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THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial:

It is well settled that “an order which merely determines the admissibility of evidence, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . Here, Supreme Court’s decision merely permits the infant to offer various testimony of his expert witnesses and does not limit the scope of issues to be tried … . Therefore, appellate review of the court’s ruling “must await the conclusion of a trial so that the relevance of the proffered evidence, and the effect of [the court’s] ruling with respect thereto, can be assessed in the context of the record as a whole” … . Accordingly, this appeal must be dismissed … . C.H. v Dolkart, 2019 NY Slip Op 05614, Third Dept 7-11-19

 

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PLAINTIFF’S ACTION AGAINST DEFENDANT FOR LETTING PLAINTIFF USE A SCISSORS LIFT SURVIVED SUMMARY JUDGMENT; PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY ENTRUSTED THE LIFT TO HIM, KNOWING HE DID NOT KNOW HOW TO OPERATE IT; PLAINTIFF WAS INJURED WHEN THE LIFT TIPPED OVER AND PLAINTIFF FELL 25 FEET (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant building contractor negligently entrusted a scissors lift to plaintiff, who was injured when the lift tipped over:

Given the testimony regarding plaintiff’s alleged lack of experience operating the subject scissor lift, the alleged observations by defendant’s employees of plaintiff’s operation thereof, Reagles’ [defendant’s project superintendent’s] assumption as to plaintiff’s level of training and his subsequent knowledge that an employee of defendant was allegedly made aware, prior to the accident, that plaintiff was not familiar with and/or trained in the use and operation of the scissor lift, we find that defendant failed to meet its prima facie burden of establishing the absence of a triable issue of fact, specifically as to whether defendant knew or should have known that plaintiff lacked the requisite training and experience necessary to safely operate the subject scissor lift at the time it was entrusted to him, rendering his subsequent use thereof unreasonably dangerous … . Moreover, the issue of proximate cause is generally more appropriately resolved by the trier of fact … . Further, although it is undisputed that plaintiff was the sole operator of the scissor lift, we find a question of fact also exists as to whether plaintiff’s injuries were a foreseeable result of defendant’s negligent entrustment of the lift to plaintiff … . Hull v The Pike Co., 2019 NY Slip Op 05611, Third Dept 7-11-19

 

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SPECIAL PROSECUTOR DID NOT HAVE THE AUTHORITY TO PROSECUTE A CRIMINAL OFFENSE ON BEHALF OF THE JUSTICE CENTER FOR PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE DISTRICT ATTORNEY DID NOT KNOWINGLY CONSENT AND DID NOT MAINTAIN CONTROL OVER THE PROSECUTION; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, determined that the special prosecutor did not have the authority to prosecute a substance abuse counselor who allegedly sexually abused a 16-year-old patient. The special prosecutor was from the Justice Center for Protection of People with Special Needs. Because the special prosecutor did not have have the knowing and express consent to the prosecution by the district attorney, the indictment was dismissed:

In 2012, the Legislature enacted the Protection of People with Special Needs Act (Executive Law § 550 et seq.) to protect individuals “who are vulnerable because of their reliance on professional caregivers to help them overcome physical, cognitive and other challenges” … by creating a new state agency, the Justice Center, and mandating, among other things, that it employ a special prosecutor appointed by the Governor (hereinafter the Special Prosecutor) to investigate and prosecute criminal offenses involving abuse and neglect of vulnerable persons by employees of specified types of facilities and service agencies … . Although the Act specifically authorizes the Special Prosecutor to “exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform”… , it also prohibits the Special Prosecutor from “interfer[ing] with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect” … . …

… [T]here is no constitutional support for the Legislature’s attempt to provide for “the gubernatorial appointment of a non-elected special prosecutor, independent of the [d]istrict [a]ttorneys and with unfettered prosecutorial power” … . …

We turn … to consideration of whether the Albany County District Attorney validly consented to prosecution of defendant by the Special Prosecutor. … [T]he District Attorney did not exercise his essential prosecutorial power to determine whether defendant should be prosecuted but, rather, merely acquiesced in the prosecution by the Special Prosecutor, whom he mistakenly believed already possessed the independent power to prosecute defendant. Second, the District Attorney failed to expressly retain ultimate responsibility for defendant’s prosecution … . People v Hodgdon, 2019 NY Slip Op 05596, Third Dept 7-11-19

 

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EVIDENCE PROPERLY ADMITTED AT TRIAL PURSUANT TO THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE, THE SEARCH WARRANT WAS EXECUTED AT AND THE EVIDENCE WAS SEIZED FROM THE SARATOGA COUNTY PUBLIC DEFENDER’S OFFICE (THIRD DEPT).

The Third Department, in affirming defendant’s predatory sexual assault against a child and child pornography convictions, noted that evidence was seized from the Saratoga County Public Defender’s Office and the evidence was admissible at trial pursuant to the crime-fraud exception to the attorney-client privilege. The facts are not described in any detail:

Defendant … contends that County Court improperly denied his motion to suppress items seized from the Saratoga County Public Defender’s office * * *.  … [U]pon review of the search warrant application and accompanying sworn statements, we conclude that County Court properly determined that there was probable cause to issue the warrant … . With respect to defendant’s claim of attorney-client privilege, we find that the crime-fraud exception applied because there was reasonable cause to believe that the items seized pursuant to the search warrant constituted physical evidence of a crime and that their delivery to counsel was for the purpose of concealing evidence, not for seeking legal advice … . People v Gannon, 2019 NY Slip Op 05591, Third Dept 7-11-19

 

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THE PEOPLE DID NOT DEMONSTRATE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH; THE RECORD SUPPORTED COUNTY COURT’S CONCLUSION THE INVENTORY SEARCH WAS A ‘PRETEXT’ FOR A SEARCH FOR INCRIMINATING EVIDENCE (THIRD DEPT).

The Third Department, in this appeal by the People, determined that the search of defendant’s vehicle was not a valid inventory search and the related suppression motion was properly granted:

Although not fatal to the establishment of a valid inventory search … , the People did not admit the relevant tow and impound policy into evidence. The People also failed to ask any substantive questions of the deputy sheriff to establish that the policy was sufficiently standardized, that it was reasonable and that the deputy sheriff followed it in this case. The deputy sheriff only vaguely stated that he conducted the inventory search, radioed for a tow truck and completed the vehicle impound inventory report in accordance with the policy. Further, although the deputy sheriff filled out the impound inventory report, which indicates that the inventory search began at 9:55 a.m., he testified that the search began prior to that time and did not provide any explanation for the discrepancy. Moreover, there was contradictory testimony as to where the deputy sheriff found defendant’s wallet — inside the vehicle or on defendant’s person. Significantly, if defendant’s wallet was inside the vehicle, as the deputy sheriff testified that it was, then the deputy sheriff allegedly took the wallet out of the vehicle but did not include it in the vehicle impound inventory report. In short, the People did not establish the circumstances under which searching the wallet and the closed trunk was justified under the policy … .

… [T]he record supports County Court’s conclusion that the alleged inventory search was a “pretext” to locate incriminating evidence. People v Espinoza, 2019 NY Slip Op 05592, Third Dept 7-11-19

 

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ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action sought to prohibit the trial judge from adhering to that ruling. At the time of this Article 78 proceeding the criminal trial was over and defendant had been convicted. The matter was considered as an exception to the mootness doctrine:

Prohibition is an extraordinary remedy and, in cases involving the exercise of judicial authority, “is available only where there is a clear legal right, and then only when a court . . . acts or threatens to act either without jurisdiction or in excess of its authorized powers” … . Respondent had jurisdiction over the criminal action against Mercer … and was empowered to preclude Doyle from testifying about matters protected by the attorney-client privilege … . Petitioner’s core complaint is that respondent erred in determining the scope of that privilege, and she may be correct … . Nevertheless, “prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power” … . To allow review of such matters would have an array of negative impacts, encouraging gamesmanship, “erect[ing] an additional avenue of judicial scrutiny in a collateral proceeding and . . . frustrat[ing] the statutory or even constitutional limits on review” … . Thus, inasmuch as petitioner does not point to “an unlawful use or abuse of the entire action or proceeding,” but rather “an unlawful procedure or error in the action or proceeding itself related to the proper purpose of the action or proceeding,” prohibition will not lie … . Matter of Heggen v Sise, 2019 NY Slip Op 05620, Third Dept 7-10-19

 

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EXCESSIVE INTERFERENCE BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge’s intervention usurped the roles of the attorneys and deprived defendant of a fair trial. Defense counsel did not object but the issue was considered on appeal in the interest of justice:

“[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on the function or appearance of an advocate'” … . “The principle restraining the court’s discretion is that a trial judge’s function is to protect the record, not to make it'”… . Hence, “when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness” … .

In this case, the Supreme Court engaged in extensive questioning of witnesses, usurped the roles of the attorneys, elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstered the witnesses’ credibility, interrupted cross-examination, and generally created the impression that it was an advocate on behalf of the People. People v Ramsey, 2019 NY Slip Op 05571, Second Dept 7-10-19

 

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NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES IN THIS STUDENT-PUSHES-STUDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this negligent supervision, student-pushed-by-student, case should have been granted. Negligent supervision was not the proximate cause of the injury:

… [T]he infant plaintiff, a kindergarten student at a school in the defendant … School District … , allegedly was injured when she was pushed into a wall by a fellow kindergarten student while they were lining up outside their classroom before the afternoon session. …

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . However, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury and summary judgment in favor of a defendant charged with the duty of reasonable supervision is warranted … .

Here, the School District established, prima facie, that the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of the infant plaintiff’s alleged injuries … . M.P. v Central Islip Union Free Sch. Dist., 2019 NY Slip Op 05553, Second Dept 7-10-19

third party assault

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STATE DID NOT DEMONSTRATE APPELLANT SEX OFFENDER WAS UNABLE TO CONTROL HIS BEHAVIOR, AS OPPOSED TO HAVING DIFFICULTY CONTROLLING HIS BEHAVIOR; THEREFORE RELEASE WITH STRICT SUPERVISION, AS OPPOSED TO CIVIL COMMITMENT, WAS ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert testimony offered by the State did not demonstrate the appellant sex offender was unable to control his behavior, requiring civil commitment, as opposed to having difficulty controlling his behavior, requiring strict supervision. Therefore appellant should be released under a regimen of strict and intensive supervision and treatment:

… [T]he State failed to present clear and convincing evidence that the appellant has an “inability to control sexual misconduct” … . In this regard, the State relied on, inter alia, the testimony of Dr. Stuart Kirschner, a psychologist, at the mental abnormality trial; a “dispositional addendum” report that Kirschner submitted; and a report from a psychologist for the New York State Office of Mental Health, Dr. Trevor Floyd. While Kirschner testified that the appellant had difficulty controlling his actions due to certain impulse control problems, Kirschner also testified that it was “very difficult” to ascertain whether an individual committed a crime because he or she was unable to control his or her conduct or because he or she chose not to control it, and that the distinction between the two was largely “irrelevant.” This testimony, considered in conjunction with the other evidence presented by the State, was not sufficient to support a finding, by clear and convincing evidence, that the appellant had an “inabilityto control sexual misconduct” … . Furthermore, Floyd’s report, which was based on his own interview with and psychological testing of the appellant, opined that there was insufficient evidence to conclude that the appellant had an inability to control his behavior such that he was a danger to others. The appellant’s expert reached a similar conclusion, opining that the appellant was a “good candidate for release under conditions of strict and intensive supervision and treatment.” Matter of State of New York v Ted B., 2019 NY Slip Op 05550, Second Dept 7-10-19

 

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WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined a witness’s testimony about a lineup identification procedure in which the witness indicated only she was “leaning toward” choosing the defendant was inadmissible. The Second Department further criticized the prosecutor’s summation:

… [T]he foundational requirements of CPL 60.25 were not met …. CPL 60.25 is principally concerned with cases where a witness who has validly identified a defendant on a prior occasion is, nevertheless, unable to make a trial identification due to a lapse of memory … permits a witness to testify in a criminal proceeding about his or her own prior identification where the witness is “unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question” … . The second witness never identified the defendant at the lineup and, thus, there was no prior identification for her to testify about under CPL 60.25 … .

Notably, the impact of the second witness’s testimony was highly prejudicial to the defendant. Identification was a crucial and contested issue in this case. Without the second witness’s testimony regarding whom she would “lean toward,” the evidence of identity consisted primarily of the testimony of the first witness, whose veracity and credibility were questioned because he had lied to detectives and an assistant district attorney, absconded from a police station, and received an extremely favorable cooperation agreement in exchange for his testimony at the defendant’s trial. …

… [T]he prosecutor improperly argued to the jury that there were “no coincidences,” that the defendant was not the “unluckiest guy” in Brooklyn, that “the evidence fits together . . . all the pieces connect,” that “all the evidence points directly at [the defendant] . . . because he’s guilty. Because he did these crimes,” … and that the jury would have to do “a lot of mental gymnastics to believe the defendant did not commit this crime.” She vouched for the credibility of the first witness, arguing that if he had been lying, he would have testified that the defendant “stab[bed] two people.” The prosecutor also referred to the defendant as engaging in “machismo” at the time of the events in question. People v Robles, 2019 NY Slip Op 05572, Second Dept 7-10-19

 

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