Latest News in New York Criminal Law by Defense Attorney Jason Russo – December, 2023

Jason L Russo, Esq.

Jason L. Russo, Esq.

Jason L. Russo, a former New York prosecutor with 25 years of experience in criminal law, is a partner at Gaitman & Russo, LLP, a boutique law firm practicing Federal and State criminal defense, criminal appeals, and post-conviction relief.  He can be reached directly at 877-707-5659 or at

New York State Unified Court System Seal

In today’s New York Criminal Caselaw Roundup we’ll be discussing the latest in developments of New York criminal law, criminal appeals, and post-conviction relief.

Cases that we’ll cover include identification, in-court identification, CPL § 30.30, Certificate of Compliance, illusory, speedy trial, CPL § 245.20, late discovery, late disclosure, Speedy Trial, canine search, canine sniff, Fourth Amendment, abandonment, suppression, right to counsel, Murder in the Second Degree, immigration consequences, Criminal Possession of a Forged Instrument in the Third Degree, Attempted Identity Theft in the Second Degree, Predatory Sexual Assault Against a Child, Rape in the First Degree, Rape in the Second Degree, Criminal Sexual Act in the Second Degree, waiver of indictment, Superior Court information, Class A Felony, jurisdictionally defective, Failure to Register as a Sex Offender, Criminally Negligent Homicide, Reckless Driving, Obscene Sexual Performance by a Child, Penal Law § 263.11, downward departure, Level One Sex Offender, mitigating factors, Level Two Sex Offender, and more.

The New York Criminal Caselaw Roundup is a blog and video podcast by criminal defense and appeals lawyers Jason L. Russo and Steven J. Gaitman summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of New York.  Each week we digest the latest reversed convictions throughout the New York Appellate Divisions and the New York Court of Appeals, as well as the United States Court of Appeals and the United States Supreme Court.

This is a FREE service designed to give you the cutting edge of developments in New York criminal law, appeals, and post-conviction relief.

Visit us at


CLICK TO READ People v. Devon T. Butler, No. 95

In this case, the Court of Appeals held that that the use of a narcotics-detection dog to sniff defendant’s body for evidence of a crime qualified as a search and thus implicated the protections of the Fourth Amendment.

In 2017, two police officers observed what they believed to be a hand-to-hand drug transaction in a parking lot known for such activity. The officers followed defendant’s vehicle from the scene. After observing defendant engage in evasive driving maneuvers and failing to stop at a stop sign, the officers initiated a traffic stop. Upon questioning, defendant admitted that he did not have a valid driver’s license, and his explanation of his destination and origin did not align with what the officers had observed. When defendant stepped out of his vehicle, the officers noticed a bulge in his pants that he explained was $1,000 cash.  After defendant declined the officers’ request for consent to search his vehicle, one of the officers retrieved a Belgian Malinois named Apache to sniff-test the vehicle for the presence of narcotics. As the canine was led toward the vehicle it began to pull on its leash toward defendant, who was then standing six to eight feet away, indicating to the officer that the dog had detected narcotics.  When the officer stated that “[t]he dog has got something,” defendant ran.  Police pursued him and found he had discarded 76 glassine envelopes of heroin, which defendant admitted belonged to him. Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree, Tampering with Physical Evidence, and Obstructing Governmental Administration in the Second Degree.

Defendant moved to suppress.  After a hearing, the trial court denied the motion, reasoning that the officers had a “founded suspicion” of criminal activity to justify the sniff-search of defendant’s vehicle, but that the sniff of defendant’s person was not a search because there is no “reasonable expectation of privacy in the air surrounding a person.”  The court also held that defendant had voluntarily abandoned the narcotics during his flight from police. Following these rulings, defendant pleaded guilty to both the possession and tampering charges and appealed from the resulting judgment.  The Appellate Division affirmed.

The Court of Appeals reversed and granted suppression.  Taking guidance from United States Supreme Court decisions, the Court of Appeals held that under the Fourth Amendment of the United States Constitution, the use of a canine to sniff defendant’s body for the presence of narcotics qualified as a search.  The Court of Appeals did not decide the case on New York State Constitutional grounds.

The Court remanded the case back to the trial court for a new determination.

CLICK TO READ People v. Michael Bay, No. 92

This appeal concerns a new requirement set forth in CPL article 245 that the People file a certificate of compliance (COC) with their statutory disclosure obligations (see CPL 245.50 [1], [3]). Here, weeks after filing their COC, the People turned over several key discovery items that were within their possession and control and therefore subject to automatic disclosure under the recently-enacted CPL § 245.20. The defendant sought dismissal pursuant to CPL § 30.30, arguing that the People were not actually ready for trial within the applicable speedy trial period because they had not exercised due diligence with respect to their disclosure obligations. The question is whether the COC was improper in light of the People’s belated disclosure, and whether the People’s statement of readiness was therefore illusory for purposes of CPL § 30.30.

Because the People failed to show they had exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing the COC, the COC was not proper when filed, and the prosecution’s declaration of trial readiness was therefore illusory.

CPL § 30.30 motion granted, case dismissed.

CLICK TO READ People v. Thomas P. Perdue, No. 28

In every trial, the People bear the burden of proving beyond a reasonable doubt that the defendant is the person who committed the charged

The question in this appeal is whether a witness was properly allowed to identify defendant Thomas Perdue as the perpetrator for the first time in court, without having been subjected to any pretrial identification procedure.  The Court of Appeals held that when the People call a witness who may make a first-time, in-court identification, they must ensure that the defendant is aware of that possibility as early as practicable so that the defendant has a meaningful opportunity to request alternative identification procedures. If the defendant explicitly requests such procedures, a trial court may exercise its discretion to fashion any measures necessary to reduce the risk of misidentification. The ultimate determination of whether to admit a first-time, in-court identification, like any evidence, rests within the evidentiary gate-keeping discretion of the trial court. The court must balance the probative value of the identification against the dangers of misidentification and other prejudice to the defendant.

Here, defendant was aware from pre-trial discovery that the witness might make a first-time, in-court identification but sought only preclusion of the identification. Because the witness’s testimony and pretrial statements established the reliability of her first-time, in-court identification, and the lack of formal notice did not significantly prejudice defendant, the trial court did not abuse its discretion in denying defendant’s request to preclude it.  The conviction was affirmed on these facts.


No reversals reported.


CLICK TO READ People v. Paolo Jean, Docket # 2019-08425, 2019-10264

Defendant pled guilty to Criminal Possession of a Forged Instrument in the Third Degree and Attempted Identity Theft in the Second Degree.  At the time of the plea, the court failed to advise him that if he were not a United States citizen, he could face adverse immigration consequences.  He appealed, and the Second Department remitted the case to give Defendant the opportunity to withdraw his guilty pleas if he makes the requisite showing that he would not have pleaded guilty had the court warned him of the possibility of deportation.

CLICK TO READ People v. Eugene Scott, Docket # 2019-12740

Defendant was charged with Murder in the Second Degree and assigned counsel.  While the case was pending, he sent the trial court a letter indicating that he had had no conferences or meetings with his assigned counsel, that counsel had failed to appear in court on several control dates, that there had been a complete breakdown in communication between the defendant and counsel, and that counsel’s omnibus motion contained numerous factual inaccuracies. The defendant also requested a six-week adjournment to attempt to secure representation from a particular attorney who purportedly had agreed to represent the defendant.

The trial court summarily denied the application without conducting any inquiry.  At a later court appearance, the defendant read a long statement listing his reasons for not wanting to be represented by his assigned attorney.  The court denied that request, and told Defendant that his alternative was to represent himself.  He was convicted after a jury trial of Murder in the Second Degree.

The Second Department reversed, finding that the trial court’s actions in summarily denying the motion violated the Defendant’s right to counsel.  The conviction was reversed and the case remanded to a different judge.


CLICK TO READ People v. Dakota Smith, Docket # 113189

In 2020, Defendant was arrested and charged by felony complaint with Predatory Sexual Assault Against a Child, Rape in the First Degree, Rape in the Second Degree, Criminal Sexual Act in the Second Degree. Defendant waived indictment and agreed to be prosecuted by a Superior Court Information with the three lesser charges.  The Third Department reversed, finding that the Superior Court Information was jurisdictionally defective. 

CPL § 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by [SCI] when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment.”  Here, Defendant was charged with a Class A-II felony of Predatory Sexual Assault Against a Child.  The waiver of indictment encompassed this charge and, thus, was expressly prohibited under CPL § 195.10 and is invalid, rendering the resulting procedure employed to procure defendant’s guilty plea unauthorized.

Reversed and remanded.

CLICK TO READ People v. Earl Berry, Docket # 112891

Defendant was charged in a felony complaint with Failure to Register as a Sex Offender.  He agreed to waive indictment and pled guilty to a Superior Court Information charging him with the same offense.  During that appearance, a written waiver of indictment bearing a different date, signed by defendant and defense counsel, was presented to County Court.

The People conceded that the waiver was invalid because the waiver must be signed in open court in the presence of counsel.  The date on the waiver was dated two days prior to the actual plea.

Plea vacated, reversed and remanded.

CLICK TO READ People v. Aaron M. Munise, Docket # 113121

Defendant was charged with Criminally Negligent Homicide, Reckless Driving, and Following Too Closely when he was driving a box truck at 60 miles per hour in a 55 mph zone collided with the rear of a car driven by an off-duty State Trooper.  The collision forced the trooper’s vehicle into oncoming traffic, where it was struck by an oncoming vehicle that was unable to avoid the crash.  As a result, the trooper died.

At trial, the People presented testimony of Robert Mower, a collision reconstructionist for the State Police, who opined that defendant’s inattentiveness caused the collision. He found that any braking of the box truck occurred at the time of the collision, not before it, based upon data from the vehicle and the lack of discernible tire marks. He determined from an accident log report obtained through the truck’s collision avoidance system that the box truck had decelerated from 60 miles per hour to 44 miles per hour approximately 11 seconds before the collision.  Defendant’s accident reconstruction expert, Shawn Harrington, similarly opined that the cause of the collision was defendant’s inattentiveness. He also found that in the minutes prior to the collision, defendant had reduced his speed from approximately 60 miles per hour to 45 miles per hour at the time of impact. He calculated that if the victim was driving 45 miles per hour to 55 miles per hour before he braked to turn into the barracks, his brake lights would have been illuminated for 12 to 13 seconds. He further opined that it was likely that defendant, not the collision mitigation system, initiated the brakes as the braking was the maximum amount permitted by the truck’s antilock braking system.

The Third Department reversed and dismissed for legally insufficient evidence.  The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide.  Unless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he has not committed the crime of criminally negligent homicide; his nonperception of a risk, even if death results, is not enough.

Reversed and dismissed.


CLICK TO READ People v. Jacob Stagles, Docket # KA 23-00267

Defendant was convicted of Possessing an Obscene Sexual Performance by a Child, Penal Law § 263.11.  He was 19 at the time.  As a result, he was required to register as a sex offender.  At the SORA hearing, Defendant was assessed 90 points, making him a presumptive Level Two Sex Offender.  He requested a downward departure, arguing that the scoring overestimated the risk of reoffense and danger to the public.  The court denied the motion.  The Fourth Department reversed, finding that the Defendant did establish by a preponderance of the evidence mitigating factors to justify a downward departure.  These included that he no prior criminal record, was never accused of engaging in the sexual abuse of a child or any other victim, was cooperative with the police, and readily admitted his guilt. He also was not arrested during the 2½ years between his arrest for the crime at issue and the SORA hearing. Significantly, there is no indication that defendant shared the child pornography images or video with anyone else, and he deleted the images and video “months before he was contacted by” law enforcement.  The fact that he received probation as a sentence indicates that the People considered him to be a low risk to the public.

Order reversed, Defendant adjudicated a Level One Sex Offender.


Jason Russo, Steve Gaitman, Jason L. Russo, Steven J. Gaitman, Jason Russo, Steve Gaitman attorney, Jason Russo, Steve Gaitman NY Attorney, Long Island Criminal Defense Lawyer, Long Island Criminal Defense Attorney, Suffolk County Criminal Defense Lawyer, Suffolk County Criminal Defense Attorney, Nassau County Criminal Defense Lawyer, Nassau County Criminal Defense Attorney, Gaitman & Russo, LLP, Criminal Defense lawyer, criminal defense attorney, Federal criminal defense lawyer, federal criminal appeal lawyer, New York criminal defense lawyer, New York Criminal Defense Attorney, New York Appeal Lawyer, New York Appeal Lawyers, New York Appeals Lawyer, New York Appeals Lawyers, New York criminal appeal lawyer, New York criminal appeal lawyers, New York criminal appeals lawyer, New York .criminal appeals lawyers, post conviction relief, post conviction relief lawyer, post conviction relief attorney, New York Appeal Attorney, New York Appeal Attorneys, New York Appeals Attorney, New York Appeals Attorneys, New York criminal appeal attorney, New York criminal appeal attorneys, New York criminal appeals attorney, New York criminal appeals attorneys, New York Appellate Lawyer, New York Appellate Lawyers, New York Appellate Lawyer, New York Appellate Lawyers, New York criminal appellate lawyer, New York criminal appellate lawyers, New York criminal appellate lawyer, New York criminal appellate lawyers, post conviction relief, post conviction relief lawyer, post conviction relief attorney, New York Appellate Attorney, New York Appellate Attorneys, New York Appellate Attorney, New York Appellate Attorneys, New York criminal appellate attorney, New York criminal appellate attorneys, New York criminal appellate attorney, New York criminal appellate attorneys,




Gaitman & Russo, LLP - Logo



Share this post:

Latest Posts
Skip to content