will maintain that information private from third parties and the public at large, unless otherwise agreed or implied. * * *

The subscribers’ privacy concerns also reflect the ubiquitous use of email as a means of communicating highly sensitive private information. One’s email account generally contains a large amount of personal data. For example, medical records, job applications, consumer purchase histories, tax returns, and credit card, bank account, and social security numbers are often embedded in emails, or in documents attached to emails. In addition, people often use their email addresses as a username or user ID to log in to many different websites or access online services … . * * *

On the other side of the scales, there is no public interest served by disclosure here. Petitioner argues only that disclosure will increase public engagement on issues of community concern. Matter of Russell v Town of Mount Pleasant, N.Y., 2026 NY Slip Op 00966, CtApp 2-19-26

Practice Point: Consult this opinion for a discussion of the privacy concerns raised by the publication of one’s name and email address.

 

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THE JUDGE COMMITTED A MODE OF PROCEEDINGS ERROR BY FAILING TO ACCURATELY AND FULLY INFORM THE DEFENDANT OF THE CONTENTS OF A JURY NOTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the judge committed a mode of proceedings error by not fully explaining the contents of a jury note. The defendant testified that he was sitting in his parked car, with the engine running for heat, listening to music because he didn’t want to disturb his family in a nearby house. The police noticed the car running and found the defendant asleep with an open beer in his hand. Defendant was charged with DWI and other offenses. The jury sent out notes seeking clarification of the term “operate” asking whether “operation” requires an intent to drive the vehicle or whether merely having the engine running constitutes “”operation:”

The court … read the note into the record as follows:

“We the jury would like clarification on the law regarding the first three charges. There is a portion that states the operation is intent to move the vehicle. There was, however, another segment. That segment, stated that operation is if the engine is running.”

When it read the note to the parties it omitted a question from the jury … . The full note stated:

“We would like clarification on the law regarding the first 3 charges. There is a portion that states that operation is intent to move the vehicle. There was however another segment that segment that stated that operation is if the engine is running. Are both correct?” … .

When the court read [another] portion of the note aloud, the court again altered the jury language. The court stated:

“And, then they also said the law for consumption of alcohol beverages in certain motor vehicles does not seem to contain a section that includes solely the engine running, which is also correct, and I will just read them that charge. Is that acceptable?”

But the note read:

“Also, the law for [Consumption] of Alcoholic Beverages in certain motor vehicles does not seem to contain the section that includes solely the engine is running. Is this also correct?. * * *

The court’s failure to read the jury note verbatim, or otherwise create a record demonstrating that the parties had received a copy of the note, deprived Mr. Galindo [defendant] of meaningful notice of the precise contents of the substantive jury note. By omitting the question “Are both correct?”, the court obscured the nature of the jury’s inquiry with respect to the “operates” element shared by the three counts of intoxication and the unlicensed operation charge. The jury’s question strongly suggests it wanted to know whether the “operates” instruction contained two distinct conditions either one of which could satisfy the “operates” element. Put differently, the jury’s question crystallizes its inquiry: whether intent to move the vehicle was necessary or a running engine was sufficient to meet the definition of operation. Had Mr. Galindo been accurately apprised of the contents of the jury note, he would have had the opportunity to provide input into how the court resolved the jury’s inquiry. Instead, Mr. Galindo was deprived of meaningful notice, and rereading the original CJI instruction responsible for the jury’s initial confusion did not adequately address the jury’s question. People v Galindo, 2026 NY Slip Op 00965, CtApp 2-19-26

Practice Point: Here the judge’s failure to read out the jury note verbatim constituted a  mode of proceedings error.

 

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THE INVOLVEMENT OF A VAN IN A ROAD RAGE SHOOTING THREE WEEKS BEFORE THE TRAFFIC STOP AND AN INCIDENT WHERE A TRAFFIC AGENT WAS NEARLY STRUCK BY THE VAN 24 HOURS BEFORE THE STOP PROVIDED “REASONABLE SUSPICION” THAT THE DRIVER OF THE VAN AT THE TIME OF THE STOP WAS THE DRIVER DURING THE ROAD-RAGE AND TRAFFIC-AGENT INCIDENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined “reasonable suspicion” supported a traffic stop of a van which had been involved in a road rage shooting three weeks before and had sped away from a traffic agent, nearly striking the agent, 24 hours before the stop. The driver who was involved in the road-rage and ticket-agent incidents had not been identified at the time of the stop:

Although police must have individualized suspicion that the driver or occupant of a vehicle has committed a crime to conduct a traffic stop, information about a car’s involvement in prior criminal activity may support a finding of reasonable suspicion … . Such prior activity contributes to a determination of reasonable suspicion when it occurs with sufficient temporal and geographic proximity to the stop to infer that the person who was driving the car during the prior crime is also driving at the time of the stop … . …

The officers who stopped the defendant on May 18th had information from a license plate search indicating that a white Dodge Caravan with a license plate number matching the defendant’s vehicle was involved in a road rage shooting in Washington Heights on April 28th. Although that information was nearly three weeks old, the officers also knew from their conversation with the traffic agent that less than 24 hours before the stop and in the same neighborhood, someone driving the same car had evaded a parking ticket and nearly hit the traffic agent as they drove away. Because the driver during the traffic infraction sped away, almost hitting the traffic agent, the officers could have reasonably inferred that the driver during the parking violation was also the driver during the shooting and fled to avoid repercussions from the shooting. Thus, in addition to inferring that there was a connection between the vehicle and the two incidents, they also reasonably inferred that the same person was driving that vehicle during both incidents. Moreover, the officers knew from the vehicle’s registration that it was privately owned, which significantly narrowed the universe of potential drivers … . People v Zubidi, 2026 NY Slip Op 00964, CtApp 2-19-26

Practice Point: Here circumstantial evidence that the same driver of an identified van was involved in a road-rage shooting and in nearly striking a traffic agent was deemed to provide “reasonable suspicion” supporting a traffic stop of the van three weeks after the road-rage incident and 24 hours after the traffic-agent incident.

 

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IF A DEFENDANT’S GUILTY PLEA CASTS DOUBT UPON DEFENDANT’S GUILT OR THE VOLUNTARINESS OF THE PLEA, THE JUDGE MUST “INQUIRE FURTHER;” THIS ISSUE CAN BE APPEALED IN THE ABSENCE OF PRESERVATION BY A MOTION TO WITHDRAW THE PLEA OR VACATE THE CONVICTION; HOWEVER THIS EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY IF A DEFENDANT FIRST RAISES A QUESTION ABOUT HIS GUILT AT SENTENCING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a two-judge concurring opinion, resolving a split of Appellate Division authority, determined that a defendant who pleads guilty but subsequently claims innocence at sentencing must, to preserve the issue for appeal, make a motion to withdraw his plea of vacate his judgment of conviction:

In People v Lopez (71 NY2d 662 [1988]), we articulated a narrow exception to the rule that defendants must move before the trial court—either to withdraw their plea or vacate their judgment of conviction—to preserve their challenge to the factual sufficiency of their plea allocution. The Lopez exception applies “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . If that occurs, and the trial court accepts the plea without inquiring further, “the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made” … .

Defendant now asks us to resolve a question that has divided the Appellate Division: does the Lopez exception apply where, as here, defendant has merely claimed at sentencing that he is not guilty of the crime to which he had previously pleaded guilty? We now clarify that, because the Lopez exception arises from a court’s duty to inquire further where a defendant’s statements prior to entry of the plea cast serious doubt on its validity, the exception does not apply to defendant’s postplea statements made at sentencing. As a result, defendant’s argument that his plea was not knowing and voluntary is unpreserved for our review because defendant did not first move to withdraw his plea or vacate his judgment of conviction. * * *

… [W]e hold that statements made at sentencing challenging the factual basis of a plea do not trigger the [judge’s] duty to inquire. … [T]he Lopez exception to the preservation doctrine does not apply. The Lopez exception is based on the trial court’s constitutional duty to ensure, prior to accepting a plea, that a defendant’s plea is voluntary, knowing, and intelligent … . Inasmuch as the Lopez exception … arises from a trial court’s failure to perform its mandatory “duty to inquire further” prior to accepting a questionable plea… , it does not apply here. People v Rios, 2026 NY Slip Op 00963, CtApp 2-19-26

Practice Point: There is no exception to the preservation requirement when a defendant first raises doubts about his guilt or the voluntariness of his plea at sentencing, as opposed to at the time of the plea. The issue must be preserved by a motion to withdraw the plea or vacate the conviction.

 

THE HOTEL, IN RESPONSE TO A REQUEST FROM FAMILY MEMBERS, ASSUMED A DUTY TO CHECK ON A GUEST WHO HAD THREATENED SUICIDE; THE HOTEL FULFILLED THAT DUTY; THE HOTEL, HOWEVER, DID NOT ASSUME A DUTY TO IMMEDIATELY CALL FOR EMERGENCY ASSISTANCE; THE HOTEL WAS NOT LIABLE FOR THE GUEST’S SUICIDE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive dissenting opinion, determined the defendant hotel, after a request from a guest’s family, had assumed a duty to check on the guest who had threatened suicide in text messages to family members. The hotel fulfilled the assumed duty to check on the guest. However the hotel did not assume a duty to immediately call for emergency assistance after a subsequent request from the family. The hotel, sometime after the family’s request, did procure emergency assistance. The guest was on the window ledge when police officers entered his room. He jumped from the ledge:

Plaintiffs concede that defendants did not have an underlying legal duty to prevent decedent, a hotel guest, from taking his own life. It is undisputed that defendants, as the owner and operator of the premises, are not insurers of a visitor’s safety. Rather, plaintiffs’ theory of liability is one of assumed duty. “[E]ven when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care” … . …

… [T]o be held liable under an assumed duty theory, it is not enough that defendants undertook to perform a service and did so negligently, but their “conduct in undertaking the service [must have] somehow placed [decedent] in a more vulnerable position than he would have been in had [defendants] never taken any action at all” … . * * *

Recognizing an assumed duty in these circumstances would create a specter of liability that discourages rather than encourages hotels from offering assistance to guests contemplating suicide. Because hotels owe no inherent duty to provide such aid, the most rational and likely way for them to avoid liability would be to implement formal policies against their employees involving themselves in efforts to render potentially life-saving aid to guests. In keeping with the State’s “interest[] in preserving life and preventing suicide” … , the better rule is one that incentivizes both hotels and concerned parties to do all they reasonably can in these difficult and emotionally charged situations. Beadell v Eros Mgt. Realty LLC, 2026 NY Slip Op 00962, CtApp 2-19-26

Practice Point: Consult this opinion for an explanation of the circumstances under which a party which does not ordinarily owe a duty of care to another party can “assume” a duty of care in response to a request.

 

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THE YOUTH PART OF COUNTY COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT “EXTRAORDINARY CIRCUMSTANCES” WARRANTED GRANTING THE PEOPLE’S MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S PROSECUTION TO FAMILY COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge dissenting opinion, determined the youth part of County Court did not abuse its discretion in granting the People’s motion to prevent removal of the 17-year-old defendant’s prosecution to Family Court. Under the State’s Raise the Age legislation, the People’s motion to prevent removal to Family Court can be granted in “extraordinary circumstances:”

Although [county court] found that defendant and his accomplices entered the victim’s home with the intent to commit a robbery and, during the course of the robbery, struck the victim several times in the face with a shotgun, the court noted further that the violent nature of the alleged crimes was not by itself a basis for preventing removal on the ground of extraordinary circumstances. Rather, the court opined that it was also required to consider whether defendant was amenable to Family Court services. In that regard, the court found that defendant had several mental health diagnoses but, at the same time, had been receiving services for five years. Based on those considerations, the court concluded that the People had demonstrated extraordinary circumstances sufficient for the case to remain in the youth part.

The Appellate Division affirmed on the basis that defendant participated in a violent home invasion involving weapons and injuries to the victim, and that, despite the Family Court services provided to him over the five years of his involvement with the criminal justice system, he “made no appreciable positive response and continues to engage in escalating criminal behavior” … . Thus, the Appellate Division concluded that, “under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting that this case remain in the youth part” … . People v Guerrero, 2026 NY Slip Op 00826, CtApp 2-17-26

Practice Point: Consult this opinion for insight into when “extraordinary circumstances” will justify granting the People’s motion to prevent removal of a 17-year-old’s prosecution from the youth part of County Court to Family Court.

 

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THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the finding that mother had abused her daughter and son based entirely on videos purportedly showing mother’s former boyfriend abusing one of the children required reversal because the foundation evidence offered for the videos was insufficient: There was a three-judge dissenting opinion, and a separate two-judge dissenting opinion: The majority opinion is too detailed to fairly summarize here. The majority concluded the videos, which were procured by an FBI agent from a suspected child pornographer who had, in turn, procured the videos from a hacked security camera, were not authenticated:

The videos were not discovered in the family home or on any camera or computer belonging to D.K. [the ex-boyfriend] or M.H [mother]. Instead, in the course of an FBI investigation into persons suspected of trading child pornography, the agents executed a search warrant on B.W., who lived in Syracuse. In the course of questioning by FBI Agent Martin Baranski, B.W., though not under oath or in any sworn statement, said (according to Agent Baranski’s recollection) that he had been “hack[ing] into security web cameras for the past few years.” B.W. further stated that in 2019 he had “hacked into a security camera” which showed what he thought was an adult male sexually abusing the man’s 15-year-old stepdaughter. B.W. claimed that he “watched a lot of the security camera footage of this house” and saw “a lot” of interactions between the individuals depicted in the videos. He told Agent Baranski he had saved some videos from that camera in a particular location on his computer, along with a screenshot that contained details about the security camera login information, including a possible name, email and IP address.

Searching a digital copy of B.W.’s computer, Agent Baranski found three videos that appeared to show an adult male sexually abusing a young girl; the videos contained timestamps indicating they were recorded around the summer of 2019. Based on information from the screenshot on the suspect’s computer and other investigative work, Agent Baranski was able to identify D.K.’s name and workplace; he then relayed that information to New York law enforcement. * * *

The rules of evidence apply in Family Court just as much as they apply in any other court. The proponent of evidence bears the burden of demonstrating its authenticity … . … The failure to authenticate evidence sufficiently does not mean the evidence was false, but only that it was not properly authenticated according to the rules of evidence. … We do not mean to suggest that the videos here could not have been authenticated, or that child victims must testify, or that B.W., Agent Baranski, or some other person could not have offered adequate authentication testimony. But the evidence of authentication proffered here was legally insufficient. What that means for the next case is that in Family Court, as in all our courts, evidence must be properly authenticated. Matter of M.S. (M.H.), 2026 NY Slip Op 00825, CtApp 2-17-26

Practice Point: The rules of evidence apply equally in Family Court. Here the finding that mother abused the children was based entirely on video evidence. Because the video evidence was not authenticated, the abuse finding was reversed.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE FOR “IMPAIRMENT” WHICH WAS APPLIED BY THE THIRD DEPARTMENT IN A RECENT VEHICULAR MANSLAUGHTER CASE; IT WAS NOT CLEAR THE “IMPAIRMENT” CHARGE IN THE VEHICULAR MANSLAUGHTER CASE WAS APPLICABLE IN THE INSTANT “DRIVING WHILE ABILITY IMPAIRED BY DRUGS” CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined that defense counsel was not ineffective for failing to request a jury instruction based upon a recent Third Department appellate decision [People v Caden N, 189 AD2d at 90-91] which was not clearly applicable. The Third Department had held that the standard for “impairment by drugs” in a vehicular manslaughter case was the higher standard used for “intoxication by alcohol” [a ruling rejected by Court of Appeals in People v Dondorfer, 2026 NY Slip Op 00823, CtApp 2-17-26]. T he charges in the instant case were “driving while ability impaired by drugs,” not vehicular manslaughter:

Defendant argues that Caden N. established a clear right within the Third Department to a jury charge in Vehicle and Traffic Law § 1192 (4) and (4-a) cases that defines impairment by drugs consistent with the higher standard of intoxication by alcohol from Cruz [48 NY2d at 422, 428]. But as the Third Department itself explained below, the holding and reasoning of Caden N. were carefully limited to the statutory scheme for vehicular manslaughter, and at the time of defendant’s trial, no court in this State had extended the reasoning of Caden N. to charges under Vehicle and Traffic Law § 1192 (4) or (4-a) … . Further, the model jury instructions—on which this Court has advised both counsel and trial courts to rely …—were not revised to account for Caden N. until December 2021, three months after defendant’s trial … . Even then, the CJI [Criminal Jury Instructions] Committee advised in an explanatory note that “Caden N. did not explicitly discuss whether the standard for impairment for purposes of a prosecution for [vehicular] manslaughter in the second degree was also the standard to be applied in a prosecution for only VTL 1192 (4),” and that, “until an appellate court decides otherwise,” a trial court may “decide to apply Caden N.’s definition of impairment for a vehicular manslaughter or assault charge and the impaired ‘to any extent’ definition for a VTL driving while impaired by the use of a drug or combination of [substances] charge” … . People v Ambrosio, 2026 NY Slip Op 00824, CtApp 2-17-26

Practice Point: Here defense counsel was not ineffective for failing to request a jury charge which was not clearly applicable to the offense.

 

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