Preservation of Erlinger-Based Sentencing Challenges and COVID-Era Public-Trial Claims in People v. Elmore (2025)

I. Introduction

The Appellate Division, Fourth Department’s decision in People v. Elmore, 2025 NY Slip Op 06417 (Nov. 21, 2025), is a dense, procedurally focused opinion that largely affirms settled doctrine, but it does so in a way that is highly instructive for practitioners.

The case arises from two distinct criminal episodes:

A shooting in which Isaac Elmore fired multiple shots at three individuals, striking a bystander.
A later “brandishing” incident, in which he displayed a firearm and was arrested.

Following a jury trial in Onondaga County Court, Elmore was convicted of:

Attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1])
Criminal use of a firearm in the first degree (Penal Law § 265.09[1][a])
Two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[3])
Assault in the second degree (Penal Law § 120.05[2])
Resisting arrest (Penal Law § 205.30)

On appeal, Elmore raised a wide range of issues: alleged speedy trial violations tied to the People’s certificate of compliance, denial of investigative services and an adjournment, alleged denial of a public trial due to defective COVID-era livestreaming, legal sufficiency and weight-of-evidence challenges, the court’s failure to give an Allen charge, and the constitutionality of his second violent felony offender sentence in light of the U.S. Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024).

The Fourth Department unanimously affirmed, but the opinion is significant in at least three respects:

It reinforces strict preservation requirements for challenges to certificates of compliance and speedy trial readiness.
It clarifies how COVID-era public-access arrangements (remote viewing rooms) intersect with the Sixth Amendment right to a public trial, emphasizing the need for a Hinton hearing request to preserve such claims.
It signals that sentencing attacks based on Erlinger and related Apprendi jurisprudence must be preserved at sentencing, and the court declines to reach them even in the interest of justice.

This commentary examines the opinion in detail, situates it within the existing body of New York and federal law, and explains its implications for future litigation and courtroom practice.

II. Summary of the Opinion

The Fourth Department’s memorandum decision does the following:

Speedy Trial / Certificate of Compliance: Holds that Elmore’s challenge to the People’s certificate of compliance (CoC) and readiness is unpreserved because he did not move in writing to dismiss the indictment on that ground, as required by CPL 210.20(1)(g) and 210.45(1). The court declines to review the issue in the interest of justice.
Investigative Services: Affirms the denial of Elmore’s oral requests for investigative services, holding that he did not show such services were “necessary to his defense.” It also rejects a claim that the denial was the product of judicial bias, finding no showing of actual bias.
Adjournment: Upholds the trial court’s denial of an adjournment, concluding there was no abuse of discretion where the defendant failed to show that the need for adjournment was due to factors beyond his control, that the request was not a delaying tactic, or that any prejudice resulted.
Public Trial Claim (COVID-era Streaming): Holds that Elmore’s Sixth Amendment public trial claim, framed around poor audio and video quality in a remote “viewing room” used during the COVID-19 pandemic, is unpreserved because he did not request a Hinton hearing.
Legal Sufficiency (Intent to Kill): Finds Elmore’s challenge to the sufficiency of the evidence of intent to kill unpreserved because his trial order of dismissal motion was not “specifically directed” to that element. In any event, the court holds the evidence supports an inference of intent to kill when a defendant aims a loaded gun at individuals and fires multiple shots.
Weight of the Evidence: After conducting a Bleakley/Danielson-style review, the court concludes that the verdict on all counts is not against the weight of the evidence.
Allen Charge: Holds that any complaint about the trial court’s failure to give an Allen charge is unpreserved because no such charge was requested, and in any event, the instruction that was given in response to a jury note was properly “open-ended and encouraging,” not coercive.
Erlinger-Based Sentencing Challenge: Treats Elmore’s argument that Erlinger renders his second violent felony offender sentence unconstitutional as unpreserved and declines to review it in the interest of justice, citing the Court of Appeals’ decision in People v. Hernandez, 43 NY3d 591 (2025), and People v. Finkelstein, 28 NY3d 345 (2016).
Sentence Review & Residual Claims: Finds the sentence not unduly harsh or severe and rejects Elmore’s remaining contentions as not warranting modification or reversal.

The unanimous affirmance is thus heavily grounded in preservation doctrine and standard-of-review principles, rather than dramatic substantive changes in the law of firearms, assault, or attempted murder. Nonetheless, its treatment of new issues—especially the interface between Erlinger and New York’s predicate-felony sentencing regime, and public trial claims in pandemic-era courts—gives the decision broader significance.

III. Factual and Procedural Context

A. The Underlying Incidents

The opinion is concise about facts, but it establishes two discrete incidents:

The Shooting Incident. Elmore “fired a gun multiple times at three people,” and “one shot str[uck] a bystander.” These facts underlie the counts of:
- Attempted murder in the second degree
- Criminal use of a firearm in the first degree
- Assault in the second degree
- Criminal possession of a weapon in the second degree
The Brandishing Incident. On a separate date, Elmore “brandished a gun” and was arrested by police, giving rise to another count of criminal possession of a weapon in the second degree and a resisting arrest charge.

B. Procedural History

Elmore was tried before a jury in Onondaga County Court (Dougherty, J.) and convicted of all enumerated offenses. He appealed to the Fourth Department, raising a relatively broad array of procedural and constitutional claims.

Notably, the Fourth Department cites an earlier appeal involving the same defendant: People v. Elmore, 211 AD3d 1536 (4th Dept 2022), lv denied 42 NY3d 938 (2024). That earlier decision dealt with similar preservation issues surrounding speedy trial and written motion practice, and the present opinion relies upon it as a precedential anchor for the requirement of a written dismissal motion on speedy trial grounds.

IV. Detailed Analysis of the Opinion

A. Speedy Trial, Certificates of Compliance, and Preservation

1. The Defendant’s Argument

Elmore argued that the indictment should be dismissed for a speedy trial violation, contending that:

The People’s certificate of compliance was invalid; and therefore
Their statement of readiness was “illusory,” failing to stop the CPL 30.30 clock.

This argument is emblematic of post-2019 New York practice under the reformed discovery statute (CPL article 245), where the validity of a certificate of compliance (attesting to fulfillment of discovery obligations) can be the linchpin of both discovery and speedy-trial litigation.

2. Statutory Framework and Precedent

The court’s response is purely procedural. It points to:

CPL 210.20(1)(g): Allowing a motion to dismiss an indictment for a speedy trial violation.
CPL 210.45(1): Requiring such a motion to be made “in writing” unless the court permits otherwise.

Relying on its own prior decision in People v. Elmore, 211 AD3d 1536, 1538 (4th Dept 2022), and on People v. Gates, 238 AD2d 729, 731 (3d Dept 1997), lv denied 90 NY2d 905 (1997), the court reiterates that a defendant who fails to make a written motion to dismiss the indictment on speedy-trial grounds does not preserve the issue for appellate review.

That earlier Elmore decision is particularly important: the court quotes itself to emphasize that an oral claim or a generalized objection is not enough; compliance with the written-motion requirement is mandatory for preservation.

3. The Holding and Its Significance

The Fourth Department holds:

“[D]efendant’s contention that the indictment should be dismissed for a speedy trial violation on the ground that the People’s certificate of compliance was invalid and, thus, their statement of readiness illusory, is not preserved for our review ‘inasmuch as he did not move, in writing, for dismissal on that ground’ … We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a]).”

Two key points emerge:

Strict Enforcement of Written-Motion Requirement. The court insists on the formal mechanism prescribed in CPL 210.20 and 210.45. Discovery-era challenges to the CoC and readiness—an area of intense current litigation—must be raised via a proper written motion if they are to be preserved. Oral objections, even detailed ones, are not enough.
Reluctance to Reach Unpreserved CoC/Readiness Claims in the “Interest of Justice.” The court explicitly declines to resort to CPL 470.15(6)(a) to rescue an unpreserved but potentially substantial argument. That signals to practitioners that appellate courts will not readily use interest-of-justice review to reach the merits of CoC-based 30.30 attacks when trial counsel has not complied with statutory motion requirements.

For defense counsel, this is an unmistakable practical directive: timely, written, statutorily grounded motions are indispensable for preserving CoC/readiness issues for appellate review.

B. Investigative Services and Judicial Bias

1. Request for an Investigator

Elmore made oral requests for an investigator, arguing that he was entitled to investigative services at public expense. The County Court denied those requests.

Under New York law, indigent defendants may obtain investigative services where such services are “necessary to [the] defense.” The Appellate Division cites several of its own precedents:

People v. Clark, 142 AD3d 1339, 1340 (4th Dept 2016), lv denied 28 NY3d 1143 (2017)
People v. Pike, 63 AD3d 1692, 1693 (4th Dept 2009), lv denied 13 NY3d 838 (2009)
People v. Drumgoole, 234 AD2d 888, 890 (4th Dept 1996), lv denied 89 NY2d 1011 (1997)

These cases emphasize that the defendant bears the burden of showing that an investigator is not merely useful or desirable, but necessary in light of the nature of the charges, the complexity of the case, and the specific investigative tasks required.

2. The Court’s Ruling

The Fourth Department finds no abuse of discretion in denying the request:

“[D]efendant failed to establish that such services were ‘necessary to his defense.’”

The court’s brief treatment suggests that Elmore’s request lacked specificity: he apparently did not explain what the investigator would do, what evidence might be uncovered, or why existing counsel could not reasonably perform the needed work.

3. Alleged Judicial Bias

Elmore also argued that the denial of investigative services was tainted by judicial bias. The Appellate Division rejects this, invoking:

People v. Anderson, 220 AD3d 1223, 1227 (4th Dept 2023), lv denied 42 NY3d 1051 (2024)
People v. Sides, 215 AD3d 1250, 1252 (4th Dept 2023), lv denied 40 NY3d 936 (2023)

Both cases stand for the principle that a defendant must show actual bias, not merely frustration with adverse rulings or subjective impressions of unfairness. The court concludes that no such showing was made.

The practical lesson is that:

Requests for investigators must be supported by concrete, case-specific reasons.
Claims of bias require evidentiary grounding in conduct demonstrating prejudice—not just disagreement with the court’s decisions.

C. Adjournment: Discretion, Fundamental Rights, and Prejudice

1. Governing Standard

Elmore’s request for an adjournment was denied by the County Court. The Fourth Department reiterates the standard, relying on:

People v. Diggins, 11 NY3d 518, 524 (2008)
People v. Spears, 64 NY2d 698, 699–700 (1984)

As summarized by the court:

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court,” but “in particular situations, when the protection of fundamental rights has been involved in requests for adjournments,” that discretion “is more narrowly construed.”

Even when fundamental rights (such as effective assistance of counsel, presence, or counsel of choice) are implicated, an appellate court will not disturb the denial of an adjournment absent a showing of prejudice. The opinion cites:

People v. Peterkin, 81 AD3d 1358, 1360 (4th Dept 2011), lv denied 17 NY3d 799 (2011)

2. Application to Elmore

The Fourth Department finds no abuse of discretion, relying on:

People v. DeValle, 194 AD3d 1411, 1412 (4th Dept 2021), lv denied 37 NY3d 964 (2021)
People v. Fagan, 12 AD3d 1080, 1081 (4th Dept 2004)
People v. Migranyan, 237 AD3d 1109, 1109 (2d Dept 2025), lv denied 44 NY3d 983 (2025)

The key findings are:

Elmore did not show that the requested adjournment was due to factors outside his control.
He did not establish that the request was not a delaying tactic.
He failed to show any prejudice that would result from proceeding without the adjournment.

This is a textbook application of the Diggins/Spears framework. For future litigants, it underscores the importance of:

Identifying the specific right at stake (e.g. need for time to secure a critical witness, review late discovery, or prepare an essential motion).
Explaining why the need for adjournment is not of the defense’s own making.
Articulating concrete prejudice from denial (for example, loss of evidence or inability to present a defense).

D. Public Trial and COVID-Era Remote Access: The Hinton Hearing Requirement

1. The Claim

Elmore argued that his right to a public trial under the Sixth and Fourteenth Amendments was violated because of “alleged problems with the quality of the audio and visual streaming broadcast of his court proceedings” in a separate viewing room used during the COVID-19 pandemic.

Many courts, to reduce in-person attendance during the pandemic, provided public access via livestreams or designated viewing rooms. Elmore contended that poor technical quality of this feed effectively deprived him of a truly public trial.

2. Preservation via Hinton Hearing

The Fourth Department holds the claim unpreserved because Elmore did not request a Hinton hearing. It cites:

People v. Dozier, 238 AD3d 1523, 1525 (4th Dept 2025)
People v. Everson, 158 AD3d 1119, 1123 (4th Dept 2018), lv denied 31 NY3d 1081 (2018), reconsideration denied 31 NY3d 1147 (2018), cert denied 586 U.S. 1198 (2019)
People v. Hinton, 31 NY2d 71, 73–76 (1972), cert denied 410 U.S. 911 (1973)

Hinton established the requirement of a hearing before closing a courtroom to the public. The key move here is that the Fourth Department treats a claim about inadequate remote access as functionally analogous to, or at least overlapping with, a courtroom closure issue, requiring:

Objection at trial; and
A request for a Hinton hearing to explore the closure/access issue.

3. Implications

The holding reinforces a trend:

COVID-era modifications to public access (including use of remote feeds or separate viewing rooms) are analyzed through the familiar lens of Hinton.
Defendants must create a record by requesting a Hinton hearing if they claim that courtroom access, in whatever form it is being provided, is constitutionally inadequate.

Substantively, the court does not decide whether defective audio/visual quality in a public viewing room could ever amount to a violation of the right to a public trial. It instead sends a clear procedural message: without a contemporaneous objection and a request for a Hinton hearing, the issue will not be reviewed on appeal.

E. Legal Sufficiency, Intent to Kill, and Firearm Use

1. Preservation of Legal Sufficiency Challenges

Elmore challenged the legal sufficiency of the evidence supporting the intent element for:

Attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1])
Criminal use of a firearm in the first degree (Penal Law § 265.09[1][a])

The court holds that the challenge is unpreserved, citing:

People v. Gray, 86 NY2d 10, 19 (1995)
People v. Hines, 97 NY2d 56, 62 (2001), rearg denied 97 NY2d 678 (2001)

Under Gray, a trial order of dismissal must be “specifically directed” at the alleged deficiency. A generic motion that “the People failed to prove their case” does not preserve arguments targeting particular elements (such as intent).

The Fourth Department finds Elmore’s motion was not specifically directed at intent and therefore does not preserve the issue for review.

2. The Substantive Law of Intent Inference

The court proceeds, “in any event,” to address the merits, concluding that the evidence was legally sufficient. It relies on the familiar rule that intent can be inferred from conduct and surrounding circumstances, citing:

People v. Rouse, 34 NY3d 269, 274 (2019)

It then invokes a line of Appellate Division cases, especially in firearm contexts, that hold intent to kill can be inferred from the act of firing at people:

People v. Blackshell, 178 AD3d 1355, 1356 (4th Dept 2019), lv denied 35 NY3d 968 (2020)
People v. Forsythe, 230 AD3d 1544, 1545 (4th Dept 2024), lv denied 42 NY3d 1079 (2025)
People v. Brown, 120 AD3d 954, 956 (4th Dept 2014), lv denied 24 NY3d 1118 (2015)

In those cases, and here, the courts reason that:

The evidence that defendant pointed a loaded firearm at [multiple] individuals and then fired [multiple] shots in their direction “supports an inference that, rather than acting recklessly, defendant fired shots with the intent to kill one or more of the individuals.”

Thus, the court’s application is straightforward: aiming and firing a loaded gun at human targets at close range allows the jury to reasonably infer a conscious objective to cause death, rather than mere recklessness or intent to frighten.

F. Weight of the Evidence: The Bleakley-Danielson Framework

1. Legal Sufficiency vs. Weight of the Evidence

The court distinguishes between:

Legal sufficiency—a minimal threshold: could any rational trier of fact have found the elements proved beyond a reasonable doubt?
Weight of the evidence—a broader, appellate-level re-weighing, where the court “sits as a thirteenth juror.”

It applies the framework from:

People v. Danielson, 9 NY3d 342, 349 (2007)
People v. Bleakley, 69 NY2d 490, 495 (1987)

Under Bleakley, an appellate court:

Determines whether, based on all the credible evidence, a different verdict would have been unreasonable; and
If not, defers to the jury’s credibility determinations and upholds the verdict.

2. Application to Elmore’s Convictions

Regarding the shooting incident, the court reviews the evidence for:

Attempted murder in the second degree
Criminal use of a firearm in the first degree
Assault in the second degree
Criminal possession of a weapon in the second degree
Resisting arrest

After viewing the evidence “in light of the elements of the crimes … as charged to the jury” (Danielson), the court concludes the verdict is not against the weight of the evidence.

With respect to the brandishing incident and its associated weapon-possession count, the court applies the same standard and concludes, quoting:

People v. Weezorak, 134 AD3d 1590, 1590 (4th Dept 2015), lv denied 27 NY3d 970 (2016)
People v. Kreutter, 121 AD3d 1534, 1535–1536 (4th Dept 2014), lv denied 25 NY3d 990 (2015)

that “an acquittal would have been unreasonable … and thus the verdict … is not against the weight of the evidence.”

By invoking that formulation, the court signals a relatively strong evidentiary case for guilt on the weapon possession count tied to the brandishing incident.

G. Jury Deliberations, Allen Charges, and Non-Coercive Instructions

1. What Is an Allen Charge?

An Allen charge (from Allen v. United States, 164 U.S. 492 (1896)) is a supplemental jury instruction given when the jury reports difficulty reaching a verdict. Properly framed, it encourages jurors to re-examine their positions in a spirit of openness, while making clear that no juror should surrender an honest belief merely to achieve unanimity.

New York law is cautious: the instruction must not be coercive or suggest that the jury must reach a verdict at all costs. The Court of Appeals summarized acceptable guidance in People v. Pagan, 45 NY2d 725, 726–727 (1978).

2. Elmore’s Claim and the Court’s Response

Elmore contended that the trial court erred by failing to give an Allen charge. The Fourth Department notes:

The claim is unpreserved because defense counsel did not request an Allen charge, citing:
- CPL 470.05(2)
- People v. Wilmet, 239 AD3d 1436, 1437 (4th Dept 2025), lv denied 44 NY3d 985 (2025)

In any event, the court evaluates the instruction that the trial judge did give in response to a jury note and concludes:

It “did not coerce or compel the jury to reach a verdict,” citing:
- People v. Afrika, 278 AD2d 942, 942 (4th Dept 2000)
It was “open ended and encouraging,” citing:
- People v. Brooks, 183 AD3d 1231, 1232 (4th Dept 2020), lv denied 35 NY3d 1043 (2020)
- People v. Pagan, 45 NY2d at 726–727

Thus, even if the issue had been preserved, the court found no error. The message to trial practitioners is twofold:

If counsel believes a jury is deadlocked or requires specific guidance, they must affirmatively request an Allen charge.
Appellate courts will uphold instructions that urge continued deliberations in neutral, non-coercive terms, consistent with Pagan.

H. Erlinger, the Prior-Conviction Exception, and Predicate-Felony Sentencing

1. The Claim: Erlinger and Second Violent Felony Offender Sentencing

Elmore argued that his sentencing as a second violent felony offender is unconstitutional in light of the U.S. Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024).

New York’s second violent felony offender scheme (Penal Law § 70.04) allows enhanced sentencing when a defendant has a qualifying prior violent felony. Traditionally, New York courts have treated the existence and classification of prior convictions as matters for judicial determination, rather than jury findings, relying on the “prior conviction” exception recognized by Apprendi v. New Jersey, 530 U.S. 466 (2000).

In Erlinger, the Supreme Court continued to refine the boundary of that exception, holding that certain facts about prior convictions (such as whether they occurred on different “occasions,” in the context of the federal Armed Career Criminal Act) must be submitted to a jury. This naturally prompted challenges to state recidivist-sentencing regimes, including New York’s.

2. The Fourth Department’s Disposition

The court does not reach the merits. Instead, it holds that Elmore’s Erlinger-based claim is:

Unpreserved under CPL 470.05(2), because it was not raised at sentencing.
Not suitable for interest-of-justice review, as the court expressly declines to reach it under CPL 470.15(6)(a).

In doing so, the court cites:

People v. Hernandez, 43 NY3d 591, 597 (2025)
People v. Finkelstein, 28 NY3d 345, 348 (2016)

While the opinion does not summarize Hernandez, its deployment here indicates:

The Court of Appeals has recently spoken on related issues of preservation and/or the validity of New York’s recidivist sentencing framework in the wake of evolving federal doctrine.

The Fourth Department’s choice not to consider the Erlinger argument in the interest of justice is especially telling. This is a cutting-edge constitutional issue, yet the court insists that:

A defendant who wishes to challenge predicate-felony sentencing on Erlinger or Apprendi grounds must properly object at sentencing. Absent such an objection, the issue will not be reached on appeal, even when it involves a substantial constitutional question.

3. Practical Impact

For practitioners:

Defense counsel must explicitly raise any Erlinger- or Apprendi-based objections to predicate-felony sentencing at the time of sentence—e.g., by challenging the court’s authority to make particular factual findings about prior convictions or their qualifying nature without a jury.
Trial courts, for now, may continue to apply New York’s existing predicate-felony procedures unless and until higher courts hold that some aspect is inconsistent with Erlinger.
Appellate courts are signaling a strong preference for fully developed records and adversarial briefing on such issues, rather than addressing them sua sponte under interest-of-justice review.

I. Sentencing Review and Remaining Claims

After disposing of Elmore’s discrete arguments, the court briefly notes:

The sentence is not unduly harsh or severe, applying its standard discretionary review of sentence length.
It has “reviewed defendant’s remaining contention and conclude[s] that it does not warrant modification or reversal of the judgment.”

These conclusory statements reinforce that the panel saw nothing extraordinary in the ultimate punishment imposed, especially given the seriousness of the offenses (attempted murder and related firearm and assault charges) and the presence of a prior violent felony.

V. Complex Concepts Simplified

For readers less familiar with criminal procedure, the following concepts are central to understanding the opinion:

1. Certificate of Compliance and “Illusory” Readiness

Under New York’s discovery reforms, prosecutors must disclose broadly defined discovery materials and then file a certificate of compliance (CoC) certifying that they have met their obligations.
They often file a statement of readiness under CPL 30.30 (speedy trial statute) in tandem with the CoC.
If the CoC is invalid—for example, because discovery is incomplete—defendants argue that the statement of readiness is “illusory” and does not stop the speedy-trial clock.
Elmore does not decide whether the CoC here was valid; it simply holds that the issue was not properly preserved because there was no written motion to dismiss.

2. Hinton Hearing and Public Trial

A Hinton hearing is held when the prosecution or defense seeks to close the courtroom to the public, wholly or partially. It allows the court to weigh competing interests (security, witness safety, privacy) against the constitutional right to a public trial.
In the COVID era, physical closure has sometimes been replaced by alternative forms of public access, such as livestreams or overflow viewing rooms.
In Elmore, the defendant claimed that poor technical quality of a broadcast to a viewing room effectively undermined his public trial right. The Fourth Department held the claim unpreserved because he did not request a Hinton hearing or otherwise object in a way that triggered formal consideration of the issue.

3. Legal Sufficiency vs. Weight of the Evidence

Legal sufficiency asks: Did the prosecution present any set of facts, if believed, that would allow a rational jury to find each element proven beyond a reasonable doubt?
Weight of the evidence asks: Considering the entire trial record, was the jury’s verdict against the fair weight of the credible evidence?
In Elmore, the sufficiency challenge to intent was unpreserved; the court nonetheless found the evidence sufficient. It then separately found that the jury’s verdict was not against the weight of the evidence.

4. Allen Charge

An Allen charge is a supplemental instruction urging jurors to continue deliberating if they report deadlock, reminding them to listen respectfully to one another and to re-examine their views while maintaining their individual judgment.
It must not coerce jurors into abandoning honest beliefs simply to reach a verdict.
In Elmore, no Allen charge was requested. The court nonetheless reviewed the judge’s response to a jury note and found it appropriately neutral and non-coercive.

5. Second Violent Felony Offender and Erlinger

New York’s second violent felony offender statute increases sentencing exposure for defendants who have a previous violent felony conviction.
Historically, judges, not juries, have determined whether a defendant is a predicate felon, relying on court records and legal classifications.
Apprendi and later cases generally require any fact that increases the statutory maximum sentence to be found by a jury beyond a reasonable doubt—except for “the fact of a prior conviction.”
Erlinger narrowed that exception somewhat by requiring a jury to decide certain factual issues about prior convictions (such as whether they occurred on different “occasions”).
In Elmore, the court does not decide whether Erlinger affects New York’s predicate-felony scheme; it simply holds that such challenges must be raised at sentencing or they are not preserved.

VI. Broader Impact and Significance

1. Procedural Rigor and the Primacy of Preservation

Across every issue—from CoC/readiness, to public trial, to intent sufficiency, to Allen charges, to Erlinger-based sentencing challenges—the Fourth Department’s opinion underscores a central theme:

Substantive arguments, even weighty constitutional ones, are routinely forfeited if not properly and specifically raised in the trial court.

The decision reinforces several practice points:

Written Motions Are Essential. Speedy-trial and CoC-based dismissal arguments must be advanced via formal written motion under CPL 210.20 and 210.45.
Specificity Matters. Trial orders of dismissal must identify the precise element (such as intent) that is allegedly unproven (per Gray and Hines).
Constitutional Claims Require Contemporaneous Objection. Alleged violations of the public trial right and sentencing under evolving federal doctrine must be objected to at the time they arise (e.g., by requesting a Hinton hearing or challenging the legality of a predicate-felony sentence at the sentencing proceeding).

2. COVID-Era Public Trial Jurisprudence

Elmore contributes to a growing body of New York case law on how pandemic-inspired courtroom modifications fit within the Sixth Amendment framework. While it does not answer whether defective remote access can constitute a public-trial violation, it:

Affirms that such claims are governed by Hinton-style procedures.
Signals that appellate courts will not entertain those claims absent a clear trial record reflecting an objection and request for a hearing.

This will shape how counsel litigate public-access issues whenever courts continue to use remote or hybrid access methods (whether for emergencies, space limitations, or convenience).

3. Firearm Use and Intent to Kill

On the merits, Elmore reinforces an established but important principle: intentionally firing a loaded gun at people strongly supports an inference of intent to kill. The line of cases cited (Blackshell, Forsythe, Brown) demonstrates the courts’ willingness to treat “aiming and firing” as powerful circumstantial evidence of homicidal intent.

For prosecutors, this is a solid reaffirmation of their ability to argue attempted murder in multi-shot firearm incidents; for defense counsel, it underscores the need to develop specific countervailing evidence if they wish to contest intent (for example, evidence of warning shots, distance, or other contextual factors).

4. The Future of Erlinger-Based Challenges in New York

Although Elmore does not resolve the substantive reach of Erlinger in New York, it frames the litigation terrain:

Predicate-felony challenges grounded in Erlinger must be preserved at sentencing.
Appellate courts are not inclined to reach them sua sponte under interest-of-justice review.
The Court of Appeals’ decision in Hernandez will likely provide the controlling substantive law in this area, but Elmore signals that future litigants must build preservation and factual records at the trial level if they want to test the boundaries of the prior-conviction exception under New York’s recidivist statutes.

VII. Conclusion

People v. Elmore is, at one level, a straightforward affirmance: the evidence supports the convictions, and the trial court’s discretionary decisions—on investigative services, adjournment, and jury instructions—are upheld. But its broader importance lies in the way it:

Reaffirms that procedural preservation is paramount, even for novel and constitutionally significant claims.
Clarifies how COVID-era public trial issues fit into the longstanding Hinton framework.
Signals that Erlinger-based sentencing challenges must be timely raised in the trial court, or they will not be entertained on appeal.
Continues a robust line of cases holding that firing a gun at people supports an inference of homicidal intent, justifying attempted murder and related firearm convictions.

In the broader legal landscape, Elmore thus functions less as a radical doctrinal shift and more as a procedural and doctrinal consolidation: it knits newer issues (like pandemic trial conditions and post-Erlinger sentencing arguments) into established New York frameworks governing preservation, public access, and evidentiary sufficiency.

For litigators, the message is unmistakable: advancing sophisticated appellate arguments begins at the trial level—with precise written motions, carefully articulated objections, and a fully developed record. Without them, even the most intriguing constitutional contention will struggle to find a hearing on appeal.

Note: This commentary is for educational and informational purposes only and does not constitute legal advice.