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DEFENDANT SPECIFICALLY CHALLENGED THE ACCURACY OF THE DMV DATABASE WHICH PURPORTEDLY INDICATED DEFENDANT’S DRIVER’S LICENSE HAD BEEN SUSPENDED (THE BASIS FOR THE TRAFFIC STOP): THE PEOPLE THEREFORE WERE REQUIRED TO DEMONSTRATE THE RELIABILITY OF THE DMV DATABASE TO DEMONSTRATE PROBABLE CAUSE; BY FAILING TO INTRODUCE ANY EVIDENCE ON THE ISSUE, THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the judgment of conviction, suppressing the physical evidence and dismissing the indictment, over a two-justice dissent, determined the People did not demonstrate that the traffic stop was justified because the People offered no proof defendant’s license had been suspended at the time of the stop. An officer testified, just prior to stopping the defendant, he checked the DMV database on his in-vehicle computer where the suspension of defendant’s license was indicated. But no evidence establishing the license suspension or the accuracy of the DMV database was introduced:

Defendant contends that the People were required to establish, at the suppression hearing, that defendant’s license had been suspended, because defendant challenged the reliability of the DMV information, and that the court therefore erred in refusing to suppress physical evidence. We agree.

“It is well settled that, although ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” … . As relevant here, a vehicle stop is permissible when based on probable cause that the driver has committed a traffic violation … .

Under the “fellow officer rule” …. , “[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability” … , and the same rule applies to the DMV database accessible on an in-vehicle computer … . “[T]he probabilities are that such detailed information of the type in these communications does not find its way onto the police air waves [or mobile data terminal] without substantial basis” … .

“But where on a motion to suppress, a challenge to the [officer’s] action is made, the presumption of probable cause that originally cloaked that action disappears from the case” … .  If a defendant raises a “specific challenge” to the reliability of certain transmitted information, that information may not be relied upon by the suppression court … . “[B]are reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause” … . “[T]he People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act” … . “The pertinent inquiry in all situations has been directed to the nature and reliability of the information possessed by the person or agency transmitting the information” … . People v McGuire, 2026 NY Slip Op 04597, Fourth Dept 7-24-26

Practice Point: When the accuracy of information transmitted to the arresting officer is specifically challenged, the People must prove the reliability of the information. Here the accuracy of the DMV database (showing that defendant’s license had been suspended) was specifically challenged. Because the People did not attempt to prove the information in the DMV database was reliable, they did not demonstrate probable cause for the traffic stop.

 

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THE POLICE ASKED FOR DEFENDANT’S NAME AND DATE OF BIRTH; HE PROVIDED A FALSE NAME; HE PROVIDED HIS REAL NAME ONLY AFTER HE WAS WARNED OF THE CONSEQUENCES OF PROVIDING A FALSE NAME AND DETAINED; THE POLICE QUESTIONING DID NOT TRIGGER THE NEED FOR THE MIRANDA WARNINGS BECAUSE THE POLICE WERE SEEKING ONLY “PEDIGREE” INFORMATION; THERE WAS A TWO-JUSTICE DISSENT (FOURTH DEPT).

he Fourth Department, affirming the conviction, determined there was no Miranda violation because the police asked only pedigree questions. The two dissenters disagreed:

… [T]he police officer, accompanied by two other members of the police department, responded to a residence after receiving a complaint that there were unwanted guests there. Upon their arrival, the complainant reported to the police that there were two unwanted guests in the residence: a female guest identified by name and a male guest supposedly named “Rodney.” The police identified the female guest by name and she agreed to leave without argument.

The police located the male guest—later identified as defendant—in the closet of a back bedroom underneath some clothes and other items. The police asked defendant to identify himself by name and date of birth. Defendant provided the police with the false name “Rodney Miller” and a purported date of birth. The police gave defendant multiple warnings that it was illegal to lie to them about his name, but defendant continued to provide the false name. The officer testified that defendant was not free to leave during the interaction until the police identified him. The officer explained, among other things, that the police did not provide defendant with Miranda warnings prior to asking for his name and date of birth because they were merely attempting to obtain defendant’s pedigree information as a routine matter for any such encounter. The officer further testified that the police then informed defendant that he was going to be detained and, upon being detained, defendant provided his real name. Thereafter, the police ultimately determined that there was an order of protection in place against defendant and in favor of the female guest. The police then arrested defendant for violating the order of protection and for providing false pedigree information. * * *

… [W]e conclude that the court properly determined that the pedigree exception applied and thus properly denied that part of defendant’s omnibus motion seeking to suppress his statements to the police. The officer testified at the suppression hearing that the purpose of asking pedigree questions of both the female guest and defendant was “[t]o identify who they were and advise them they were no longer welcome there,” and that requesting general information such as names and dates of birth was routine for any such encounter. The officer’s testimony thus established the administrative purpose for seeking pedigree information during an encounter of that nature: the police must know with whom they are speaking in a residence … . The People “thereby established the threshold basis for the pedigree exception to apply, i.e., the questions were reasonably related to the police’s administrative concerns” … . * * *

As the Court of Appeals has cautioned, “[a]lthough there may be some circumstances where asking a suspect for core identifying information such as name, date of birth, and address will not qualify for the pedigree exception to Miranda, those circumstances will be rare” (id. at 416). People v Milton, 2026 NY Slip Op 04584, Fourth Dept 7-24-26

Practice Point; The police may ask for a person’s name and date of birth without providing Miranda warnings, even when the police are aware the person has provided a false name.

 

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THE ATTEMPTED RAPE AND ROBBERY CONVICTIONS WERE “AGAINST THE WEIGHT OF THE EVIDENCE” (FOURTH DEPT).

The Fourth Department, reversing the attempted rape and robbery convictions, determined there was insufficient evidence defendant intended to have intercourse with the victim there was insufficient evidence defendant intended to deprive the victim of her emergency alarm which he possessed only briefly and then discarded. The convictions were deemed “against the weight of the evidence.” The defendant was an inmate in a correctional facility and the victim a civilian employee. The defendant attacked and fell on top of the victim after following her to a secluded area of the prison kitchen. The assault conviction was affirmed:

… [W]e conclude that the People failed to prove beyond a reasonable doubt that defendant intended and attempted to have sexual intercourse with the victim. Beyond the surrounding circumstances, such as the location of the attack and defendant’s insistence that the victim be quiet, the sole evidence presented by the People from which a factfinder could infer any sexual component to defendant’s actions was the victim’s testimony that, after they fell to the floor and defendant was on top of her, defendant’s “hands were all over [her] at that point.” The victim further acknowledged, however, that defendant never physically reached underneath any of her clothing and never attempted to remove her pants. Unlike comparable cases, the People here adduced no evidence of a particularized sexual motivation or component underlying defendant’s actions, nor did the People present evidence—beyond the generalized testimony that defendant’s hands were “all over” the victim—that defendant attempted to engage specifically in sexual intercourse with the victim … . Even though “the absence of an explicit demand for sex does not undermine a finding of attempted rape” under circumstances from which a factfinder could reasonably conclude that the defendant intended and attempted to engage, specifically, in forcible sexual intercourse … , we conclude that the evidence is not strong enough to establish the existence of such circumstances in this case. People v Jenkins, 2026 NY Slip Op 04677, Fourth Dept 7-24-26

Practice Point: Consult this decision for two rare examples of “against the weight of the evidence” reversals.

 

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THE JUDGE DID NOT MAKE THE REQUISITE “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; DECISION RESERVED AND MATTER SENT BACK (FOURTH DEPT).

The Fourth Department, reserving decision on this appeal of the denial of a suppression motion, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself:

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” … . In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” … , including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” … . “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” … .

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry . . . to insur[e] that . . . defendant [was] aware of the dangers and disadvantages of proceeding without counsel” … . We conclude that “the tainted proceeding had an adverse impact on defendant” … and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination … . People v Ocasio, 2026 NY Slip Op 04595, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of the “searching inquiry” a judge must engage in before allowing a defendant to represent himself.

 

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THE JUDGE SHOULD NOT HAVE REMOVED RESPONDENT CO-TRUSTEE WITHOUT A HEARING, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the respondent co-trustee should not have been removed without a hearing. Where the facts are disputed, a hearing is required:

… “[The] removal of a fiduciary pursuant to SCPA 711 [or] 719 is equivalent to ‘a judicial nullification of the [settlor’s] choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established’ ” … . Under either SCPA 711 or 719, ” ‘[t]he Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions [or] where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge’ ” … , and the removal of a trustee without a hearing “will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy’ ” … . Here, in response to the factual averments by petitioners as to his misconduct, respondent submitted, inter alia, an affidavit in which he denied having ever improperly removed Trust assets or interfering with the leasing of Trust property, explained how his actions accorded—in his view—with his powers and obligations under the Trust documents, and disputed petitioners’ underlying factual averments. Presented with the competing claims, a hearing was required inasmuch as “the Surrogate must make a credibility determination concerning those issues, and then exercise [their] discretion concerning whether respondent should be removed from [his] appointment[ ]” … . Matter of Simmons (Simmons), 2026 NY Slip Op 04675, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into when a hearing is required before a co-trustee can be removed under the Surrogate’s Court Procedure Act (SPCA).

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; MANSLAUGHTER CONVICTION REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s manslaughter conviction, determined the People did not disprove the justification defense. The evidence demonstrated shots were fired at the car in which defendant was a passenger before defendant fired his weapon:

A person is justified in using deadly physical force against another person if they “reasonably believe[ ] that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). Deadly physical force “encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the ‘imminent threat’ of deadly force,” and therefore “the imminent threat to use a gun constitute[s] the threat of deadly physical force even if the gun is never fired” … . The evidence at trial established that defendant told the police that the unnamed assailants started shooting at the occupants of the vehicle before any shots were fired by those inside the vehicle. A witness to the shootout testified that she saw one of the unnamed assailants remove a gun out of his pocket and then she saw and heard gunshots. The evidence further established that multiple rounds were fired at the vehicle from the outside. Contrary to the People’s contention, they did not establish beyond a reasonable doubt that defendant, who was not the driver of the vehicle, could have retreated with complete personal safety before he used deadly physical force, or that he knew he could do so … . People v Major, 2026 NY Slip Op 04585, Fourth Dept 7-24-26

Practice Point: Multiple shots were fired at the vehicle in which defendant was a passenger before defendant fired his weapon. The People failed to disprove the justification defense and the manslaughter conviction was reversed.

 

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DEFENDANT DRIVER STRUCK PLAINTIFF PEDESTRIAN AS HE ATTEMPTED TO CROSS THE ROAD; DEFENDANT DID NOT DEMONSTRATE SHE COULD NOT HAVE SEEN PLAINTIFF AND COULD NOT HAVE AVOIDED STRIKING PLAINTIFF; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant driver did not demonstrate she could not have seen plaintiff pedestrian and could not have avoided striking plaintiff as he attempted to cross the road:

… [D]efendant, “as the movant for summary judgment, had the burden of establishing as a matter of law that [she] was not negligent or that, even if [she] was negligent, [her] negligence was not a proximate cause of the accident” … . Defendant failed, however, to meet her initial burden with respect to either her negligence or proximate cause. Although the evidence submitted by defendant established that she was not speeding, was not impaired and had not committed any traffic violations, defendant’s evidence included, inter alia, deposition testimony from a driver of an eastbound vehicle who observed plaintiff begin to cross his lanes of traffic, and that driver testified that he was able to swerve and avoid colliding with plaintiff. Defendant’s submissions indicate that plaintiff then proceeded through the median area between the eastbound and westbound lanes and then attempted to cross the westbound lanes, whereupon he collided with defendant’s vehicle.

We agree with plaintiff that defendant’s own evidence raises triable issues of fact whether she ” ‘could have seen [plaintiff] before the accident and failed to exercise due care to avoid the accident’ ” (Uhteg, 200 AD3d at 1697). In Uhteg, as here, “the pedestrian had already crossed a few lanes of traffic and had done so at a pace faster than a walk but not fully a run” … . Moreover, there is no evidence that defendant’s view of the oncoming lanes or median area was obscured … . Koff v Lawson, 2026 NY Slip Op 04582, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of what a defendant must demonstrate for summary judgment where defendant driver strikes plaintiff pedestrian as plaintiff attempted to cross the road.

 

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TO RENDER THE “HARMLESS ERROR” DOCTRINE INAPPLICABLE, THERE MUST BE “OVERWHELMING” EVIDENCE OF GUILT, WHICH IS MORE THAN “PROOF BEYOND A REASONABLE DOUBT;” HERE THERE WAS “OVERWHELMING” EVIDENCE OF GUILT FOR THE BURGLARY COUNTS, BUT ONLY “PROOF BEYOND A REASONABLE DOUBT” FOR THE SHARED INTENT ELEMENT OF THE ASSAULT COUNT; THEREFORE THE ERROR IN ADMITTING IDENTIFICATION EVIDENCE COULD NOT BE DEEMED HARMLESS FOR THE ASSAULT COUNT AND A NEW TRIAL ON THAT COUNT WAS ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s assault conviction, determined the evidence defendant shared the codefendant’s intent to cause physical injury was not “overwhelming,” therefore the harmless error standard did not apply. The error, which was deemed harmless for other counts for which the evidence was deemed “overwhelming,” was the introduction of identification evidence where no CPL 710.30 notice was provided by the People. The motion court determined the identification was “confirmatory,” but the Fourth Department disagreed because the victim only met defendant once for a few minutes:

An identification is considered confirmatory only where, “as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . The exception “does not apply where the familiarity emanates from a brief encounter” … .

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was ” ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure … . * * *

The People were required to prove, among other things, that defendant shared the codefendant’s intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt … and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge … . We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment. People v Hurst, 2026 NY Slip Op 04717, Fourth Dept 7-24-26

Practice Point: This decision highlights a difference between a “legal sufficiency” and a “weight of the evidence” analysis on appeal. Under a “weight of the evidence” analysis, if the proof of guilt is “beyond a reasonable doubt” (i.e., legally sufficient), but is not “overwhelming,” the harmless error doctrine in inapplicable. [EDITOR’S NOTE: I HAVE DIFFICULTY UNDERSTANDING THE CRITERIA FOR “LEGAL INSUFFICIENCY” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” AT THE APPELLATE LEVEL. THIS DECISION APPEARS TO ILLUSTRATE ONE OF THE DIFFERENCES. IF ANYONE CAN HELP ME UNDERSTAND THE RELEVANT ANALYTICAL CRITERIA, I WOULD BE MOST GRATEFUL.]

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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