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Defense Request to Review Psychiatric Records of Prosecution Witness Properly Denied; Evidence of Shooting of Prosecution Witness Properly Admitted to Show Defendant’s Consciousness of Guilt

The Second Department determined Supreme Court properly reviewed in camera the psychiatric records of a prosecution witness and properly denied the defense request to review the records. The Second Department further determined that evidence defendant’s brother (and a member of the same gang defendant belonged to) shot a prosecution witness was properly admitted to show defendant’s consciousness of guilt:

Psychiatric records are confidential, but they may be disclosed upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality … . The proper procedure in such a case is for the court to order production of the records and to inspect them in camera … .

Here, the Supreme Court, after inspecting the records in camera, properly balanced the interests of justice against the witness’s need for confidentiality and providently exercised its discretion in denying the defendant’s application for disclosure of the records and use of the records in cross-examination … . * * *

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion when it permitted the prosecution witness to testify to the circumstances leading up to and culminating in him being shot by two persons directly connected to the defendant. “Certain post crime conduct is [viewed as] indicative of consciousness of guilt, and hence of guilt itself'” … . Consciousness of guilt evidence includes evidence of coercion and harassment of witnesses … and “[e]vidence that a third party threatened a witness with respect to testifying at a criminal trial is admissible where there is at least circumstantial evidence linking the defendant to the threat” … .

Here, there was sufficient circumstantial evidence linking the defendant to the plot to shoot the witness … and the evidence of the defendant’s gang membership was relevant to establish the relationship between the actors … . Under the circumstances, the probative value of the evidence as to the defendant’s consciousness of guilt outweighed the prejudice … . People v Viera, 2015 NY Slip Op 07998, 2nd Dept 11-4-15

 

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Police Did Not Have Sufficient Information to Justify Pursuit of Defendant; Street Stop (DeBour) Criteria Clearly Explained

The Second Department determined defendant’s motion to suppress the weapon he discarded during a police pursuit should have been granted. The police approached defendant after seeing him make several adjustments to his waistband. When defendant ran, the police pursued him. Because the police, based on their observations, could make only a level one inquiry (which the defendant had a right to ignore), the pursuit was not justified. The court offered a clear explanation of the criteria for street stops (DeBour criteria):

“On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance” … , the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality … . The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime … . The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime … .

In order to justify police pursuit, the officers must have “reasonable suspicion that a crime has been, is being, or is about to be committed” … . Reasonable suspicion has been defined as “that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand” … . A suspect’s “[f]light alone . . . even [his or her flight] in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” … . However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … . People v Clermont, 2015 NY Slip Op 07989, 2nd Dept 11-4-15

 

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Need for Appointment of a Guardian of Property Not Demonstrated, Criteria Explained

The Second Department, reversing Supreme Court, determined the appellant’s sister, Marie F., did not meet her burden of proving by clear and convincing evidence appellant was incapacitated. The sister had been appellant’s property guardian and, in being removed, requested that another guardian be appointed. The court explained the relevant criteria:

“Mental Hygiene Law article 81 confers upon the court the discretion to determine whether a guardian should be appointed for an alleged incapacitated person” … . “In exercising its discretion to appoint a guardian for an individual’s property . . . , a court must make a two-pronged determination: first, that the appointment is necessary to manage the property or financial affairs of that person, and, second, that the individual either agrees to the appointment or that the individual is incapacitated’ as defined in Mental Hygiene Law § 81.02(b)” … . A person is incapacitated when the person is likely to suffer harm because: (1) the person is unable to provide for property management, and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability (see Mental Hygiene Law § 81.02[b]). A determination that a person is incapacitated under the provisions of Mental Hygiene Law article 81 “must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]). When a party seeks to terminate a guardianship, “the burden of proof shall be on the person objecting to such relief” (Mental Hygiene Law § 81.36[d]).

Here, although Marie F. wished to be removed as guardian, she was the only person who objected to the termination of the guardianship position and asked the Supreme Court to appoint a new guardian. However, Marie F. failed to meet her burden of proving by clear and convincing evidence that the appellant was incapacitated. The hearing testimony demonstrated that the appellant managed her own checking account, paid bills relating to her apartment with her social security disability income, and was taking steps to challenge the Medicaid lien. While the appellant was currently unemployed, she holds a Master’s degree and testified that she was “interviewing consistently.” Although Marie F. testified that the appellant had delusions and difficulty maintaining employment, her testimony was vague, unsupported by additional evidence, and did not rise to the level of clearly and convincingly demonstrating the appellant’s inability to provide for property management and a lack of understanding about the nature and consequences of such inability. Similarly, although Marie F. testified as to the appellant’s spending habits, she failed to sufficiently demonstrate that the appellant’s expenditures over the years were wasteful and thereby indicative of an inability on the part of the appellant to provide for her own property management and understand her budgetary constraints.

Since the record does not contain clear and convincing evidence that the appellant was unable to manage her finances or understand and appreciate her limitations, the Supreme Court erred in determining that the appellant was incapacitated, appointing a new guardian of her property, and denying her motion to terminate the guardianship. Matter of Deborah P. (Marie F.), 2015 NY Slip Op 07977, 2nd Dept 11-4-15

 

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Driver In Middle Car of Chain Reaction Accident Entitled to Summary Judgment

The Second Department, reversing Supreme Court, determined summary judgment should have been granted to the driver of the middle car in a chain reaction accident. The evidence demonstrated the driver had stopped behind the lead car and was propelled into the lead car when struck from behind:

In a multi-vehicle, chain reaction accident, when the operator of a vehicle that was propelled into another vehicle by a following vehicle presents evidence that he or she was able to safely bring his or her vehicle to a stop behind the lead vehicle before being struck in the rear by a following vehicle, that operator has established his or her prima facie entitlement to judgment as a matter of law … . Thus, “[i]n chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Niosi v Jones, 2015 NY Slip Op 07957, 2nd Dept 11-4-15

 

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Plaintiff-Pedestrian’s Acts Constituted Sole Proximate Cause

The Second Department determined defendants were entitled to summary judgment dismissing the complaint because plaintiff’s acts constituted the sole proximate cause of his injuries.  Plaintiff stepped out between two cars in an attempt to cross the street:

Under the circumstances presented here, the … defendants established their entitlement to judgment as a matter of law by demonstrating that the conduct of the plaintiff in crossing the street at a location other than at an intersection, while emerging from between stopped cars, was the sole proximate cause of the accident, and that [defendant] was free from fault despite the plaintiff’s allegation that she failed to avoid a collision with the plaintiff … . Balliet v North Amityville Fire Dept., 2015 NY Slip Op 07943, 2nd Dept. 11-4-15

 

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Pre-2008 Criteria for Adverse Possession Explained

Applying the law of adverse possession as it was in 2002 (the legislature changed the law in 2008), the Second Department determined plaintiffs had demonstrated they acquired land enclosed by a fence by adverse possession:

In 2008, the Legislature enacted changes to the adverse possession statutes … . Here, however, since title to the disputed property allegedly vested in the plaintiffs by adverse possession in 2002 at the latest, the law in effect prior to the amendments is applicable … . Accordingly, the plaintiffs were required to demonstrate that their possession was “(1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years” … . Additionally, under the former version of RPAPL 522 that was in effect at the relevant time, the plaintiffs were required to establish that the disputed area was either “usually cultivated or improved” or “protected by a substantial inclosure” … . “Since adverse possession is disfavored as a means of gaining title to land, all elements of an adverse possession claim must be proved by clear and convincing evidence” … .

Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law declaring that they were the owners of the disputed property by adverse possession. They submitted evidence that the disputed property had been enclosed by fencing since at least 1992, and that both the plaintiffs and their predecessor in interest cultivated and maintained the lawn on their side of the fence until 2010, while the property on the defendant’s side of the fence was wooded and remained uncultivated. Warren v Carreras, 2015 NY Slip Op 07967, 2nd Dept 11-4-15

 

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Attorney Whose Testimony Would Support Client Should Have Been Disqualified Under Advocate-Witness Rule, However, the Motion to Disqualify the Attorney’s Firm Was Properly Denied

The Second Department noted that an attorney (Wohlman) should have been disqualified under the advocate-witness rule but the motion to disqualify the attorney’s firm and “of counsel” was properly denied. The attorney’s testimony would not be prejudicial to the client:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to disqualify Derek Wolman from representing the defendant in this action, since Wolman’s testimony will be necessary regarding “a significant issue of fact” in the dealings between the plaintiff and the defendant (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]…). Contrary to the defendant’s contention, the fact that Wolman’s testimony is necessary to and will support the defendant’s case does not preclude application of the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7…).

However, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff’s motion which were to disqualify Davidoff Hutcher & Citron, LLP, (hereinafter DHC), Candace C. Carponter, and Candace C. Carponter, P.C., from representing the defendant in this action. Wolman is a member of DHC, and Candace C. Carponter and her P.C. appeared as “of counsel” to DHC. Under rule 3.7(b)(1) of the Rules of Professional Conduct (see 22 NYCRR 1200.0), which are not binding authority and provide guidance only … , “[a] lawyer may not act as an advocate before a tribunal if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (22 NYCRR 1200.0, rule 3.7[b][1]). Here, the plaintiff did not argue that Wolman’s testimony would be prejudicial to the defendant. Rather, the plaintiff argued that Wolman’s testimony would support the defendant’s case. Thus, the plaintiff failed to establish any basis for disqualifying DHC, Carponter, or Carponter’s P.C. They can continue to represent the defendant despite the fact that Wolman, their colleague, is a necessary witness … . NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 2015 NY Slip Op 07958, 2nd Dept 11-4-15

 

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Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant’s Summary Judgment Motion

The Third Department determined a statement made by defendant’s employee [Mackey] near the time of plaintiff’s slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant’s summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant’s motion for summary judgment. Defendant’s motion was properly denied:

… “[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words “Condition at the time of last check prior to accident:” Mackey wrote, “ice machine is always leaking.” Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court’s ruling that Mackey’s written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant’s motion for summary judgment …

Further, in keeping with the principles that, “[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” … and such motion should be denied if there is any doubt as to the existence of such issues …, we likewise find no error in Supreme Court’s consideration of Mackey’s oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although “hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form” … . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

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Out-of-Possession Landlord and Lessee Are Not “United In Interest” Such that the Lessee Could Be Added to the Complaint After the Statute of Limitations Had Run (Relation-Back Doctrine)

The Third Department determined Supreme Court, in a snow-ice slip and fall case, properly denied plaintiff’s motion to amend the complaint, after the statute of limitations had run, to add the lessee of the property (Albany Medical Center Hospital [AMCH]) as a defendant. The defendant out-of-possession landlord demonstrated, under the terms of the lease, AMCH had the responsibility for maintaining the property in a safe condition. Because the out-of-possession landlord and AMCH were not “united in interest,” the relation-back doctrine did not apply:

… [T]he relation back doctrine permits a plaintiff to amend the complaint to add a defendant even though the statute of limitations had expired at the time of amendment so long as three requirements are met: “(1) both claims must arise out of the same occurrence, (2) [the] defendant and [the new party] were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) [the new party] knew or should have known that, but for a mistake by [the] plaintiff as to the identity of the proper party, the action would have been brought against it as well ” … . While there is no dispute that the first prong of this test is satisfied under these circumstances, we agree with Supreme Court that defendant and AMCH do not share unity of interest inasmuch as they cannot be said to “stand or fall together” … . “Indeed, unless the original defendant and new party are vicariously liable for the acts of the other[,] there is no unity of interest between them” … . McLaughlin v 22 New Scotland Ave., LLC, 2015 NY Slip Op 07883, 3rd Dept 10-29-15

 

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Failure to Assess Reliability of Confidential Informants Required Annulment and Expungement

The Third Department annulled and expunged the disciplinary determination because the hearing officer was not given enough information to adequately assess the confidential informants’ reliability:

“A disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability” … . Here, the correction officer who investigated the incident and authored the misbehavior report testified that his information regarding petitioner’s involvement was gleaned from confidential informants. Other than noting that the confidential informants either had proven reliable in the past or disclosed detailed information about the incident, the correction officer did not testify with any further specificity or detail regarding the substance of the information that was provided in order for the Hearing Officer to independently assess the informants’ reliability or credibility. Given that the confidential information was instrumental in finding petitioner guilty of the charges, we find that substantial evidence does not support the determination and it, therefore, must be annulled… . Matter of Bridge v Annucci, 2015 NY Slip Op 07886, 3rd Dept 10-29-15

 

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