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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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SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED.

The First Department affirmed defendant’s conviction because he pled guilty before the court ruled on his suppression motion. Suppression therefore could not be considered on appeal. However, the court determined there was no justification for a strip search and warrantless body-cavity search:

… [T]here is merit to defendant’s claim that the police lacked the requisite reasonable suspicion to conduct a strip search. The record showed only that defendant was arrested during a buy-and-bust operation in a drug-prone location. Defendant was not observed reaching into his pants and no drugs were found on his clothing. “The police officers’ generalized knowledge that drug sellers often keep drugs in their buttocks, and the fact that no drugs were found in a search of defendant’s clothing [a]re insufficient” … .

There is also merit to defendant’s claim that the strip and visual body cavity search were not conducted in a reasonable manner and without a warrant or exigent circumstances. The record shows that defendant had his clothing torn from his body and was searched in the presence of four or five officers, belying the imperative to seek out “utmost privacy, and in the presence of only those members of the service reasonably necessary to conduct the search” to “achieve a balance between the privacy and personal dignity concerns of the [arrestee],” as set forth in the provisions of the NYPD Patrol Guide (Procedure No. 208.5[C][4] [2013]) concerning strip search procedures. The violence of the search — which resulted in physical injury to defendant requiring transfer to the hospital — was unnecessary particularly given that defendant was not being charged with a violent offense.

Further, the record indicates that defendant was very likely subjected to a warrantless [*2]manual cavity search of his rectum … . Potential dissemination or destruction of drugs was not a concern where defendant was already in a secure cell with five officers watching him … . People v Durham, 2016 NY Slip Op 08438, 1st Dept 12-15-16

CRIMINAL LAW (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/APPEALS (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/EVIDENCE (CRIMINAL LAW, SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/SEARCH AND SEIZURE (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/STRIP SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)/BODY CAVITY SEARCH (SUPPRESSION NOT RULED ON BELOW COULD NOT BE CONSIDERED ON APPEAL, STRIP AND BODY CAVITY SEARCHES CRITICIZED)

DEFENDANT’S FAMILY IMPROPERLY EXCLUDED FROM THE COURTROOM, CONVICTION REVERSED.

The First Department reversed defendant’s conviction, finding that defendant’s family was improperly excluded from the courtroom:

Defendant’s family members were improperly excluded from the closed courtroom during the testimony of an undercover officer. It is undisputed that the evidence presented at a Hinton hearing did not demonstrate that the “exclusion of [defendant’s family members was] necessary to protect the interest advanced by the People in support of closure” … . The People ask us to interpret the record as indicating that the court did not, in fact, exclude defendant’s relatives. While the record arguably presents a degree of ambiguity in this regard, in that both the prosecutor, in the course of his argument about the officer’s efforts to conceal his identity, and the court, in discussing its decision, mentioned “the general public,” these ambiguous and equivocal indications are insufficient to persuade us that defendant’s family members were in fact allowed to be present.

The prosecutor requested that the courtroom be closed “entirely,” without making any specific provision for family members, and asserted that the closure requested was not “overly broad.” Defense counsel specifically asserted the right of the family members to be present. The court then granted the People’s application, making no specific allowance or arrangements for the family members to attend. Under these circumstances, we cannot fairly read the record to indicate that the presence of family members was permitted. People v Moore, 2016 NY Slip Op 08447, 1st Dept 12-15-16

 

CRIMINAL LAW (DEFENDANT’S FAMILY IMPROPERLY EXCLUDED FROM THE COURTROOM, CONVICTION REVERSED)/CLOSURE OF COURTROOM (DEFENDANT’S FAMILY IMPROPERLY EXCLUDED FROM THE COURTROOM, CONVICTION REVERSED)

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THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES.

The Court of Appeals determined the trial court did not err when it admitted the three-year-old victim’s statements (and gestures) made within half an hour of the sexual abuse as excited utterances. The same statements made at the hospital three hours later may not have been admissible as excited utterances, but any error in admitting them was deemed harmless:

We discern no error in the admission of the child’s initial statements to her mother and father as excited utterances. The evidence established that the child was in a highly emotional state when she first stepped off the bus and that she continued to cry inconsolably as she uttered the phrase “Señor Bus” to her mother and father at home and made a licking gesture with her tongue. Those statements were made within a half hour of the startling event, while the child was still under the stress of excitement, and therefore were properly admitted at trial … .

The child repeated the same phrase and gesture to her parents three hours later at a hospital and also pulled her mother’s hand to the child’s genital area. Even accepting defendant’s contention that the stress of excitement had sufficiently abated by the time the child made those later statements, any error in their admission was harmless … . Forensic testing confirmed the presence of defendant’s DNA in the child’s underwear, and the bus matron provided unrefuted testimony that defendant had altered his bus route in such a way that the child was alone with defendant for approximately thirty minutes on the day of the incident. Additionally, the child’s mother testified that the child ran into the house screaming and crying as soon as she got off the bus, and that the child’s underwear had been pulled down and were bunched up inside the leg of her pants. The emergency room doctor found redness and a sore on the child’s genital area that he believed were the result of external trauma, i.e., touching. People v Hernandez, 2016 NY Slip Op 08396, CtApp 12-15-16

 

CRIMINAL LAW (THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EVIDENCE (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/HEARSAY (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EXCITED UTTERANCES (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)

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NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA.

The Court of Appeals determined defendant’s failure to move to withdraw his plea or object precluded review:

Defendant’s challenges to the validity of his guilty plea are unpreserved and unreviewable by this Court. Defendant had “an opportunity to seek relief from the sentencing court” by moving to withdraw his plea based on his alleged justification defense, and therefore the “narrow exception to the preservation requirement” does not apply … . Defendant said nothing during the plea colloquy or the sentencing proceeding that negated an element of the crime or raised the possibility of a justification defense, and therefore People v Lopez (71 NY2d 662, 666 [1988]) is inapplicable.

Defendant’s further contention that the court failed to advise him of the immigration consequences of his plea is also unpreserved for appellate review. The court informed defendant during the plea colloquy that if he was not a citizen, he could face deportation as a result of his guilty plea. Defendant therefore was informed before he pleaded guilty of the possibility that he could be deported as a result of his plea, and if he was confused about that issue, he was obligated to move to withdraw his plea on that ground before the sentencing court … . People v Pastor, 2016 NY Slip Op 08399, CtApp 12-15-16

 

CRIMINAL LAW (NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, NARROW EXCEPTIONS TO PRESERVATION REQUIREMENT DID NOT APPLY, DEFENDANT DID NOT MOVE TO WITHDRAW HIS PLEA)

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DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT’S INVOLUNTARY DEPORTATION.

The Court of Appeals determined defendant's direct appeal should not have been dismissed based upon defendant's deportation, even though there was no relationship between the matter on appeal and the deportation:

We recently … held “that [People v] Ventura [(17 NY3d 675 [2011])] prohibits intermediate appellate courts from dismissing pending direct appeals due to the defendant's involuntary deportation, regardless of the contentions raised by the defendant on appeal” … . We further explained that “[o]ur holding in Ventura did not depend upon any causal relationship between the defendant's conviction and deportation” … .

Here, the Appellate Term erred as a matter of law insofar as it granted the People's motion to dismiss defendant's direct appeal from his judgment of conviction because he was involuntarily deported. This error requires reversal. People v Morales, 2016 NY Slip Op 08397, CtApp 12-15-16

CRIMINAL LAW (DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/APPEALS (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)/DEPORTATION (CRIMINAL LAW, DIRECT APPEAL CANNOT BE DISMISSED BASED UPON THE APPELLANT'S INVOLUNTARY DEPORTATION)

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NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT.

The Court of Appeals determined there was insufficient evidence demonstrating defendant waived his right to be present at his resentencing:

A defendant has the right to be present at all material stages of trial … , including sentencing (see CPL 380.40 [1]). We recently held that a defendant who has been convicted of a felony may waive his right to be present at sentencing, but must do so “expressly” … . The same principle applies in resentencing. The People do not contend otherwise, but insist that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf. Here, however, there is no record of any form of express waiver by defendant himself, whether oral or in writing, and, thus, the issue raised by the People is not presented. Nor in this case can waiver or forfeiture of the right to be present be inferred from defendant’s actions or inaction … . Accordingly, defendant did not validly waive his right to be present. People v Stewart, 2016 NY Slip Op 08398, CtApp 12-15-16

CRIMINAL LAW (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/SENTENCING (NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)/WAIVER (CRIMINAL LAW, NO EVIDENCE DEFENDANT EXPRESSLY WAIVED HIS RIGHT TO BE PRESENT AT RESENTENCING, WAIVER BY COUNSEL NOT SUFFICIENT)

DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER.

The Second Department, reversing Supreme Court, determined defendant, who had just turned 14 at the time of the robbery, should have been adjudicated a youthful offender. The defendant had been placed in a program called “Project Redirect” which, had he successfully completed it, would have resulted in dismissal of the felony. Defendant, however, did not successfully complete the program:

“The youthful offender provisions of the Criminal Procedure Law emanate from a legislative desire not to stigmatize youths . . . with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals” … . Here, the evidence before the court showed that the defendant participated with a group of other youths in a single robbery at an age when he was barely capable of being held criminally responsible for his conduct (see Penal Law § 30.00). Although the defendant did not fully comply with the requirements of the “Project Redirect” program, there is no indication in the record that he is incapable of rehabilitation. Indeed, no further criminal conduct was alleged during that time. Under these circumstances, in view of the defendant’s tender years, background, and lack of juvenile or criminal record, the interest of justice would be served by relieving the defendant from the onus of a criminal record … . People v Darius B., 2016 NY Slip Op 08371, 2nd Dept 12-14-16

CRIMINAL LAWDEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER/YOUTHFUL OFFENDER DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER)

 

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SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63.

The First Department, over an extensive dissent, determined that fraud-related actions against defendant Credit Suisse (stemming from the sale of residential mortgage-backed securities [RMBS]) were governed by the six-year, not three-year statute of limitations. The actions were brought pursuant to the Martin Act and Executive Law 63(12). Those statutes were deemed to have codified common law causes of action. Therefore the six-year statute (CPLR 213), not the three-year statute (CPLR 214) applies:

Where claims are “to recover upon a liability . . . created or imposed by statute” (CPLR 214[2]), and the liability, although akin to common-law causes, “would not exist but for [the] statute” … , the three-year statute of limitations of CPLR 214(2) applies … . In contrast, where a statute “merely codifies and affords new remedies for what in essence is a common-law … claim[,]” CPLR 214(2) does not apply and “the Statute of Limitations for the statutory claim is that for the common-law cause of action which the statute codified or implemented”(id. at 208).

In the complaint, the Attorney General alleges, inter alia, that defendants’ fraud was their failure to abide by their representations that they had carefully evaluated and would continue to monitor the quality of the loans underlying their RMBS, and that they would encourage loan originators to implement sound origination practices. Instead, defendants routinely ignored defects discovered in their due diligence reviews and did not seek to influence originators to utilize appropriate origination practices, choosing instead to misuse their quality control process to obtain significant monetary settlements from originators, which defendants improperly kept for themselves. People v Credit Suisse Sec. (USA) LLC, 2016 NY Slip Op 08339, 1st Dept 12-13-16

 

CIVIL PROCEDURE (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/SECURITIES (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/FRAUD (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/CRIMINAL LAW (SECURITIES FRAUD, SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/EXECUTIVE LAW 63 (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/MARTIN ACT (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)/STATUTE OF LIMITATION (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63),RESIDENTIAL MORTGAGE-BACKED SECURITIES (SIX YEAR STATUTE OF LIMITATIONS APPLIES TO FRAUD ACTIONS AGAINST DEFENDANT BANK RELATING TO THE SALE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES BROUGHT PURSUANT TO THE MARTIN ACT AND EXECUTIVE LAW 63)

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STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE.

The First Department determined that a statement by an unidentified bystander, audible on the 911 call, was properly admitted as an excited utterance. The court noted that another judge, who became ill, had ruled the statement inadmissible. Because it was an evidentiary ruling, it was not subject to the law of the case doctrine:

The court providently admitted, as an excited utterance, the statement of an unidentified bystander, audible on the 911 call made by one of the victims, that implicated defendant. All of the circumstances — most significantly that the statement was made immediately after the shooting — established a strong likelihood that the declarant observed the shooting … .

Although a contrary ruling on the excited utterance issue had been made by a previous judge, who presided over part of jury selection but was unable to continue because of illness, this circumstance did not foreclose the successor judge’s ruling by operation of the law of the case doctrine. The ruling was evidentiary and did not fall within the ambit of that doctrine (see People v Evans , 94 NY2d 499 [2000]). Defendant does not dispute that this was the type of ruling that, under Evans , may be revisited by a successor judge in a retrial. We see no reason to apply a different rule where there are successive judges in the same trial … . People v Cummings, 2016 NY Slip Op 08298, 1st Dept 12-8-16

CRIMINAL LAW (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EVIDENCE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EXCITED UTTERANCE  (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/HEARSAY (EXCITED UTTERANCE, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE DOCTRINE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/CIVIL PROCEDURE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)

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