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Experts’ Use of Unreliable Hearsay in Article 10 Trial Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Rivera (with a concurring opinion) determined the use of unreliable hearsay by the People ‘s experts in an Article 10 civil commitment trial of a convicted sex offender violated the offender’s right to due process of law.  The court explained that hearsay related to convictions was reliable, hearsay supported by admissions is reliable, hearsay related to acquittals and otherwise unsupported uncharged accusations is unreliable, and hearsay about criminal charges that result in neither acquittal nor conviction require close scrutiny (probative value versus prejudicial effect):

Due process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding.  In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria.  First, the proponent must demonstrate through evidence that the hearsay is reliable.  Second, the court must determine that “the probative value in helping the jury evaluate the [expert’s] opinion substantially outweighs [its] prejudicial effect” (cf. Fed Rules Evid rule 703).  These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.  The requirements prevent an expert from serving as a passive conduit for hearsay, yet allow the jury to evaluate expert opinions by considering reliable and probative evidence.  This rule gives the judge an active role in managing the article 10 proceeding and preserving its integrity.  Matter of State of New York v Floyd Y, 182, CtApp 11-19-13

 

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Statute Which Elevates Criminal Possession of a Weapon to a C Felony, Even When Possession is in the Home, Does Not Violate the Second Amendment

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that the statute which elevates possession of a weapon when previously convicted of a crime to a class C felony, even if possession is in the home, did not violate the Second Amendment right to bear arms:

Intermediate scrutiny requires us to ask whether a challenged statute bears a substantial relationship to the achievement of an important governmental objective (Clark v Jeter, 486 US 456, 461 [1988]).  Penal Law § 265.03 (3), making it a class C felony for anyone previously convicted of any crime to possess an unlicensed, loaded firearm in his home or elsewhere, easily passes this test.  The statute does not, it must be remembered, forbid anyone convicted of any misdemeanor from possessing a gun on pain of class C felony punishment; most misdemeanants — including the present defendant, assuming that resisting arrest was his only prior crime — are eligible for licenses to have guns in their homes.

It is beyond dispute that preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end.  More specifically, to punish severely a convicted criminal who, though eligible for a license, again violates the law by obtaining an unlicensed gun is a means well-suited to the end of assuring that lawbreakers do not have firearms.  People v Hughes, 184, CtApp 11-19-13

 

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“Home or Business Exception” to Criminal Possession of a Weapon Does Not Apply to Defendant Previously Convicted of a Crime

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the “home or business exception” to criminal possession of a weapon in the second degree did not apply when the defendant has been previously been convicted of any crime:

…[T]his appeal requires us to interpret the “home or business” exception to the third-degree weapon possession statute, Penal Law § 265.03 (3).  Under that statute:

“A person is guilty of criminal possession of a weapon in the second degree when:” (3) such person possesses any loaded firearm.  Such possession shall not, except as provided in subdivision one . . . of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.”

Section 265.02 (1), to which the above quoted language refers, defines criminal possession of a weapon in the third degree.  Under Penal Law § 265.02 (1), a person is guilty of third degree criminal possession when he or she “commits the crime of criminal possession of a weapon in the fourth degree . . . and has been previously convicted of any crime.”  The Appellate Division read the reference in section 265.03 (3) to section 265.02 (1) as creating an exception to the home or business exception — i.e., to make that exception inapplicable when the defendant has a previous criminal conviction.  We agree with this reading of the statute.  People v Jones, 185, CtApp 11-19-13

 

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Defendant Who Was Not Informed His Guilty Plea Would Result in Deportation Was Unable to Demonstrate He Was Prejudiced by the Omission

The Court of Appeals, over a dissent, affirmed defendant’s conviction, in spite of his counsel’s failure to inform him his guilty plea would result in deportation. The court determined that, under the specific facts of the case, there was no “reasonable probability” defendant would not have entered a guilty plea had he been informed of the mandatory deportation:

Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see US Const, 6th Amend; NY Const, art I, § 6…).  Under the Federal Constitution, defense counsel is ineffective when his or her performance “f[a]ll[s] below an objective standard of reasonableness” under “prevailing professional norms” (Strickland v Washington, 466 US 668, 687-688 [1984]).  Even if counsel’s performance is deficient, however, the defendant’s conviction will not be reversed unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694-695).  In the plea context, the defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … .  Whether the defendant can show such a “reasonable probability” will often turn, as it does here, on credibility determinations which, if they have support in the record, we cannot review… . * * *

…[W]e conclude that there is support for the lower courts’ determination that defendant failed to show a reasonable probability that, if counsel had informed him that he was certain to be deported as a result of his guilty plea, he would not have pleaded guilty and would have gone to trial… .  People v Hernandez, 211, CtApp 11-19-13

 

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Court’s Failure to Inform Defendant that Guilty Plea May Result in Deportation Violates Due Process/Vacation of Plea in Absence of Notification Not Automatic

In a full-fledged opinion by Judge Abdus-Salaam (with concurring and dissenting opinions), the Court of Appeals determined that all non-citizen defendants who plead guilty to a felony are entitled, under the Due Process clause, to notification that the plea may result in deportation, but that a failure to so notify does not automatically require vacation of the plea:

We … hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.   In reaching this conclusion, we overrule the limited portion of our decision in People v Ford (86 NY2d 397 [1995]) which held that a court’s failure to advise a defendant of potential deportation never affects the validity of the defendant’s plea.

[We] further hold that, in light of the Court’s conclusion that a trial court must notify a pleading non-citizen defendant of the possibility of deportation, the trial court’s failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea.  Rather, to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial… .  People v Peque, et seq, 163, 164, 165, CtApp 11-19-13

 

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No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed

In the context of the dismissal of a tort action against Ferguson Electric Service Company after a building fire, the Fourth Department explained when a contractual relationship can give rise to an action in tort:

“It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated . . . This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” … .  Plaintiffs cannot maintain their tort cause of action because Ferguson … owed no legal duty that is independent of the contract … .  Moreover, “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party…”… . Niagara Foods, Inc…v Ferguson Electric Service Company, Inc…, 1044, 4th Dept 11-15-13

 

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Plaintiff Entitled to Summary Judgment Where Defendant Crossed Into Her Lane Attempting to Make a Left Turn

The Fourth Department determined plaintiff (Daniels) whose car was struck head-on by defendant (Rumsey), whose car crossed into plaintiff’s lane attempting to make a left turn into a parking lot, was entitled to summary judgment, even though plaintiff may have been driving five miles an hour above the speed-limit:

…[W]e conclude that the court properly granted Daniels’s motion for summary judgment dismissing the complaint and cross claims against her.  Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left . . . into . . . [a] private road[] or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.” To meet her initial burden on her motion, Daniels was required “to establish both that [Rumsey’s] vehicle suddenly entered the lane where [Daniels] was operating [her vehicle] in a lawful and prudent manner and that there was nothing [Daniels] could have done to avoid the collision” … .  Daniels met that burden by submitting evidence that the accident occurred after Rumsey turned her vehicle left into Daniels’s path of travel in the southbound curb lane of Delaware Avenue, that Daniels had the right-of-way, and that Daniels was proceeding at a speed of between 30 and 35 miles per hour at the time of the accident, i.e., no more than five miles per hour above the posted speed limit.  Daniels also established that she did not see Rumsey’s vehicle until its grill was in her lane of travel, and that she had only “[f]ractions of a second” to take evasive measures, which proved unsuccessful.  Contrary to Rumsey’s contention, the fact that Daniels may have been driving at a speed in excess of five miles per hour over the posted speed limit of 30 miles per hour is inconsequential inasmuch as there is no indication that she could have avoided the accident even if she had been traveling at a speed at or below the posted speed limit … . Daniels v Rumsey, 1168, 4th Dept 11-15-13

 

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Neglect Finding Cannot Be Based Upon Theoretical Future Harm

The Fourth Department determined that a finding of neglect “cannot be based upon the child’s possible reaction to future harm:”

…DSS failed to meet its burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of respondent’s failure to exercise a minimum degree of care … .  The court’s finding of neglect hinges of the testimony of DSS’s expert psychologist that respondent’s dismissive response to the child’s allegations that she had been sexually abused by her eight-year-old cousin put the child at risk of harm because such response would cause the child to be reluctant to report future allegations of abusive contact.  The evidence did not establish that the child was in fact sexually abused, and we therefore conclude that the court erred in finding that respondent is chargeable with neglect for failing to protect the child from actual harm … .  Moreover, the finding of neglect cannot be based upon the child’s possible reaction to future harm.  “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred” … .  Matter of Lebraun H … 1203, 4th Dept 11-15-13

 

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Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission

In the context of a personal injury case, the Fourth Department noted that the failure to object to the admissibility of medical records within 10 days (CPLR 3122-a [c]) did not render the documents automatically admissible:

Defendants contend that the court erred in denying their request at the commencement of trial to admit all of plaintiff’s medical records in evidence pursuant to CPLR 3122-a (c).  According to defendants, the records were automatically admissible because plaintiff raised no objection within 10 days of trial (see id.).  We reject that contention.  Plaintiff’s failure to object within 10 days before the trial waived any objection plaintiff had to the admissibility of the records as business records (see CPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibility based on other rules of evidence … .  Indeed, plaintiff properly objected at trial on relevancy grounds with respect to the admissibility of some of the records… . Siemucha v Garrison…, 1145, 4th Dept 11-15-13

 

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“Depraved Indifference” Standard Not Met/HIV Positive Defendant Did Not Disclose Status to Victim

The Fourth Department determined the evidence before the grand jury did not demonstrate defendant had acted with “depraved indifference to human life” (Reckless Endangerment, First Degree). The defendant, who was HIV positive, had unprotected sex with the victim without disclosing his HIV status:

…[W]e conclude that the evidence before the grand jury, viewed in the light most favorable to the People …, was legally insufficient to support a finding that defendant acted with depraved indifference to human life (see Penal Law § 120.25…).  Specifically, the evidence established that defendant engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.

Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.  We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the “ ‘wanton cruelty, brutality, or callousness’ ” required for a finding of depraved indifference toward a single victim … .  Defendant told the police that he did not disclose his HIV positive status to the victim because he was “afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  Defendant wrote a letter apologizing to the victim because he was “so upset” and “felt terrible.”  The fact that defendant encouraged the victim to be tested for HIV indicates that defendant “was trying, however weakly and ineffectively,” to prevent any grave risk that might result from his conduct … .  We thus conclude that, “while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that [he] did not care at all” … .

We further conclude that the grand jury evidence, viewed in the light most favorable to the People …., also did not establish that defendant’s conduct presented a grave risk of death to the victim (see Penal Law § 120.25…).  The victim’s physician, an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different antiviral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is “outstanding,” particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a “very healthy, normal lifestyle,” and he expected a similar prognosis for the victim.  We thus conclude that, under the circumstances of this case, the People failed to establish that defendant’s reckless conduct posed a grave or “very substantial” risk of death to the victim… .  People v Williams, 1196, 4th Dept 11-15-13

 

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