You are here: / Criminal Law
,

FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to an adverser inference jury instruction based upon the failure to preserve surveillance videos:

We agree with defendant that the court erred in refusing to give an adverse inference charge based on the People's failure to preserve surveillance tapes … . Defendant used reasonable diligence in requesting those tapes, which captured “evidence that [was] reasonably likely to be of material importance” …, i.e., a video in the area where the crime occurred, from cameras operated by the City of Rochester Police Department.

We respectfully disagree with our concurring colleague that the State's duty to preserve surveillance videos is not triggered until a request has been made by the defendant. People v Butler, 2016 NY Slip Op 04512, 4th Dept 6-10-16

CRIMINAL LAW (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/EVIDENCE (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)

,

RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY.

The Fourth Department, remitting the case, determined a Rodriguez hearing was necessary to determine whether a witness’s single photo identification of the defendant was confirmatory:

We agree with defendant that, during the suppression hearing, the court erred in precluding defendant from cross-examining the police investigator on the issue whether “Witness #1” was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness “merely confirmatory” … . Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing … , we conclude that the court’s error during the suppression hearing renders a Rodriguez hearing necessary in this case … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a hearing to determine whether the identification by the subject witness was truly confirmatory in nature … and, if the court determines that the identification was not confirmatory, it must further determine whether the single photo identification procedure employed with the subject witness was unduly suggestive … . People v Hoffman, 2016 NY Slip Op 04508, 4th Dept 6-10-16

CRIMINAL LAW (RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/EVIDENCE (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/IDENTIFICATION (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)

,

ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED.

The Fourth Department, reversing defendant's conviction in this 30-year-old domestic murder case, determined hearsay evidence of threats allegedly made by the defendant against the victim were improperly admitted for the truth of the matters asserted. While evidence of threats made to the victim may be admissible under Molineux, such evidence must be in admissible form:

Citing Molineux and other like cases, including People v Alvino (71 NY2d 233), the People argue that evidence of defendant's prior threats and physical abuse of the victim were highly relevant for various nonhearsay purposes, such as establishing background information, revealing the state of mind of the victim and defendant, and demonstrating his motive and intent to kill the victim. As defendant correctly points out, however, there is no Molineux exception to the rule against hearsay. It may be true that evidence that defendant beat and threatened to kill the victim is admissible under a Molineux theory, but such evidence must still be in admissible form. For instance, a witness could testify that he or she witnessed defendant assault the victim, or heard defendant threaten the victim. That is not hearsay. It is hearsay, however, for a witness to testify that someone else told him or her that defendant beat or threatened the victim. People v Meadow, 2016 NY Slip Op 04505, 4th Dept 6-10-16

CRIMINAL LAW (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/EVIDENCE (CRIMINAL LAW, ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/PRIOR CRIMES AND BAD ACTS (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/MOLINEUX EVIDENCE (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)

,

DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to a Wade hearing to determine the reliability, as opposed to the suggestiveness, of an identification:

Here, following the drug transaction, the undercover officer did not observe defendant again until the trial, which was approximately a year and a half after the transaction. That lapse of time is in stark contrast to the typical situation where an undercover officer identifies the arrestee at the police station contemporaneously with the drug transaction … .

While we recognize that a “Wade hearing” is often linked, nearly exclusively, with the concept of “suggestiveness,” we conclude that a defendant is entitled to CPL 710.30 (1) (b) notice and the opportunity to move to suppress identification testimony pursuant to CPL 710.60 in order to test the reliability of such testimony … . While “suggestiveness” may play an important role in the reliability analysis, it is not the exclusive criterion. The list of criteria involved in making a reliability determination may include, but is not limited to: the lapse of time between the criminal transaction and the arrest, the opportunity to observe the suspect during the transaction, the duration of the interaction, and the facts and circumstances of the interaction with the suspect. It is well settled that “the mere labelling of an identification as confirmatory' will not obviate the need for Wade hearings. Case-by-case analyses of the facts and circumstances in each case remains necessary” … . “Comprehensive analysis, not superficial categorization, ultimately governs” … . People v Reeves, 2016 NY Slip Op 04502, 4th Dept 6-10-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/IDENTIFICATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/WADE HEARING DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)

,

PROSECUTOR’S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION.

The Fourth Department determined the prosecutor's misstatement concerning the length of post-release supervision did not require reversal because defendant had ample opportunity to raise an objection to preserve the error but did not do so:

Although the prosecutor initially misstated the period of postrelease supervision prior to the plea allocution and the court failed to mention postrelease supervision during the allocution, defendant was aware that the sentence included a postrelease supervision component at the time of the allocution, the court immediately thereafter confirmed the correct agreed-upon sentence, and neither defendant nor defense counsel objected to the period of postrelease supervision or otherwise indicated that there was any misunderstanding with regard to its length. People v Chant, 2016 NY Slip Op 04544, 4th Dept 6-10-16

CRIMINAL LAW PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/APPEALS (CRIMINAL LAW, PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/POST-RELEASE SUPERVISION PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)

PEOPLE’S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT.

The Fourth Department vacated defendant's plea to a misdemeanor (as a reduced charge) and dismissed the indictment because the People did not take any of the steps required by Criminal Procedure Law 210.20(6):

County Court granted defendant's motion to review the grand jury minutes and, upon that review, concluded that the evidence before the grand jury was not legally sufficient to support [promoting prison contraband first degree] but was sufficient to support the lesser included offense of promoting prison contraband in the second degree. Defendant then pleaded guilty to the lesser included offense.

“CPL 210.20 (6) provides that when a court decides to reduce a count contained in an indictment [to a misdemeanor] on the ground that it is not supported by legally sufficient evidence, the People do one of the following: (1) accept the court's order and file a prosecutor's information containing the reduced charge; (2) re-present the [higher count] to a grand jury; or (3) appeal the court's order” … . Here, however, the People did not take any of those three actions, and defendant pleaded guilty to the reduced charge. Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' ” … , the plea must be vacated and the indictment dismissed … . People v Haigler, 2016 NY Slip Op 04584, 4th Dept 6-10-16

CRIMINAL LAW (PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)/ACCUSATORY INSTRUMENT (CRIMINAL LAW, PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQUIRED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)

, ,

PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL.

The Third Department, reversing the conviction, determined preclusion of defendant’s medical evidence in this driving while intoxicated case was an abuse of discretion and the prosecutor’s cross-examination defendant and summation were improper:

“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” … . … Here, County Court’s own inquiry readily identified measures to alleviate any prejudice to the People … . Since a less drastic remedy was readily available, we conclude that the outright preclusion of this evidence was an abuse of discretion. …

… During cross-examination, the prosecutor utilized documentation provided by the defense to question defendant as to his winning an Iron Man … and his being recommended for enrollment in the US Army Ranger School … . Certainly this questioning was an accurate portrayal of defendant’s physical fitness prior to being injured during his military service and fair game to a point as to whether defendant was capable of performing the field sobriety tests. The portrayal, however, disregards defendant’s actual medical condition as shown in the precluded medical records. This discrepancy came to a head during summation, where the prosecutor stated, “I just didn’t really know what to make” of defendant’s claimed impairments. She continued, “I’m surprised” given defendant’s Iron Man award, and concluded, “I don’t understand what happened . . . when he couldn’t perform a standardized field sobriety test. It just doesn’t make any sense to me.”

A prosecutor may not, even during summation, express his or her personal opinion challenging the veracity of the evidence … . To express personal surprise as to defendant’s claim of incapacity, while in possession of defendant’s medical records, was disingenuous and improper.  People v O’Brien, 2016 NY Slip Op 04471. 3rd Dept 6-9-16

CRIMINAL LAW (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)

,

MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Third Department determined defendant's motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing:

To establish entitlement to a hearing, a defendant must demonstrate that “non-record facts set forth in [a] CPL article 440 motion . . . are material and [that], if established, they would entitle him [or her] to relief” … . Defendant's most significant sworn allegation is that counsel failed to watch the entire recording of his interview with law enforcement — or to read the entire transcript of that interview — prior to waiving any challenge to its admissibility and making assurances to the jury during opening remarks as to the contents of that recording. Notably, defendant's father also submitted a sworn statement suggesting that counsel may not have been familiar with the contents of the recorded police interview. Further, defendant made factual allegations concerning the circumstances surrounding that interview that would, if credited, support a finding that it was, at least in part, a custodial interrogation, which is relevant because a strategic decision whether to seek suppression would have required being sufficiently familiar with the contents of that recording … . Defendant also alleged a number of specific deficiencies in counsel's assistance during the plea bargaining and trial stages which, if credited, may entitle him to relief … , including that counsel failed to timely convey a plea offer … . Defendant further avers that counsel made unqualified assurances regarding a favorable outcome if he went to trial and made specific assurances concerning the sentence that would be imposed if he were convicted after trial. In regard to counsel's pretrial actions, defendant averred that, but for counsel's false assurances and inadequate representation, he would have accepted a plea deal. Taken as a whole, we find that defendant provided sufficient sworn, material statements in support of his motion that, if credited, would establish that he received less than meaningful representation … . People v Sposito, 2016 NY Slip Op 04467, 3rd Dept 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED.

The Third Department determined the failure to grant defendant's for cause challenge to a juror required reversal:

During the course of jury selection, prospective juror No. 15 expressed concern regarding a potential witness's prior criminal “track record.” After initially indicating that he might be influenced “greatly” by a witness's criminal record, County Court explained to prospective juror No. 15 — and the rest of the panel — that the jury could take into consideration a witness's prior criminal conviction in assessing whether the jury believed the testimony offered by that witness. When asked by County Court whether he could follow the court's instruction on that point, prospective juror No. 15 replied, “Oh, yes, yes.” Upon further inquiry by defense counsel, however, prospective juror No. 15 explained that if he were to learn that defendant [*5]previously had engaged in the same or similar offenses as those charged in the indictment, he “might be swayed” by what he would view “as a continuous track record.” When asked how such knowledge would affect his thinking, prospective juror No. 15 replied, “Negatively.” Defense counsel then inquired, “Negatively towards?,” in response to which prospective juror No. 15 stated, “Guilty.” When defense counsel asked, “Just by virtue of a [prior] record?,” the prospective juror replied, “Yes, of a continuous criminal record, yes.” Other than County Court's general inquiry as to the panel's ability to follow the law as charged by the court, no further questioning of this juror occurred and no unequivocal assurances of impartiality were elicited. People v Cuevas, 2016 NY Slip Op 04468, 3rd Dept 6-9-16

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/FOR CAUSE JUROR CHALLENGE (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)

,

EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED.

The Court of Appeals determined the admission of evidence of an assault on the same victim (A.H.) a week before the charged assault was not error. The defendant acknowledged the evidence was relevant but argued the evidence should have been summarized because it was unduly prejudicial to allow the jury to hear the details:

We cannot say that both defects necessary for reversible error are present in defendant's case, namely, that the trial court abused its discretion by failing to limit A.H.'s testimony and that such error substantially prejudiced the defendant so as to foreclose a determination of harmlessness. … A.H.'s testimony concerned the same parties, and served the nonpropensity purpose of directly explaining her relationship with the defendant and his motive. This is far from a case where “the jury did not require a recital of such a prologue to understand fully what had taken place in the defendant's encounters with [the victim]” … . In the same vein, testimony that the defendant previously attacked A.H. would not have led the jury to marginalize, relegate to the background, or ignore the grievous nature of the New York City assault, which was characterized by physical violence and several failed attempts at immolation.

Under these circumstances, we perceive no error that requires a reversal of defendant's conviction. People v Frankline, 2016 NY Slip Op 04441, CtApp 6-9-16

CRIMINAL LAW (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)/EVIDENCE (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED/MOLINEUX EVIDENCE (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)/UNCHARGED CRIMES (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)

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