Introduction

People v. Brown, 2025 NY Slip Op 06409 (4th Dept), is a significant Appellate Division decision at the intersection of two modern pressure points in criminal procedure:

• The scope and particularity required for cell phone search warrants in the digital age, and how errors in such warrants are treated on appeal; and
• The constitutional and statutory right of a defendant to be personally present at sentencing, even in the context of emergency measures enabling virtual court appearances during the COVID‑19 pandemic.

The defendant, Harold E. Brown, was convicted in Oneida County Court of:

• Criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1]) by jury verdict (possession of a narcotic drug with intent to sell), and
• Unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25) and resisting arrest (Penal Law § 205.30) by guilty plea.

On appeal, Brown challenged:

1. The denial of his motion to suppress evidence derived from search warrants for two cell phones seized from him upon arrest (particularly text-message screenshots indicating narcotics sales);
2. The admission of the amount of cash found on him at arrest;
3. Alleged prosecutorial misconduct during summation; and
4. The legality of his being sentenced by electronic (virtual) appearance over his objection.

The Fourth Department majority affirmed the conviction but vacated the sentence, holding that Brown was improperly sentenced via electronic appearance without his consent. At the same time, the court declined to suppress the cell phone evidence, treating any assumed error in the warrants as harmless in light of overwhelming non-digital evidence of guilt.

Two Justices dissented in part, taking a much stricter view of digital-privacy protections. They would have found the warrants facially unconstitutional, rejected severability, refused to apply harmless-error analysis, and ordered a new trial on the drug-possession-with-intent-to-sell count.

Summary of the Opinion

Disposition

The Appellate Division, Fourth Department:

• Modified the judgment by vacating the sentence, and
• Affirmed the judgment in all other respects,

and remitted the case to County Court for resentencing at which Brown must be allowed to appear in person.

Key Holdings of the Majority

1. Cell phone search warrants and particularity:
   • To the extent Brown argued that the warrants were defective for failing to identify a specific crime, the issue was unpreserved (CPL 470.05[2]) because he did not raise that ground in County Court and the court did not decide it.
   • As to the preserved argument—lack of temporal limitation and overbreadth—the court assumed arguendo both that the warrants were overbroad and that the trial court erred in “narrowing” them under the doctrine of severability, but held that any error was harmless. The remaining evidence of intent to sell was overwhelming and there was no reasonable possibility that the cell phone evidence affected the verdict (citing People v. Crimmins, 36 NY2d 230 [1975]).
2. Cash evidence and prosecutorial misconduct:
   • The claim that the court erred by admitting the amount of cash seized was unpreserved for lack of objection.
   • The claim of prosecutorial misconduct in summation was likewise unpreserved, and the court declined discretionary review in the interest of justice.
3. Weight of the evidence:
   • Under the Danielson/Bleakley standard, the verdict on the “intent to sell” element of Penal Law § 220.16(1) was not against the weight of the evidence. The jury was entitled to credit prosecution witnesses over the defense witness.
4. Right to be present at sentencing and virtual appearances:
   • Defendants have a fundamental right to be present at sentencing absent a valid waiver (citing People v. Estremera, 30 NY3d 268 [2017]; People v. Rossborough, 27 NY3d 485 [2016]).
   • During COVID‑19, Executive Orders 202.1 and 202.76 temporarily allowed electronic appearances at sentencing, but only where the defendant consented.
   • Here, the record showed that Brown refused to consent to a virtual appearance and requested to be physically present. Imposing sentence by video over his objection was error requiring vacatur of the sentence and remittal for resentencing (citing People v. Perkins, 162 AD3d 1641 [4th Dept 2018]; cf. People v. Lawhorn, 206 AD3d 1630 [4th Dept 2022]).

The Partial Dissent

Justices Bannister and DelConte dissented in part. They agreed with the majority on all issues except the cell phone searches and their harmlessness. They would have:

• Found that Brown properly preserved his particularity arguments;
• Declared the cell phone warrants unconstitutionally overbroad because they authorized examination of “any and all stored memory” without:
  • Reference to any particular crime, or
  • Any temporal limitation;
• Held that the warrants were “wholly invalid” and not subject to severability, so that their terms could not be rewritten by the court to impose date restrictions;
• Concluded that the phone-derived text messages were crucial proof of intent to sell, making the error not harmless;
• Reversed the conviction for criminal possession of a controlled substance in the third degree, granted suppression of all evidence derived from the cell phone warrants, and ordered a new trial on that count.

Precedents and Authorities Cited

A. Cell Phone Searches and Particularity

The opinion—especially the dissent—situates Brown in a growing body of New York and federal jurisprudence recognizing cell phones as repositories of highly personal information.

1. Riley v. California, 573 US 373 (2014)

The United States Supreme Court in Riley held that police generally must obtain a warrant to search a cell phone seized incident to arrest, emphasizing that modern phones contain:

“The sum of an individual’s private life.”

Brown’s dissent directly cites Riley, underscoring the idea that a cell phone is akin to (or more intrusive than) a home in terms of the privacy it implicates.

2. New York Appellate Decisions on Cell Phone Warrant Particularity

The dissent relies heavily on recent Fourth Department precedent elaborating a strict particularity requirement for cell phone warrants:

• People v. Conley, 234 AD3d 1363 (4th Dept 2025) – Quoted for the proposition that a “person's cell phone now contains at least as much personal and private information as their home and, thus, indiscriminate searches of cell phones cannot be permitted.”
• People v. Ozkaynak, 217 AD3d 1376 (4th Dept 2023), lv denied 40 NY3d 998 (2023) – Identified as a key cell phone warrant case; the dissent uses it to illustrate when a warrant’s lack of limitations renders it constitutionally overbroad.
• People v. Thompson, 178 AD3d 457 (1st Dept 2019) and People v. Melamed, 178 AD3d 1079 (2d Dept 2019) – Both cited as examples where cell phone warrants authorizing broad searches (“any and all” data) without crime-related or temporal limitations have been found invalid.

3. Particularity Requirement – Wiggins and Saeli

Two Fourth Department cases are central to the dissent’s analysis:

• People v. Wiggins, 229 AD3d 1095 (4th Dept 2024) – Quoted for two core principles:
  • A warrant must be “specific enough to leave no discretion to the executing officer.”
  • Where an application/affidavit is not expressly incorporated into the warrant, its content cannot cure a facially invalid warrant.
• People v. Saeli (appeal No. 1), 219 AD3d 1122 (4th Dept 2023) – Articulates a three-part particularity test specifically for cell phone warrants:
  1. Identify the specific offense for which probable cause exists;
  2. Describe the place to be searched (i.e., the particular device(s)); and
  3. Specify the items to be seized by their relation to the designated crimes.

In Brown, the dissent applies this framework and finds the warrants wanting: they allegedly authorized searching “any and all stored memory” without identifying an offense or relating the items sought to any designated crime, and without a temporal limit.

4. Doctrine of Severability – People v. Brown, 96 NY2d 80 (2001)

The 2001 Court of Appeals decision in People v. Brown (different defendant, same case name) established New York’s modern rule on severability of search warrants:

“[W]hen a search warrant is partially but not wholly invalid, only the fruits of the invalid portion need be suppressed.” (96 NY2d at 85.)

That decision allows courts to “sever” the invalid portions of a warrant where they are reasonably distinguishable, without suppressing evidence seized under the valid portions.

In the present Brown:

• The County Court invoked severability by narrowing the warrant temporally (to an eight-hour period surrounding the arrest date).
• The majority on appeal chose not to definitively decide whether that was proper, assuming arguendo that it was erroneous but harmless.
• The dissent, however, insists that the warrants were “wholly invalid” for lack of particularity and therefore not severable; the trial court could not rewrite them by inserting new date restrictions.

B. Harmless Error and Appellate Review

1. The Governing Standard – People v. Crimmins, 36 NY2d 230 (1975)

Crimmins is the foundational New York authority on harmless error. In essence:

• For non-constitutional errors, reversal is not required where there is no significant probability that the error contributed to the conviction.
• For constitutional errors, the People must show that there is no reasonable possibility that the error might have contributed to the verdict.

The Brown majority applied Crimmins’ constitutional harmless-error standard (via citations to Bloom and Farmer) by:

• Assuming the warrants were invalid and/or improperly severed, and
• Concluding that the remaining evidence of Brown’s intent to sell was so overwhelming that the phone evidence constituted harmless error.

2. Fourth Department Harmless-Error Cases Cited by the Majority

• People v. Bloom, 241 AD2d 975 (4th Dept 1997), lv denied 90 NY2d 938 (1997) and People v. Farmer, 198 AD2d 805 (4th Dept 1993), lv denied 83 NY2d 804 (1994) – Used to support the proposition that even where a warrant is overbroad, appellate courts may affirm if the remaining proof of guilt is overwhelming and there is no reasonable possibility that the tainted evidence influenced the verdict.

3. Harmless Error and Digital Evidence – Dissent’s Authorities

The dissent invokes several cases emphasizing limits on harmless-error doctrine where contested evidence is central to the disputed element:

• People v. Coffie, 192 AD3d 1641 (4th Dept 2021), lv denied 37 NY3d 963 (2021) and People v. DeJesus, 206 AD3d 1554 (4th Dept 2022) – Cited for the proposition that where the evidence is not overwhelming, suppression errors cannot be deemed harmless.
• People v. J.L., 36 NY3d 112 (2020) – A Court of Appeals case reinforcing that the harmless-error doctrine cannot be used if the remaining evidence, viewed without the tainted proof, is not strong enough to remove reasonable doubt about guilt.
• People v. Huntsman, 96 AD3d 1390 (4th Dept 2012), quoting People v. Douglas, 4 NY3d 777 (2005) – Highlighting that even where evidence might be described as strong, the test asks whether there is no reasonable possibility that the error affected the verdict.

The dissent uses these cases to argue that text messages asserting Brown’s active selling on the date in question were too central to the “intent to sell” element to be dismissed as harmless.

C. Right to be Present at Sentencing and Virtual Proceedings

On sentencing, the court relies on a line of cases recognizing the defendant’s fundamental right to be present at all material stages, including sentencing:

• People v. Rossborough, 27 NY3d 485 (2016) – Recognizes that a defendant has a fundamental right to be personally present at sentencing, subject to waiver.
• People v. Estremera, 30 NY3d 268 (2017) – Reaffirms Rossborough and emphasizes that absent a valid waiver, sentencing in the defendant’s absence is reversible error.

The Fourth Department’s own precedents also frame the analysis:

• People v. Perkins, 162 AD3d 1641 (4th Dept 2018) – Condemns sentencing a defendant via remote appearance without a knowing, voluntary, and intelligent waiver of the right to be physically present.
• People v. Lawhorn, 206 AD3d 1630 (4th Dept 2022), lv denied 38 NY3d 1151 (2022) – Cited by comparison; suggests that when there is an adequate waiver or appropriate consent, remote proceedings may be permissible.

Executive Orders in the COVID‑19 Context

In response to COVID‑19, the Governor issued:

• Executive Order 202.1 and
• Executive Order 202.76.

As summarized in the opinion, these orders:

• Suspended certain prohibitions on electronic court appearances for sentencing, and
• Permitted sentencing by electronic means only if the defendant consented.

Brown therefore clarifies that such emergency authorizations do not override the fundamental right to be present; they merely allow that right to be validly waived in favor of a virtual appearance.

D. Preservation, Weight-of-Evidence Review, and Other Points

The opinion also draws on familiar New York precedents on preservation and appellate review:

• CPL 470.05(2) – Governs preservation: an issue is preserved only if raised in a manner that alerts the trial court to the specific legal claim and gives an opportunity to correct it.
• People v. Samuel, 137 AD3d 1691 (4th Dept 2016) and People v. Navarro, 158 AD3d 1242 (4th Dept 2018), lv denied 31 NY3d 1120 (2018) – Relied on by the majority to support the conclusion that Brown did not preserve his “failure to specify an offense” challenge to the warrants.
• People v. DuBois, 203 AD3d 1621 (4th Dept 2022), lv denied 38 NY3d 1032 (2022) – Illustrates preservation rules regarding evidentiary objections.
• People v. Reynolds, 211 AD3d 1493 (4th Dept 2022), lv denied 39 NY3d 1079 (2023) and People v. Miller, 115 AD3d 1302 (4th Dept 2014), lv denied 23 NY3d 1040 (2014) – Used to show that failure to object during summation generally forfeits claims of prosecutorial misconduct.
• People v. Danielson, 9 NY3d 342 (2007) and People v. Bleakley, 69 NY2d 490 (1987) – Establish the two-step analytical framework for weight-of-evidence review.
• People v. Perkins, 229 AD3d 1223 (4th Dept 2024), lv denied 42 NY3d 1021 (2024), People v. McPherson, 213 AD3d 1261 (4th Dept 2023), lv denied 39 NY3d 1112 (2023), and People v. Tetro, 181 AD3d 1286 (4th Dept 2020), lv denied 35 NY3d 1070 (2020) – Illustrate deference to jury credibility determinations on weight review.

Legal Reasoning in Detail

A. The Cell Phone Warrants and Particularity

1. Majority: Unpreserved Offense-Specification Argument

Brown argued on appeal that the warrants lacked sufficient particularity because:

1. They did not reference a specific crime; and
2. They were not temporally limited.

The majority drew a preservation line between these arguments:

• Failure to reference a specific crime: Unpreserved. Brown’s motion below did not specifically attack the warrants for failure to identify an offense, and the County Court did not rule on that basis.
• Lack of temporal limitation: Preserved. This argument had been raised and decided.

This narrow reading of the omnibus motion contrasts with the dissent’s more generous interpretation, which treats Brown’s assertion that the warrants “fail[ed] to contain any objective standards to guide the executing officers” as sufficient to encompass both offense and date limitations. The disagreement illustrates how preservation doctrine can itself be outcome-determinative: if the broader particularity argument is deemed preserved, appellate courts must engage the full constitutional analysis rather than defaulting to arguendo assumptions and harmless-error review.

2. Majority: Assuming Invalidity but Applying Harmless Error

Regarding the lack of temporal limitation and the trial court’s use of severability, the majority deliberately sidestepped definitive constitutional rulings:

“Even assuming, arguendo, that the omission of date restrictions rendered the warrants overbroad and lacking sufficient particularity, and further assuming, arguendo, that the court erred in applying the doctrine of severability … we conclude that the error is harmless…”

In other words, the court:

• Did not decide whether the warrants were actually unconstitutional; and
• Did not decide whether severability can be used to insert temporal limits into overbroad digital warrants.

Instead, it moved directly to harmless-error analysis. This is a classic judicial strategy when an appellate court can affirm without crystallizing a contested point of constitutional law.

B. The Harmless-Error Analysis and the “Overwhelming Evidence” of Intent to Sell

1. The Majority’s Reconstruction of the Case Without Cell Phone Evidence

The majority examined whether the remaining evidence—excluding all cell phone-derived material—was so strong that the improperly admitted evidence could not reasonably have influenced the jury. It emphasized:

• Brown was seen engaging in a hand-to-hand sale of narcotics.
• He immediately left the scene and led multiple police cars on an extended high-speed chase through city streets.
• He crashed his vehicle into three civilian vehicles, then fled on foot.
• He was apprehended with:
  • Two cell phones,
  • Narcotics, and
  • A large amount of cash.
• His own witness testified that he was unemployed at the time.
• He possessed no paraphernalia suggesting that the narcotics were for personal use.

From these facts, the majority concluded that even without the text messages, the evidence overwhelmingly established an intent to sell (Penal Law § 220.16[1]). This satisfied the Crimmins standard that there be “no reasonable possibility that admission of the fruits of the [overbroad search warrants] contributed to the conviction.”

2. Dissent: The Text Messages Were Central to Intent to Sell

The dissent’s factual and legal lens is narrower and more focused on the element in actual dispute: intent to sell, not mere possession. It notes:

• Brown had only a small quantity of narcotics at the time of arrest.
• Aside from the cell phone evidence, the People’s case on intent to sell rested on:
  • The two cell phones;
  • $2,301 in cash; and
  • The absence of personal-use paraphernalia.
• The cell phone evidence—text messages—purportedly showed Brown selling drugs on the date of arrest, according to the testifying officer.

The dissent stresses that without the messages, there was no direct evidence Brown was a seller rather than a buyer with cash and a small amount of narcotics. In such circumstances, the evidence is not “overwhelming,” and there is at least a reasonable possibility that the texts influenced the jury’s verdict on intent to sell.

3. Competing Visions of Harmless Error in Digital-Search Cases

The split in Brown reflects a deeper tension in applying harmless error to digital search issues:

• The majority adopts a holistic view: when the narrative of criminality is strong (hand-to-hand sale, pursuit, crash, flight, cash, unemployment, no paraphernalia), supplemental digital proof is considered marginal.
• The dissent emphasizes element-specific proof: where the contested element is intent to sell, and the text messages speak directly to that element, their improper admission cannot be lightly discounted as harmless.

This debate will be central in future litigation over cell phone warrants: if courts routinely find errors harmless, the incentive to narrowly tailor digital warrants—and to litigate their validity on appeal—may be diminished.

C. Doctrine of Severability vs. “Rewriting” a Warrant

County Court attempted to “save” the warrants by invoking the doctrine of severability, effectively reading them as limited to an eight-hour period around the arrest date. The key question is what severability permits:

1. What Severability Traditionally Allows

Under People v. Brown, 96 NY2d 80 (2001), severability allows courts to:

• Excise invalid portions of a warrant (e.g., authorization to search areas or seize items for which probable cause is lacking),
• While preserving the valid portions where:
  • The valid and invalid parts are distinguishable, and
  • The warrant is not “wholly invalid.”

2. Dissent’s View: “Wholly Invalid” Warrants Cannot Be Cured

The dissent characterizes the cell phone warrants here as wholly invalid because:

• They authorized a search of “any and all stored memory” on the phones;
• They did not identify a specific crime;
• They did not limit the search temporally; and
• They did not tie categories of data to designated offenses.

Given these defects, the dissent concludes severability cannot be used as a vehicle for rewriting the warrant by adding missing limitations:

“The search warrants here were wholly invalid inasmuch as they lacked sufficient particularity … and the court thus erred by rewriting them.”

3. Majority’s Approach: Avoidance, Not Approval

Notably, the majority neither endorses nor rejects this use of severability. By resolving the appeal through harmless error, it leaves unresolved:

• Whether a court may retroactively impose temporal limits on an otherwise overbroad digital warrant under severability; and
• Whether a warrant that fails to identify an offense or tie items to crimes can ever be “partially” valid in the digital context.

The law on this precise question remains unsettled within the Fourth Department, though the dissent’s reasoning aligns with prior strict-particularity decisions such as Wiggins and Saeli.

D. The Right to Be Present at Sentencing and Virtual Court in a Pandemic

1. The Fundamental Right

The Court of Appeals has long treated a defendant’s presence at sentencing as a fundamental right. A sentencing hearing is a critical stage: it is where the defendant may speak, contest factual assertions in a pre-sentence report, and present mitigating information.

In Rossborough and Estremera, the Court reaffirmed that:

• Absent a valid waiver, the defendant must be physically present;
• A waiver must be knowing, voluntary, and intelligent.

2. Effect of COVID‑Era Executive Orders

The Executive Orders cited in Brown did not erase the right to presence; rather, they:

• Suspended prohibitions on the use of electronic means for certain proceedings, and
• Conditioned virtual sentencing on the defendant’s consent.

Thus, the legal structure during the pandemic was:

1. The defendant has a baseline right to be physically present at sentencing;
2. The Executive Orders allow that right to be waived in favor of a video appearance, but only if the defendant agrees;
3. Without consent, the default constitutional and statutory rule remains: the defendant must be present.

3. Application in Brown

In Brown’s case:

• The record “establishes that defendant refused to consent to an electronic appearance and requested that he be personally present for sentencing.”
• Despite that refusal, the court sentenced him virtually.
• The People conceded error on appeal.
• The Fourth Department therefore:
  • Vacated the sentence; and
  • Remitted for resentencing, explicitly directing that Brown must be permitted to appear.

This holding is a clear reaffirmation that even in emergency conditions, courts must honor a defendant’s choice not to waive the right to physical presence at sentencing.

E. Weight-of-the-Evidence Review

Although less controversial than the suppression and sentencing issues, the opinion’s weight-of-evidence discussion is important for understanding how the court evaluated the case as a whole.

1. The Danielson/Bleakley Framework

Under Bleakley and Danielson, the Appellate Division conducts a two-step review:

1. View the evidence in a neutral light (not most favorable to the People), considering the elements as charged to the jury.
2. Determine whether the jury “failed to give the evidence the weight it should be accorded.” Even if a different verdict would not have been unreasonable, the court must decide whether the jury’s resolution of conflicts and credibility issues was irrational or plainly wrong.

2. Application in Brown

The Fourth Department:

• Accepted that a different verdict (likely a lesser possession offense) would not have been unreasonable.
• Nonetheless concluded that the jury was entitled to:
  • Credit the prosecution witnesses who described a hand-to-hand drug sale and high-speed flight;
  • Draw inferences from the amount of cash, the lack of employment, and the absence of personal-use indicators.
• Found no reason to disturb the verdict based on credibility determinations.

This reinforces the high deference appellate courts give to juries on factual determinations, especially where the main disputes hinge on credibility rather than objective physical evidence.

Complex Concepts Simplified

1. Particularity and Overbreadth in Search Warrants

The Fourth Amendment (and its New York analog) requires that a search warrant:

• Describe the place to be searched (e.g., a specific phone); and
• Describe the things to be seized with sufficient precision so that officers have no discretion to conduct a general rummaging.

In the cell phone context, this generally means:

• Identifying the crime(s) at issue (e.g., drug sales on a specific date);
• Limiting the search to data types and time periods related to those crimes (e.g., text messages between certain dates); and
• Avoiding authorization to search “any and all data” for no particular reason.

A warrant that is too broad—authorizing essentially unlimited access to all data—may be deemed “overbroad” and unconstitutional, leading to suppression of evidence.

2. Doctrine of Severability

Severability allows courts to “cut out” the bad parts of a warrant while keeping the good parts. For example:

• If a warrant authorizes searching:
  • For stolen jewelry (backed by probable cause); and
  • For bank records (without probable cause);
  a court may suppress evidence related to bank records but allow admission of the jewelry evidence.

However, if the warrant is so fundamentally flawed that it lacks any legitimate basis—especially for digital devices where the entire authorization is general and unconstrained—some courts, like the Brown dissent, view it as “wholly invalid,” not subject to severance.

3. Harmless Error

Not every legal error at trial requires reversal. Under harmless-error doctrine:

• If the error violates a constitutional right (e.g., illegal search and seizure):
  • The conviction can be upheld if the court is convinced there is no reasonable possibility the error influenced the verdict.
• If the evidence of guilt is “overwhelming,” it is more likely that an error will be found harmless.

Harmless-error analysis thus asks: would the jury almost certainly have convicted even without the tainted evidence?

4. Preservation of Error (CPL 470.05[2])

To challenge an issue on appeal, a defendant usually must:

• Raise the specific legal objection in the trial court; and
• Obtain a ruling on that ground.

A general objection (“this search was unreasonable”) often does not preserve a specific argument (“the warrant failed to identify any crime”). This strict preservation rule is why the majority in Brown declined to consider part of the particularity challenge.

5. Right to Be Present at Sentencing and Virtual Proceedings

A defendant’s right to be present at sentencing includes:

• Being physically in the courtroom;
• Hearing the court’s findings and sentence;
• Speaking on his own behalf (allocution).

Virtual appearances are permissible only if:

• The law allows them (as during COVID via Executive Orders); and
• The defendant knowingly, voluntarily, and intelligently waives the right to be physically present.

If a defendant explicitly refuses to consent to video sentencing, proceeding anyway is reversible error.

Impact and Broader Significance

1. Digital Privacy and Cell Phone Warrants

People v. Brown does not create a definitive new rule on digital search warrant particularity, because the majority avoids an express holding. However, its significance lies in two related areas:

• Harmless-error application to digital searches: The majority’s willingness to treat even potentially unconstitutional cell phone searches as harmless if other evidence is “overwhelming” gives prosecutors a powerful defense of convictions obtained with overbroad digital warrants.
• Growing intra-departmental tension: The dissent, building on Conley, Wiggins, Saeli, and Ozkaynak, pushes for strict particularity and warns against “indiscriminate searches” of cell phones. This articulation will likely be cited by defense counsel in future challenges and may influence the Court of Appeals if and when it revisits digital warrant standards.

2. Trial Practice and Appellate Strategy

The opinion underscores four practical lessons:

1. Specificity in suppression motions: Defense counsel must clearly articulate each specific constitutional defect (offense specificity, temporal limits, data categories) to preserve them for appeal.
2. Objections at trial: Objections to evidence (like the amount of cash) and to prosecutorial summation must be lodged when the issue arises, or the claim may be forfeited.
3. Harmless-error framing: Both sides on appeal should prepare competing reconstructions of the record “minus” the tainted evidence, showing how strong—or weak—the remaining proof is on each element.
4. Strategic use of dissenting opinions: Although not binding, the dissent in Brown offers a roadmap for arguing that overbroad digital warrants are “wholly invalid” and that their fruits are rarely harmless when central elements (such as intent to sell) are at stake.

3. Sentencing Practice and Virtual Appearances

On sentencing, Brown sends a clear message:

• Virtual sentencing is allowed only with the defendant’s informed consent.
• Refusal to consent must be respected, even in the face of logistical or public-health challenges.
• Violation of this rule requires vacatur of the sentence and resentencing with the defendant present.

This precedent will continue to guide New York trial courts as they adapt to evolving technologies and post-pandemic practices, ensuring that efficiency does not override fundamental defendant rights.

Conclusion

People v. Brown is most immediately notable for its firm enforcement of the defendant’s right to be present at sentencing: even under COVID‑era executive orders, sentencing by video cannot proceed over a defendant’s objection. On that point, the case is a straightforward yet important reaffirmation of established New York law, with concrete remedial consequences—vacatur and remittal for resentencing.

On the digital-search front, the decision is more nuanced. The majority, by assuming error and invoking harmless-error doctrine, preserves the conviction without issuing a definitive ruling on the constitutionality of the cell phone warrants or the propriety of using severability to retrofit them with temporal limits. The dissent, in contrast, advances a strong view that such overbroad, offense-unspecified, unlimited-time warrants are “wholly invalid,” incapable of salvage under severability, and that their fruits often cannot be treated as harmless where they bear directly on contested elements like intent to sell.

Together, the majority and dissenting opinions in Brown mark an important chapter in New York’s ongoing effort to balance effective law enforcement, robust digital privacy, and fundamental procedural rights in the criminal justice system. Future appellate decisions—particularly from the Court of Appeals—will likely build on the tensions exposed here, especially in the fast-evolving domain of cell phone search warrants.