People v. Reinfurt: Marijuana Legalization Does Not Retroactively Nullify Prior Out‑of‑State Marijuana Convictions for Second Felony Offender Status; Attempted Felony Assault under PL 120.10(4) Is Not Cognizable

Introduction

People v. Reinfurt is a Third Department decision addressing a violent assault in a Schenectady apartment, a jury that was referred to by numbers during voir dire, and a suite of appellate challenges spanning sufficiency/weight of the evidence, evidentiary rulings, justification charges, ineffective assistance, and second felony offender sentencing. The jury convicted the defendant of assault in the first degree (PL 120.10[1]), unlawful imprisonment in the first degree (PL 135.10), criminal possession of a weapon in the third degree (PL 265.02[1]), and—on lesser-included theories—unlawful imprisonment in the second degree (PL 135.05) and attempted assault in the first degree on a felony-assault theory (PL 110.00/120.10[4]).

On appeal, the court issued two headline holdings: (1) attempted felony assault under Penal Law 120.10(4) is not a legally cognizable offense and must be reversed; and (2) for second felony offender purposes, New York looks to the law in effect at the time of the prior conviction, and at most to the time of the subsequent New York offense, not today’s law—so marijuana’s later reclassification does not retroactively invalidate an out-of-state marijuana predicate where marijuana was a controlled substance at the pertinent times.

The panel also rejected various challenges as unpreserved or meritless, including a claim that the trial court improperly empaneled an anonymous jury. Two judges concurred in part and dissented in part, urging a new trial in the interest of justice based on the anonymity procedure and advocating a more expansive view of when a robbery-justification instruction may be warranted.

Summary of the Judgment

• Convictions modified:
  • Unlawful imprisonment in the second degree vacated as a lesser included offense of unlawful imprisonment in the first degree.
  • Attempted assault in the first degree (based on PL 120.10[4]) reversed and sentence vacated because “attempted” felony assault is not a cognizable offense when the underlying subdivision imposes strict liability for an unintended result.
• All remaining convictions affirmed:
  • Legal sufficiency challenges largely unpreserved; the preserved elements—serious physical injury and weapon-possession intent—were supported by legally sufficient evidence.
  • Verdict not against the weight of the evidence; the jury reasonably rejected the defendant’s justification defense.
  • Anonymous jury complaint unpreserved; corrective action in the interest of justice declined.
  • Challenges to two prospective jurors’ impartiality denied; their confusion was clarified.
  • Admission of the complainant’s prior consistent grand jury testimony was error (did not predate motive to fabricate) but harmless.
  • Justification instructions: no charge on deadly force to prevent a robbery given the “protracted delay” after the suspected theft; proper instruction that each blow must be independently justified.
  • Ineffective assistance claims rejected under the totality-of-representation standard.
  • Second felony offender adjudication upheld: a 2014 Florida marijuana conviction qualified as a predicate because marijuana was a controlled substance under New York law both at the time of that conviction and at the time of the 2020 New York offense.
  • Sentence not unduly harsh or severe.
• Separate opinions:
  • McShan, J., concur/dissent: would order a new trial in the interest of justice due to improper anonymous jury empanelment; also cautioned against an overly narrow temporal focus in denying a robbery-justification charge.
  • Lynch, J., joined on the anonymous jury issue.

Analysis

Precedents Cited and How They Shaped the Outcome

• Attempted felony assault under PL 120.10(4) is not cognizable:
  • People v. Prescott (95 NY2d 655): where a statute imposes strict liability for an unintended result, “attempt” is not legally cognizable.
  • People v. Miller (87 NY2d 211); People v. Coleman (74 NY2d 381); People v. Campbell (72 NY2d 602): Court of Appeals decisions reinforcing that attempt liability requires intent to bring about the prohibited result; felony assault under PL 120.10(4) punishes the actual consequence (serious physical injury) of a felony, not an intended result.
  • People v. McCann (126 AD3d 1031): Third Department application—no “attempt” version of PL 120.10(4).
• Anonymous jury/preservation:
  • People v. Flores (32 NY3d 1087; aff’g 153 AD3d 182): anonymous juries are “extraordinary” and require a factual predicate and explanation to jurors to mitigate prejudice.
  • People v. Jeremiah (147 AD3d 1199): in the Third Department, anonymity is not a mode-of-proceedings error; preservation is required (developed further “in a case decided herewith,” People v. Goberdhan).
• Justification—each blow must be justified; robbery timing:
  • People v. Castillo (42 NY3d 628): even if deadly force is initially justified, the right terminates once the threat subsides; each use of deadly force must be independently justified.
  • People v. McTiernan (176 AD3d 484); People v. Patterson (176 AD3d 1637); People v. Sadler (153 AD3d 1285); People v. Robertson (53 AD3d 791), and People v. Gladman (41 NY2d 123): robbery requires that force be used “in the course of committing a larceny” and to retain property “immediately after the taking”; courts evaluate temporal and situational factors to determine immediacy.
• Second felony offender—predicate felony timing and equivalency:
  • Penal Law § 70.06(1)(b)(i): an out-of-state conviction qualifies if punishable by >1 year and is “authorized” in New York.
  • People v. Carter (173 AD2d 631); People v. Sanford (162 AD2d 560): measure predicate status by New York law in effect when the predicate was obtained.
  • People v. Walker (81 NY2d 661) (dicta): suggests evaluation in relation to New York law at the time of the subsequent crime.
  • People v. Gamlen (222 AD3d 1440): recent application—view the law “in effect at the time [the conviction] was obtained.”
  • Applied here: marijuana was a controlled substance under Public Health Law § 3306 at the time of the 2014 Florida conviction and at the time of the 2020 New York offense; therefore, the Florida conviction qualifies as a predicate under either temporal lens.
• Serious physical injury and weapon possession with intent:
  • People v. Ackerman (173 AD3d 1346): medical testimony can establish the “serious physical injury” element.
  • People v. Purvis (90 AD3d 1339): intent to use a dangerous instrument unlawfully may be inferred from the circumstances.
• Prior consistent statements:
  • People v. McClean (69 NY2d 426); People v. Gross (26 NY3d 689); People v. Johnson (176 AD3d 1392); People v. Ludwig (24 NY3d 221); People v. Rosario (17 NY3d 501): prior consistent statements are admissible only to rebut a claim of recent fabrication and only if made before the motive to fabricate arose; otherwise, their admission is error but may be harmless.

Legal Reasoning

• Lesser-Included Merger:

  The court vacated the conviction for unlawful imprisonment in the second degree because it is a lesser included offense of unlawful imprisonment in the first degree based on the same restraint (citing People v. Barber; People v. Subik; People v. Rosario). This enforces the bar on duplicative convictions for the same conduct at different degrees.

• No “Attempted” Felony Assault under PL 120.10(4):

  PL 120.10(4) (felony assault) imposes strict liability for causing serious physical injury in the course of committing a felony. Because “attempt” liability requires intent to cause the prohibited result, and felony assault penalizes an unintended consequence, there is no legally cognizable “attempt” version of that subdivision. The court reversed the attempted assault conviction and vacated the sentence accordingly.

• Evidence Sufficiency and Weight:

  As preserved, the medical testimony established that the victim suffered “serious physical injury” (open skull fracture, intracranial bleeding; would have been fatal without surgery), satisfying PL 120.10(1) and PL 135.10. Regarding weapon possession (PL 265.02[1]/265.01[2]), intent to use unlawfully was inferable from the defendant’s use of a hammer during the assault. On weight, the jury reasonably credited the victim over the defendant’s justification narrative; the convictions stood.

• Anonymous Jury Claim:

  The trial court referred to jurors by number “to avoid confusion,” and both sides voiced no objection. One prospective juror stated a first name in open court. The defendant’s anonymity challenge was unpreserved, and the panel declined interest-of-justice relief. The majority referenced its contemporaneous decision in People v. Goberdhan to explain that anonymity is not a mode-of-proceedings error in the Third Department, requiring preservation. The dissent argued a new trial was warranted, emphasizing Flores’s caution that anonymous juries are “extraordinary” and that an explanation to jurors is essential.

• Voir Dire Rulings:

  The court properly denied challenges for cause to two prospective jurors whose initial confusion about a hypothetical was clarified; neither exhibited a “serious doubt” about impartiality.

• Prior Consistent Statement Error—Harmless:

  The prosecution introduced excerpts of the complainant’s grand jury testimony to rebut defense cross-examination about not immediately reporting sexual advances. Because the prior statement did not predate any motive to fabricate, admission was improper. The error was harmless in light of the defendant’s own admissions about sexual activity, the tangential nature of the point, and the complainant’s explanation that immediate medical needs limited her initial police account.

• Justification Instructions:
  • Robbery-Based Justification: The defendant sought a deadly-force instruction to prevent a robbery (PL 35.15[2][b]). The majority held the “protracted delay” (hours) between the suspected theft and the hammer blows defeated the immediacy component of “forcible stealing” and thus did not support a robbery-based justification charge. The dissent countered that “immediately after the taking” is a fact-intensive standard (distance, elapsed time, possession, safety, pursuit) and that a jury could find the victim’s brandishing of a board to prevent resistance to retention of stolen money amounted to robbery, at least at the inception of the encounter.
  • Each Blow Must Be Independently Justified: Relying on Castillo, the court properly instructed that even if deadly force were initially justified, it must cease when the threat abates; each hammer strike had to be justified in its own right.
• Ineffective Assistance:

  Applying the “meaningful representation” standard, the court rejected claims premised on jury selection strategy, unmade objections, and merger arguments. Counsel’s actions were either strategic or unlikely to have succeeded, and the overall performance (openings/closings, cross-examination, objections, requests for lesser-included charges) was constitutionally adequate.

• Second Felony Offender—Predicate Felony Timing After Marijuana Legalization:

  The defendant argued that his 2014 Florida marijuana conviction would not be a felony under current New York law and thus should not qualify as a predicate. The court reaffirmed that predicate status is measured by New York law in effect at the time of the prior conviction (Carter; Gamlen; Sanford). Acknowledging Court of Appeals dicta in Walker suggesting evaluation “in relation to the law at the time of the subsequent crime,” the panel added that marijuana remained a controlled substance in March 2020, when the New York offense occurred. Under either temporal reference point, the Florida conviction qualified as a predicate felony. The adjudication as a second felony offender was upheld.

Impact and Practical Implications

• Predicate Felonies in the Marijuana Era:
  • Key take-away: New York’s post-2021 marijuana reforms do not retroactively strip earlier marijuana convictions—New York or out-of-state—of predicate status for second felony offender sentencing when, at the time of the prior conviction (and at least as late as the 2020 subsequent offense here), marijuana was a “controlled substance.”
  • Expect prosecutors to continue to rely on pre-MRTA marijuana convictions as predicates if the timing requirement is met. Defense counsel should scrutinize dates and statutory elements and preserve any Walker-based arguments when the subsequent New York crime occurred after marijuana’s removal from Public Health Law § 3306. The Reinfurt court did not resolve that scenario.
• Charging Decisions—Avoid “Attempted” PL 120.10(4):
  • Prosecutors should not charge, and courts should not submit, “attempted” felony assault under PL 120.10(4). If the factual theory is felony assault, the count must either be completed felony assault or be pared back to another cognizable offense.
• Anonymous Jury Preservation:
  • In the Third Department, anonymity is not a mode-of-proceedings error. Defense counsel must object contemporaneously to anonymity procedures (e.g., using numbers only, sealing names) and articulate prejudice. Trial judges should create a clear record: the factual predicate for anonymity and an on-the-record explanation to jurors to mitigate potential bias concerns (as Flores instructs).
• Justification Litigation:
  • Defense counsel seeking robbery-based justification instructions must develop a factual record addressing all “immediacy” factors (time elapsed, possession of the property, whether safety was reached, pursuit). The dissent signals that close cases should go to the jury.
  • Both sides should tailor arguments to Castillo’s “each blow” principle in cases involving multiple uses of force; a justification that may exist at the onset can evaporate mid-encounter.
• Evidence Practice—Prior Consistent Statements:
  • Proponents must show the prior statement predates the alleged motive to fabricate. Without that foundation, admission is error, albeit sometimes harmless if cumulative and if credibility is otherwise tested at trial.
• Double-Counting Lesser Included Offenses:
  • Where a jury convicts on both degrees of the same offense cluster (e.g., unlawful imprisonment first and second), the lesser should be dismissed to avoid duplicative punishment for the same restraint.

Complex Concepts Simplified

• Serious Physical Injury:

  More than mere pain; it includes injuries that create a substantial risk of death, cause serious and lasting disfigurement, or impair health or organ function. Here, an open skull fracture with intracranial bleeding—fatal absent surgery—plainly qualifies.

• Felony Assault under PL 120.10(4) vs. Attempt:

  Felony assault (subd. 4) punishes causing serious injury during the commission or attempted commission of a felony—regardless of intent to cause that injury. “Attempt” requires intent to achieve the crime’s prohibited result. You cannot “attempt” to cause an unintended result; thus, “attempted” felony assault is not a crime.

• Predicate Felony Equivalency:

  An out-of-state prior counts as a predicate if it was punishable by more than a year and would be a felony in New York. Courts compare statutory elements, and—critically—measure New York law’s classification at the relevant time(s) (at least when the prior conviction was obtained; possibly also at the time of the subsequent New York offense). Current reclassifications do not retroactively change that status in Reinfurt’s circumstances.

• Anonymous Jury:

  Referring to jurors by numbers or concealing names can risk signaling to jurors that a defendant is dangerous. New York permits such measures only in exceptional cases and after the court makes findings and explains the reasons to jurors, to avoid unfair prejudice. In the Third Department, a failure to object forfeits the claim absent interest-of-justice intervention.

• Justification—Deadly Force and “Each Blow”:

  Even when you reasonably believe deadly force is necessary (e.g., to counter deadly force or a robbery), the legal justification lasts only as long as the threat. If the threat ends, continued use of force is unlawful. Each separate strike must be justified at the moment it is delivered.

• Legal Sufficiency vs. Weight of the Evidence:

  Sufficiency asks whether any rational juror could convict on the evidence viewed most favorably to the prosecution. Weight asks whether, viewed neutrally and respecting credibility assessments, the verdict is supported by the greater weight of credible evidence. Sufficiency must be preserved by specific motions; weight review does not require preservation.

Conclusion

People v. Reinfurt offers two major clarifications. First, it reaffirms that “attempted” felony assault under Penal Law 120.10(4) is a non-crime: prosecutors and courts must avoid submitting it, and any such conviction must be vacated. Second—and more forward-looking in the wake of marijuana reform—the decision underscores that New York does not use today’s reclassification to retroactively erase prior out-of-state marijuana convictions from predicate felony calculations where marijuana remained a controlled substance at the relevant times. That temporal framing will guide sentencing courts confronting predicate challenges rooted in evolving drug laws.

The opinion also provides practical guidance: anonymous jury complaints must be preserved in the Third Department; prior consistent statements require a pre-motive foundation; robbery-based justification instructions hinge on the nuanced immediacy factors and are tempered by Castillo’s “each blow” rule; and duplicative lesser-included convictions will be vacated. Although two judges would have granted a new trial in the interest of justice based on the anonymity procedure and urged a more fact-sensitive approach to robbery-justification, the majority’s framework will likely steer trial practice on jury anonymity, justification submissions, and sentencing predicate analyses in the near term.