People v. Terry (2025): Business-Record Admissibility of Probation “Client Contact Lists” and the Continuing Rejection of Overbroad Appeal-Waiver Forms

Introduction

The Third Department’s decision in People v. Terry, 238 A.D.3d 1387 (3d Dept 2025), addresses three core issues that frequently arise in criminal practice:

1. Whether a written appeal-waiver form, coupled with a perfunctory oral colloquy, suffices to foreclose appellate review.
2. The proper exercise of a sentencing court’s discretion in granting or denying Youthful Offender (“YO”) status for an eligible defendant convicted of sexual abuse.
3. The evidentiary standards governing probation-violation hearings, specifically the admissibility of the probation department’s “client contact list” as a business record and the permissible scope of a probation officer’s testimony.

Jordan Terry, then 17, pleaded guilty to first-degree sexual abuse of a 13-year-old. He received time served and ten years’ probation; YO determination was deferred to sentencing but ultimately denied. Subsequent arrests for harassment and resisting arrest led to a violation petition, revocation of probation, and a five-year prison sentence with ten years’ post-release supervision (“PRS”). Terry appealed both the original conviction (challenging the YO denial and the waiver of appeal) and the revocation sentence.

Summary of the Judgment

The Appellate Division affirmed both judgments. Key holdings include:

• Invalid Appeal Waiver: The waiver form used was identical to the one struck down in People v. Pike, and the trial court’s oral explanation was inadequate. Therefore, Terry’s substantive appellate claims were not barred.
• Denial of Youthful Offender Status Upheld: After balancing mitigating and aggravating factors, the trial court acted within its discretion by refusing YO treatment.
• Probation Violation Established: The People met the preponderance-of-evidence standard using live testimony, police video, and the probation “client contact list.” Admitting that list under the business-records exception was proper; hearsay was permissible when corroborated by non-hearsay proof.
• Sentence Not Excessive: Given the underlying forcible sexual abuse and repeated non-compliance, a five-year term plus PRS was not unduly harsh.

Analysis

1. Precedents Cited and Their Influence

• People v. Pike, 226 A.D.3d 1216 (2024); People v. Lester, 232 A.D.3d 1056 (2024); People v. Moore, 230 A.D.3d 1470 (2024)
  – Collectively hold that the same “boiler-plate” waiver form is overbroad and misleading, invalid unless cured by a thorough colloquy. Terry’s form was identical; thus, the court followed its own precedent and found the waiver invalid.
• People v. Lunt, 232 A.D.3d 1054 (2024); People v. Wimberly, 228 A.D.3d 1177 (2024); People v. Cha-Narion D., 232 A.D.3d 1131 (2024); People v. Vanderhorst, 235 A.D.3d 1089 (2025)
  – Provide the modern framework for YO determinations. The factors enumerated in these cases guided County Court and, on review, justified denial of YO status given the forcible nature of the offense and risk assessment.
• People v. O’Brien, 219 A.D.3d 1643 (2023); People v. Hunter, 62 A.D.3d 1207 (2009)
  – Establish that (i) probation-violation proof need only satisfy a preponderance standard, (ii) hearsay is admissible but cannot stand alone, and (iii) business records may be admitted under CPLR 4518. The “client contact list” in Terry fit squarely within this precedent.
• People v. Kane, 232 A.D.3d 1064 (2024)
  – Illustrates the “opening-the-door” doctrine applied to redirect examination. Once the defense probed the officer’s mental-health expertise, the prosecution could clarify the same area.

2. Legal Reasoning Employed by the Court

The court’s opinion is essentially tripartite:

1. Appeal Waiver: Applying Pike, the written waiver’s expansive language (purporting to relinquish rights broader than permissible) and the judge’s cursory colloquy failed to convey that some appellate review survived. An invalid waiver restored Terry’s ability to contest the YO ruling and evidentiary issues.
2. Youthful Offender Analysis: Under CPL §720.20 and robust Third-Department precedent, the court weighed mitigating factors (age, no prior record, mental-health issues, remorse) against aggravating factors (forcible sexual assault, multiple acts, victim impact, moderate-to-high risk of recidivism, probation’s adverse recommendation). Discretion is broad; appellate courts rarely disturb it absent abuse. Here, the “weighty” aggravators tipped the balance.
3. Probation-Violation Evidence:
   • Standard of Proof: Preponderance (CPL 410.70).
   • Admissibility of Client Contact List: The document was:
     1. Maintained in the ordinary course of the probation department’s business activities;
     2. Made contemporaneously by personnel with a business duty to be accurate; and
     3. Offered through a custodian with personal knowledge (the officer).
     This satisfied CPLR 4518(a). Though hearsay, it fell under the business-records exception and was corroborated by live testimony and video evidence. Therefore, the violation finding did not rest on hearsay alone.
   • Redirect Testimony: Because defense counsel elicited testimony regarding mental-health training to suggest that Terry’s disorders caused non-compliance, the prosecution could elicit limited testimony that probationers with similar diagnoses can still comply, countering the implication of incapacity. This was neither expert testimony nor unduly prejudicial.

3. Anticipated Impact

• Probation Hearings State-Wide: Probation departments frequently keep digital logs of contacts; Terry cements their status as admissible business records if foundational requirements are met, minimizing live-witness burdens and promoting administrative efficiency.
• Drafting Appeal Waivers: Defense counsel and prosecutors must revise written waivers to avoid “Pike-type” overbreadth. Trial courts must deliver tailored colloquies making clear which rights survive.
• YO Discretion: The case underscores that forcible sexual crimes with adolescent victims face steep hurdles to YO relief, even for first-time youthful offenders with mental-health concerns.
• Mental-Health Arguments: The decision delineates limits: a defendant’s mental health may mitigate culpability, but non-compliance with probation will not automatically be excused absent a showing of incapacity.

Complex Concepts Simplified

• Youthful Offender (“YO”) status: A statutory mechanism (CPL §720.20) allowing certain offenders aged 16–18 to avoid a permanent felony record if the court, “in the interest of justice,” so decides. It does not erase guilt but replaces the conviction with a confidential adjudication.
• Appeal Waiver: A defendant may voluntarily give up some—but not all—rights to challenge the conviction or sentence. The waiver must be knowing, voluntary, and limited; it cannot bar issues like the legality of the sentence or jurisdictional defects.
• Business-Records Exception (CPLR 4518): Normally, out-of-court statements (“hearsay”) are inadmissible. But records kept in the regular course of business, created near the time of the event by someone with a duty to record accurately, are reliable enough to be admitted without the usual hearsay problems.
• Probation-Violation Standard: Unlike a criminal trial’s “beyond a reasonable doubt,” the prosecution must only show “more likely than not” that the defendant violated probation terms.
• “Opening the Door”: When one party introduces a topic on cross-examination, the other party may explore the same subject on redirect, even if it would otherwise be beyond the permissible scope.

Conclusion

People v. Terry firmly contributes to New York jurisprudence in two respects. First, it extends the Pike line, warning courts that appeal-waiver defects are not trivial. Second, it offers a practical evidentiary ruling: probation “client contact lists” qualify as admissible business records and, when paired with non-hearsay proof, can sustain revocation. Alongside a meticulous YO analysis, the decision signals a stricter stance toward youthful sexual offenders who reoffend while on probation. Practitioners should adjust waiver practices, prepare robust YO submissions, and ensure that probation documentation satisfies business-record foundations to survive appellate scrutiny.