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Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).
WHETHER A DELAY IN DIAGNOSIS AFFECTED PLAINTIFF’S PROGNOSIS IS USUALLY A JURY QUESTION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE EVIDENCE PRESENTED IN SUPPORT OF THE DEFENDANT TOWN’S AND POLICE-OFFICER’S MOTION FOR SUMMARY JUDGMENT WAS UNEQUIVOCAL AND DEMONSTRATED THE OFFICERS DID NOT VIOLATE THE “RECKLESS DISREGARD” STANDARD WHEN PURSUING PLAINTIFF MOTORCYCLIST, WHO CRASHED AND WAS SERIOUSLY INJURED; THERE WAS NO INDICATION FURTHER DISCOVERY WOULD UNCOVER ADDITIONAL EVIDENCE; THE MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​
KNEE INJURY CAUSED BY CARRYING A HEAVY STEEL BEAM DOWN STAIRS IS NOT A COVERED ACCIDENT UNDER LABOR LAW 240 (1) (SECOND DEPT).
WHERE A FORECLOSURE ACTION IS TERMINATED BY A STIPULATION OF DISCONTINUANCE WITH PREJUDICE, THE STIPULATION CANNOT BE VACATED BY A MOTION, A PLENARY ACTION MUST BE BROUGHT (SECOND DEPT).
ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION.
PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT
STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

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