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TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM.

The First Department, reversing Family Court’s juvenile delinquent adjudication, determined the testimony at the fact finding hearing about the identification procedure was so different from the description in the voluntary disclosure form [VDF] that the identification evidence should not have been admitted:

In a voluntary disclosure form [VDF], the presentment agency informed appellant that the complainant identified him inside a restaurant. Consistent with this notice, the arresting detective testified at the suppression hearing that he saw appellant and two companions, whom he had been following, enter the restaurant, that the complainant arrived at the scene, and that despite the officer’s instruction for the complainant to wait outside, the complainant entered the restaurant shortly after the detective did and there identified appellant. Based on this testimony, the court denied suppression, finding that the identification was a “spontaneous or un-arranged identification.” However, when the complainant ultimately testified at the fact-finding hearing, he testified that he never entered the restaurant, but rather that he identified appellant after the detective brought the three boys out of the restaurant and lined them up against a wall.

Although an inconsequential defect in a notice may be excused … , here the discrepancy between the two accounts of the identification was not inconsequential, but rather reflected that the VDF provided inadequate notice of the evidence the presentment agency intended to present at the fact-finding hearing … . Accordingly, the court should have granted appellant’s Family Ct Act § 330.2(2) motion to preclude identification evidence, which was made after the complainant testified regarding the identification procedure outside the restaurant. Matter of Deavan W., 2016 NY Slip Op 08469, 1st Dept 12-15-16

 

FAMILY LAW (TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/CRIMINAL LAW (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/JUVENILE DELINQUENCY (TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/EVIDENCE (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)/IDENTIFICATION (FAMILY COURT, JUVENILE DELINQUENCY, TESTIMONY AT THE FACT FINDING HEARING ABOUT THE IDENTIFICATION PROCEDURE SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT DIFFERED SIGNIFICANTLY FROM THE PROCEDURE DESCRIBED IN THE VOLUNTARY DISCLOSURE FORM)

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OBSERVING THE DEFENDANT CARRYING CAPPED BOTTLES OF ALCOHOL AND HAVING A HEAVY OBJECT IN A JACKET POCKET WAS NOT SUFFICIENT TO JUSTIFY DETAINING DEFENDANT; DEFENDANT’S FLIGHT WHEN AN OFFICER SAID “COME OVER HERE” IS OF NO CONSEQUENCE; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).
DEFENDANT’S ALLEGED FAILURE TO REPAY MONEY PAID BY PLAINTIFFS PURSUANT TO A CONTRACT WHICH HAD BEEN TERMINATED STATED A CAUSE OF ACTION FOR CONVERSION, FRAUD IN THE INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE IT WAS BASED UPON NON-ACTIONABLE FUTURE EVENTS AND NON-ACTIONABLE OPINION ON THE PART OF THE DEFENDANT (FIRST DEPT).
Deliberate Avoidance of Service of Process 
PROVIDING WRITTEN INSTRUCTIONS TO THE JURY OVER DEFENDANT’S OBJECTION REQUIRED REVERSAL AND A NEW TRIAL, HOT LIQUID CAN BE A DANGEROUS INSTRUMENT WITHIN THE MEANING OF THE PENAL LAW (FIRST DEPT).
IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).
OUT-OF-POSSESSION LANDLORD WITH RIGHT OF ENTRY TO INSPECT OR REPAIR DID NOT HAVE A DUTY TO REPAIR THE DEFECT AT ISSUE, DEFECT WAS NOT STRUCTURAL AND DID NOT VIOLATE A STATUTORY SAFETY PROVISION (FIRST DEPT).
SHAREHOLDERS’ DERIVATIVE ACTION IS EQUITABLE IN NATURE, MOTION TO STRIKE DEMAND FOR A JURY TRIAL SHOULD HAVE BEEN GRANTED.

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