You are here: / PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGEST...

Search Results

/ ,

PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE.

The Second Department determined the People had rebutted the presumption that unpreserved photo arrays were unduly suggestive:

… [A]lthough the People’s failure to preserve the photographic arrays displayed through the use of the photo manager system gives rise to a presumption of suggestiveness, the People nevertheless rebutted that presumption and sustained their initial burden of production through the testimony of the police officer who administered the photo identification procedure. The officer testified that the complainant’s daughter was shown computer-generated photo arrays shortly after the attack occurred. The officer further testified as to the specific information that was entered into the photo manager system, which included the perpetrator’s race and approximate age, height, and weight … . The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness … . Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive … . People v Busano, 2016 NY Slip Op 05385, 2nd Dept 7-6-16

CRIMINAL LAW (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/EVIDENCE (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/PHOTO ARRAYS (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/IDENTIFICATION (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)

/ ,

PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because of the prosecutor’s misconduct. The decision went into great detail describing the substance of the misconduct (not summarized here):

… [T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the People’s case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense … . Although objections to some of the remarks below were sustained, we nevertheless include them in order to provide a more complete picture of the pervasiveness of the misconduct at issue on this appeal. People v Redd, 2016 NY Slip Op 05392, 2nd Dept 7-6-16

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT, WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)

/

BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT.

The First Department, reversing Supreme Court, determined defendant was entitled to summary judgment in this slip and fall case because the alleged defect was trivial. Plaintiff alleged tripped over a 3/8-inch-high bar at the entrance to an enclosure for shopping carts (cart corral):

The submissions on the motion establish that “the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . [Defendant] presented photographs taken by plaintiff’s photographer, which show that the metal bar was only three-eighths of an inch above the surface of the parking lot. Those photographs, and others in the record that were shown to plaintiff at her deposition, establish that the bar was not hidden or covered in any way and did not constitute a trap. Myles v Spring Val. Marketplace, LLC, 2016 NY Slip Op 05351, 1st Dept 7-5-16

NEGLIGENCE (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/SLIP AND FALL (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/TRIVIAL DEFECT (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)

/

QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE.

The First Department determined there was a question of fact whether plaintiff assumed the risk of being struck by defendant skier because defendant acted recklessly. Plaintiff was standing at the bottom of the ski slope when defendant collided with her:

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” … .

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances … . Horowitz v Chen, 2016 NY Slip Op 05335, 1st Dept 7-5-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/ASSUMPTION OF RISK (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/SKI ACCIDENT (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)

/

QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL.

The First Department determined there was a question of fact whether the accident was related to a gravity-related risk or merely part of the usual dangers of construction work. Plaintiff was operating a motorized wheelbarrow and was stopped near the top of a hill when it slid down the hill:

Issues of fact exist here as to whether plaintiff’s accident was the result of a gravity-related risk or part of the usual and ordinary dangers of the work site …  . Hence partial summary judgment on plaintiff’s Labor Law § 240(1) claim should have been denied, and summary dismissal of plaintiff’s Labor Law § 200 and common law negligence claims was properly denied. Ankers v Horizon Group, LLC, 2016 NY Slip Op 05342, 1st Dept 7-5-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL)

/ ,

5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE.

The First Department determined the People offered an adequate explanation of the 5 1/2 year delay between when defendant’s DNA was matched to evidence collected from the victims and the indictment. The court further determined the hearsay evidence of third-party culpability was properly excluded as unreliable:

In the intervening years, the prosecution had sought to obtain evidence to strengthen their case, which was based on circumstantial evidence, and the investigative delays were satisfactorily explained … . Furthermore, the resulting prejudice, if any, was minimal. While one potential witness, of questionable reliability, told police that two other men had committed the crimes, and that witness died during the period of delay at issue, the jury nevertheless heard testimony that one of those men had been arrested early in the case. Moreover, ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ … .

The court properly exercised its discretion in denying, on the ground of lack of sufficient indicia of reliability, defendant’s motion to admit hearsay evidence of third-party culpability … . The declarant, the above-discussed man who died during the pendency of the investigation, contradicted himself in numerous statements … . Moreover, other evidence in the case directly undermined the reliability of his statements. People v Fleming, 2016 NY Slip Op 05334, 1st Dept 7-5-16

CRIMINAL LAW (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/EVIDENCE (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/PRE-INDICTMENT DELAY (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)

/ , ,

PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

/ , , ,

PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED.

The Court of Appeals, in an extensive opinion by Judge Pigott, over a dissent in two of the three cases, determined the evidence presented in Mental Hygiene Law Article 10 proceedings supported civil commitment of the three respondents as sex offenders with mental abnormalities resulting in “serious difficulty in controlling [sexual] conduct.”  The facts of each case were discussed in detail, and the determination in each case must be considered “fact specific.” However, in one case the diagnosis of anti-social personality disorder (ASPD) coupled with paraphilia NOS was deemed sufficient. In the other two cases, the diagnosis of borderline personality disorder coupled with ASPD and evidence of sexual crimes was deemed sufficient. The dissent would have found the proof of borderline personality disorder insufficient. The number of distinct issues discussed, and the depth of those discussions, cannot fairly be summarized here. Matter of State of New York v Dennis K., 2016 NY Slip Op 05330, CtApp 7-5-16

 

MENTAL HYGIENE LAW (PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/EVIDENCE (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/SEX OFFENDERS (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/CRIMINAL LAW (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/ANTISOCIAL PERSONALITY DISORDER (ASPD) (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/PARAPHILA NOS  (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)/BORDERLINE PERSONALITY DISORDER (MENTAL HYGIENE LAW, PROOF OF MENTAL ABNORMALITIES SUFFICIENT TO JUSTIFY CIVIL COMMITMENT OF SEX OFFENDERS CLARIFIED)

/ ,

THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined the three-year time limit within which a municipality must commence eminent domain proceedings begins to run when the Court of Appeals dismisses the appeal:

EDPL 401, entitled “Time for acquisition,” prescribes the time during which a condemnor may commence proceedings “to acquire the property necessary for the proposed public project” (EDPL 401[A]). Specifically, section 401(A) provides that the condemnor may commence such proceedings “up to three years” after the latest of “(1) publication of its determination and findings pursuant to [EDPL 204], or (2) the date of the order or completion of [an exemption procedure under EDPL 206], or (3) entry of the final order or judgment on judicial review pursuant to [EDPL 207]” (EDPL 401[A][1]-[3]). Section 401(B) provides that if the condemnor does not commence EDPL article 4 proceedings within the specified time, “the project shall be deemed abandoned, and thereafter, before commencing [EDPL article 4 proceedings,] the condemnor must again comply with the provisions of article two” (EDPL 401[B]).

The plain and common-sense interpretation of the statute is that “the final order or judgment on judicial review” is the final order or judgment disposing of any EDPL 207 challenge and terminating judicial review. Our October 12, 2010 decision did not finally terminate judicial review, as the challengers filed a notice of appeal which entailed further review by the Court of Appeals. The decision of the Court of Appeals could not be known until such time as it issued its order dismissing the appeal. Matter of City of New York v 2305-07 Third Ave., LLC, 2016 NY Slip Op 05352, 1st Dept 7-5-16

 

EMINENT DOMAIN (THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)/MUNICIPAL LAW (EMINENT DOMAIN, THREE-YEAR TIME LIMIT FOR STARTING EMINENT DOMAIN PROCEEDINGS AFTER A COURT CHALLENGE STARTS TO RUN WHEN THE COURT OF APPEALS DISMISSES THE APPEAL FROM THE APPELLATE DIVISION DECISION)

/ ,

COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS.

The Fourth Department, reversing County Court, reinstated three indictment counts which County Court had dismissed. The Fourth Department explained the criteria for sufficient evidence in grand jury proceedings and the court’s sufficiency-review powers. Here it was determined County Court improperly weighed the evidence:

“The standard for reviewing the legal sufficiency of the evidence before the grand jury is whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury” … . “On a motion to dismiss, the reviewing court’s inquiry is confined to the legal sufficiency of the evidence and the court is not to weigh the proof or examine its adequacy” … . ” In the context of the [g]rand [j]ury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt’ ” … . Further, the fact “[t]hat other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand [j]ury could rationally have drawn the guilty inference” … .

Here, we conclude that the evidence, viewed in the light most favorable to the People … , is legally sufficient to support the counts that were dismissed by County Court, and that the court improperly weighed the evidence … . People v Roth, 2016 NY Slip Op 05257, 4th Dept 7-1-16

CRIMINAL LAW (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/EVIDENCE (GRAND JURY, COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)/GRAND JURY (COUNTY COURT ERRONEOUSLY DISMISSED THREE INDICTMENT COUNTS AFTER IMPROPERLY WEIGHING THE EVIDENCE PRESENTED IN THE GRAND JURY PROCEEDINGS)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy