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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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DEFENDANT’S SHOWING A HANDGUN TO HER EX-BOYFRIEND DID NOT CONSTITUTE “DISPLAYING” THE WEAPON IN FURTHERANCE OF THE OFFENSE; THEREFORE THERE WAS NO IMPEDIMENT TO REMOVING THE SEVENTEEN-YEAR-OLD DEFENDANT’S “CRIMINAL POSSESSION OF A WEAPON” CASE TO FAMILY COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the seventeen-year-old defendant’s showing her ex-boyfriend a handgun she had on her person dis not amount to “displaying” the weapon such that the case could not be removed to Family Court:

… [D]efendant was charged with a violent felony (see Penal Law § 70.02 [1] [b]), and thus the People could prevent removal to Family Court without a formal motion under one of the CPL 722.23 (2) (c) exceptions, i.e., as relevant here, that defendant “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [the charged] offense[s]” (CPL 722.23 [2] [c] [ii]; see Penal Law §§ 265.02 [3]; 265.03 [3]). * * *

… [D]efendant did not “further” her possession of the weapon merely by displaying it to her ex-boyfriend, even if she did so to emphasize her control of the handgun … .Every display of a handgun emphasizes control by the person possessing it, and thus every display would always further the charged offense. So too with the dissent’s proposed construction. Every display of a weapon provides evidence of possession—it is not possible to display the weapon without possessing it—and thus there would always be a “logical nexus” between a display and the possessory offense … . Either reading would effectively render meaningless the separate statutory requirement that the display “further[ ]” the charged offense (CPL 722.23 [2] [c] [ii]). Had the legislature wished to do so, it could have required that the People demonstrate only that the adolescent offender “displayed” a designated weapon, and stopped there, without also requiring that the offender did so “in furtherance of” the charged offense (CPL 722.23 [2] [c] [ii]). That language must be given effect and interpreted to require something more than merely displaying the weapon … . People v Neyshaliz M. V., 2026 NY Slip Op 04581, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of what it means to “display” a weapon “in furtherance” of the charged offense (criminal possession of a weapon). Merely showing the weapon to defendant’s ex-boyfriend did not amount to displaying the weapon in furtherance of the offense.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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PLAINTIFFS, RESIDENTS OF EAST BUFFALO, STATED CAUSES OF ACTION AGAINST THE STATE FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE AND VIOLATION OF THE GREEN AMENDMENT TO THE NEW YORK CONSTITUTION BY THE CONSTRUCTION OF AN EXPRESSWAY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the complaint alleging the State, in constructing an expressway, violated the public trust doctrine and the Green Amendment, should not have been dismissed:

Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. * * *

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature “plainly conferred” the alienation of Humboldt Parkway … . * * *

The Green Amendment to the New York State Constitution states that “[e]ach person shall have a right to clean air and water, and a healthful environment” (NY Const, art I, § 19 …). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. East Side Parkways Coalition v New York State Dept. of Transp., 2026 NY Slip Op 04562, Fourth Dept 7-24-26

Practice Point: Here plaintiffs, residents of East Buffalo who live near an expressway, stated causes of action against the State stemming from the construction of the expressway on land which once served as a park.

 

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ALTHOUGH THE BIPOLAR-DISORDER DIAGNOSIS WAS MADE “POST-CRIME,” THE EVIDENCE WAS RELEVANT TO DEFENDANT’S “MENTAL DISEASE OR DEFECT” AFFIRMATIVE DEFENSE AND SHOULD NOT HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the psychiatric evidence regarding defendant’s “post-crime” mental health (bipolar disorder) was relevant to defendant’s “mental disease or defect” affirmative defense and should not have been precluded. The psychiatrist could not testify defendant suffered from “bipolar disorder” at the time of offense, but could testify that the disorder takes years to develop, which meets the flexible “relevancy” test:

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” … . …

We conclude that “[i]nasmuch as the psychiatrist’s [prospective] testimony that defendant was suffering from [bipolar disorder, type 1, most recent episode manic with psychotic features] would render a finding of lack of criminal responsibility more probable than it would be without such evidence, the [psychiatrist’s] diagnosis [was] . . . relevant” … . …

Here, although the psychiatrist did not evaluate defendant prior to the crimes and thus could not render a medical opinion that defendant had bipolar disorder on the date of the crimes, “there were indications in [his] testimony that the mental disease from which defendant was suffering could take [years] to develop [before diagnosis] and [that] . . . the [prior medical] records . . . suggest[ed] the existence of some mental disorder a considerable time before the crime[s]” … . …

Finally, we conclude that the error is not harmless … . The preclusion of the psychiatrist’s testimony effectively prevented defendant from mounting his affirmative defense (see Penal Law § 40.15) and severely undermined his ability to separately argue that he lacked the requisite mental state to commit the charged offenses … . Inasmuch as ” ‘it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required’ ” … . People v Williams, 2026 NY Slip Op 04095, Fourth Dept 6-26-26

Practice Point: Consult this decision for insight into the relevancy of evidence. Here a post-crime bipolar disorder diagnosis was deemed relevant to defendant’s “mental disease or defect” affirmatve defense.​

 

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THE POLICE DID NOT HAVE INFORMATION DEMONSTRATING THE TEMPORARY TEXAS REGISTRATION WAS INVALID AT THE TIME THEY IMPOUNDED THE CAR; THE INVENTORY SEARCH WAS IMPROPER AND THE HANDGUNS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the officers who stopped defendant’s vehicle did not have any information that the temporary Texas registration was invalid at the time the vehicle was impounded. Therefore the inventory search was invalid and the handguns should have been suppressed:

“An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched” … . Inventory searches may not be used as “a ruse for a general rummaging in order to discover incriminating evidence” … and, unlike a traffic stop, “will be constitutionally invalid where the search was merely a pretext to search for evidence of a crime” … . “Only a lawfully impounded vehicle may be subjected to an inventory search” … , and “[t]he People bear the threshold burden of demonstrating that the subject vehicle was lawfully impounded at the time of the inventory search” … . People v Boatwright, 2026 NY Slip Op 04071, Fourth Dept 6-26-26

Practice Point: Without a valid reason to impound a car, an inventory search of the car is not justified.​

 

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THE REFEREE DID NOT HAVE JURISDICTION TO DISMISS THE FAMILY OFFENSE PETITION; NEITHER MOTHER NOR THE RESPONDENT HUSBAND (WHO DID NOT APPEAR) CONSENTED TO THE REFEREE’S HEARING THE MATTER; THE POWERS OF A REFEREE ARE EXPLAINED (FOURTH DEPT).

The Fourth Department, reversal the order by the referee dismissing the family offense proceeding, determined the referee was without jurisdiction to decide the matter because neither mother nor respondent husband (who did not appear) consented the referee hearing the matter:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon consent of the parties, except in limited circumstances” … . “Absent the parties’ consent to the reference, the . . . [r]eferee ha[s] the power only to hear and report [their] findings” … . An appropriate order of reference is thus an “essential jurisdictional predicate” to the authority of the referee to act … , and a referee “who attempts to determine matters not referred to [them] by the order of reference acts beyond and in excess of [their] jurisdiction” … .

Here, as noted, petitioner never consented to the Referee hearing the matter. Although CPLR 4317 (b) permits a referee to hear and determine an issue without the consent of the parties where the trial of the issue “will require the examination of a long account,” where the issue is one “of damages separately triable and not requiring a trial by jury,” or “where otherwise authorized by law,” none of those exceptions to the consent requirement applies here. Thus, the Referee “lacked jurisdiction to dismiss the petition” … , even without prejudice. We note in any event that, absent a fact-finding hearing, which did not take place, the Referee had no grounds to dismiss the petition based on insufficient evidence. Matter of Fournier v Perez, 2026 NY Slip Op 04063, Fourth Dept 6-26-26

Practice Point: Consult this decision for a concise explanation of the powers of a Family Court referee.

 

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THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and he did not admit to an essential element of burglary, the intent to commit a crime upon entering:

… [W]e agree with defendant that his waiver of the right to appeal is invalid. Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the “end of the case.” Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver “does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it” … .

Defendant contends that his plea is invalid because the plea allocution negated an element of the crime to which he pleaded guilty. As defendant acknowledges, he never moved to withdraw his plea, nor did he ever seek to vacate the judgment of conviction. This case, however, falls within the rare exception to the preservation requirement … . Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the “intent to commit a crime therein” (Penal Law § 140.30). Here, defendant twice indicated during his factual allocution that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent … . Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient … . The court therefore erred in accepting defendant’s guilty plea … . People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26

Practice Point: Re: a waiver of appeal, a defect in the oral appeal-waiver colloquy with the judge is not cured by a written waiver unless the defendant is asked whether he read and understood the written waiver before signing it.

Practice Point: Entering a home with the intent to retrieve one’s own property is not “burglary” because the entry was not accompanied by an intent to commit a crime.

 

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HERE THE VILLAGE SOUGHT TO ANNUL THE CITY’S IMPOSITION OF HIGHER SEWER CHARGES; THE CITY INTERPOSED SEVERAL COUNTERCLAIMS THAT WERE BASED ON THEORIES NOT INCLUDED IN THE CITY’S EARLIER NOTICE OF CLAIM WHICH ALLEGED ONLY BREACH OF CONTRACT; BECAUSE THE COUNTERCLAIMS RAISED THEORIES NOT ENCOMPASSED BY THE CITY’S EARLIER NOTICE OF CLAIM, THEY WERE DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined all of the city’s counterclaims against the village should have been dismissed for failure to meet the “notice of claim” requirements. The village commenced this hybrid CPLR article 78 and declaratory judgment action seeking to annul the city’s determination to charge a higher rate for sewer services than had been charged under the parties “longtime agreement.” The city interposed counterclaims based on theories not encompassed by the city’s notice of claim. All the counterclaims should have been dismissed on that ground:

“CPLR 9802 sets forth the procedure by which certain actions against villages may be maintained” … . “In addition to providing for the maintenance of contract actions against villages, the statute also provides, in pertinent part, that ‘no other action shall be maintained against [a] village unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been made and served in compliance with [General Municipal Law § 50-e]’ ” …). Consequently, “[i]t is a condition precedent to, and indeed an essential element of, any cause of action . . . against a village that the [claimant] have served upon the village a notice of claim setting forth, inter alia, the nature of the claim and the items of damage or injuries claimed to have been sustained” … . “A claimant need not state a precise cause of action in haec verba in a notice of claim . . . , but a claimant may not raise in the [pleading] causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one” … . Furthermore, “the requirements of notice of claim statutes[, including CPLR 9802,] apply to the filing of counterclaims” … . “[T]he notice of claim requirements of CPLR 9802 [also] apply to . . . causes of action [or claims] for declaratory relief” … .

Here, the notice of claim was premised exclusively on the theory that the City was entitled to monetary damages and a declaratory judgment based on the Village’s alleged breach of the parties’ agreement. Conversely, the City’s first counterclaim seeks a declaration that the agreement had actually expired before the breach alleged in the notice of claim, and the third counterclaim seeks monetary damages for debt allegedly incurred by the Village after the purported expiration of the agreement. The fourth and fifth counterclaims for quantum meruit and unjust enrichment, respectively, are also premised on legal theories other than breach of contract. We thus conclude that those counterclaims improperly raise claims or legal theories “that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim[s] or assert . . . new one[s]” … . Village of Allegany v City of Olean, 2026 NY Slip Op 03555, Fourth Dept 6-5-26

Practice Point: A condition precedent to an action against a village is the filing of a notice of claim. The condition applies to counterclaims and requests for declaratory judgments. Here the city’s earlier notice of claim against the village was based solely on an alleged breach of contract. The subsequent counterclaims raised by the city in response to the village’s Article 78 proceeding were based on theories not encompassed by the city’s earlier notice of claim and were dismissed on that ground.

 

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