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IN A RARE REVERSAL OF A BENCH TRIAL ON EVIDENTIARY GROUNDS, THE 1ST DEPT DETERMINED FOUR OUT-OF-COURT STATEMENTS ALLEGEDLY MADE BY THE VICTIM IN THIS SEXUAL-OFFENSE CASE SHOULD NOT HAVE BEEN ADMITTED UNDER THE “EXCITED UTTERANCE” OR “PROMPT OUTCRY” THEORIES; THE COURT NOTED THAT ONLY THE FACT OF THE COMPLAINT, NOT THE ACCOMPANYING DETAILS, ARE ADMISSIBLE AS A “PROMPT OUTCRY” (FIRST DEPT). ​

The First Department, reversing defendant’s conviction after a nonjury trial, determined four out-of-court statements made by the alleged victim in this sexual-offense case should not have been admitted a “excited utterances.” Although two of the statements were “prompt outcries,” under that theory only the fact of a complaint, not the details (as provided here) are admissible:

… [T]he trial court admitted four statements made by the alleged victim following the incident, reasoning that they were admissible both as excited utterances and prompt outcries. This was error. The alleged victim’s out-of-court statements did not qualify as excited utterances and should not have been admitted for their substance under that hearsay exception …  . Although two of the four statements were correctly admitted under the alternative theory that they constituted prompt outcries, under this exception, “only the fact of a complaint, not its accompanying details” is admissible … . It is clear from the record that the trial court considered all four hearsay statements for their substance, and thus, there can be no presumption that the court, as the finder of fact, considered only competent evidence … .. Given the People’s strong reliance on the hearsay statements to prove its case, and the court’s indication that it intended to review the written statement that was in evidence during deliberation, we cannot say that “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and that the error was therefore harmless … . People v Gideon, 2022 NY Slip Op 01746, First Dept 3-15-22

​Practice Point: In this nonjury sexual-offense prosecution the court erred by admitting out-of-court statements by the alleged victim under the “prompt outcry” theory. Only the fact of the complaint is admissible, not the accompanying details.

 

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THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge should not have relied upon evidence given at a material witness hearing, from which the defendant was properly excluded, at a subsequent Sirois hearing at which the material witness did not testify:

At [the material witness] hearing, the witness … testified that she had been threatened by defendant, the codefendant, and others in an attempt to prevent her from testifying at trial. Although the court granted the People’s application for a material witness order and set bail to ensure the witness’s availability, the next day the People requested a Sirois hearing and sought a determination that the witness had been made constructively unavailable to testify at trial by threats attributable to defendant … . …

A defendant generally has no constitutional right to be present at a material witness hearing … ; however, a “[d]efendant’s absence from [a Sirois] hearing[] could have a substantial effect on his [or her] ability to defend” … . Here, although there is no dispute that the initial material witness hearing was not intended to address any Sirois or other evidentiary issues … , the court erred in relying on the unchallenged testimony taken therein in making its Sirois determination … . Indeed, the court effectively, and erroneously, incorporated the material witness hearing into the subsequent Sirois hearing by expressly relying on that testimony and on its own observations of the witness’s demeanor in making its determination. People v Phillips, 2022 NY Slip Op 01710, Fourth Dept 3-11-22

Practice Point: The judge relied on the witness’s testimony at a material witness hearing, at which defendant was not present, for his ruling in a Sirois hearing, at which the witness did not testify. Defendant was thereby deprived of his right to confront the witnesses against him at the Sirois hearing. New trial ordered.

 

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THE CROSS-EXAMINATION OF A DETECTIVE ABOUT STATEMENTS ATTRIBUTED TO THE VICTIM IN THIS SEXUAL-OFFENSE PROSECUTION SHOULD NOT HAVE BEEN CURTAILED BY THE JUDGE; THE ERROR WAS NOT HARMLESS WITH RESPECT TO SEVERAL COUNTS, BUT WAS DEEMED HARMLESS WITH RESPECT TO OTHER COUNTS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction on several counts, determined the judge’s curtailing of the cross-examination of a detective concerning statements attributed the the victim in this sexual-offense prosecution was not harmless error as to those (reversed) counts:

” ‘Once a proper foundation is laid, a party may show that an adversary’s witness has, on another occasion, made oral or written statements which are inconsistent with some material part of the trial testimony, for the purpose of impeaching the credibility and thereby discrediting the testimony of the witness’ ” … . “To lay the foundation for contradiction, it is necessary to ask the witness specifically whether he [or she] has made such statements; and the usual and most accurate mode of examining the contradicting witness, is to ask the precise question put to the principal witness” … . Here, defendant laid a proper foundation by eliciting testimony from the victim that was inconsistent with the detective’s written report purporting to record the victim’s statement, and the court therefore should have permitted cross-examination of the detective regarding that inconsistency … . …

The testimony of the victim was the only direct evidence supporting count one of the indictment, charging criminal sexual act in the third degree, counts three and four of the indictment, charging sexual abuse in the third degree, and counts six and eight of the indictment, charging endangering the welfare of a child. We conclude that the admissible evidence of guilt with respect to those counts is not overwhelming, and that there is a reasonable possibility that the error in curtailing defense counsel’s cross-examination of the detective may have contributed to defendant’s conviction. People v Kilgore, 2022 NY Slip Op 01709, Fourth Dept 3-11-22

Practice Point: It was error for the judge to curtail the cross-examination of  a detective about statements attributed to the victim in this sexual offense prosecution. The error was deemed reversible with respect to some counts, and harmless with respect to others.

 

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AT THE FRYE HEARING, THE PEOPLE DEMONSTRATED THE ADMISSIBILITY OF THE RESULTS OF DNA ANALYSIS USING THE STRMIX DNA ANALYSIS PROGRAM (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined the Frye hearing sufficiently demonstrated the admissibility of the results of DNA analysis using the STRmix DNA analysis program (STRmix program):

… [T]he People introduced evidence that biological samples were recovered from several locations at the scene of the incident and that those samples were analyzed using the STRmix program, which indicated that defendant’s DNA was contained in those samples. Before trial, the People provided defendant with notice of the results of the tests and the program used to conduct them and, at defendant’s request, the court ordered a Frye hearing concerning that program …. The People introduced evidence at the hearing that the STRmix program had been the subject of numerous peer-reviewed journal articles and had been evaluated and approved by the National Institute of Standards and Technology and by the Erie County Central Police Services Forensic Laboratory before it began using the STRmix program. In addition, the People established that the STRmix program was being used by numerous forensic testing agencies and laboratories in New York, California, the United States Army, Australia, and New Zealand, and that it had been approved by the DNA Subcommittee of the New York State Forensic Science Committee. People v Bullard-Daniel, 2022 NY Slip Op 01707, Fourth Dept 3-11-22

Practice Point: The Frye hearing in this case demonstrated the results of the DNA analysis done using the STRmix DNA analysis program constituted admissible evidence.

 

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THE PEOPLE DID NOT DEMONSTRATE THE ANONYMOUS TIP PROVIDED PROBABLE CAUSE TO BELIEVE DEFENDANT WAS IN THE VEHICLE PURSUED AND STOPPED BY THE POLICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Peopled failed to demonstrate the arresting officers had probable cause to pursue and stop the vehicle form which defendant attempted to flee. The officers were observing the vehicle because of an anonymous tip:

The United States Supreme Court has “recognized . . . [that] there are situations in which an anonymous tip, sufficiently corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’ ” … . However, “[s]ince an anonymous tip ‘seldom demonstrates the informant’s basis of knowledge or veracity,’ it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability” … . The anonymous tip must be reliable, not only “in its assertion of illegality,” but also “in its tendency to identify a determinate person” … . …

The evidence at the suppression hearing established that police officers were dispatched based on an anonymous tip that defendant was in a specific vehicle at a specific location. However, when police responded to the area, neither defendant nor the vehicle was present. Over 3½ hours later, officers observed the vehicle and two individuals inside. The only officer to testify at the suppression hearing admitted that he could not determine whether the occupants of the vehicle were male or female, let alone whether one of them was defendant. Further, the vehicle was not registered to defendant. Nevertheless, the officers activated their emergency lights and attempted to stop the vehicle. People v Ponce, 2022 NY Slip Op 01706, Fourth Dept 3-11-22

Practice Point: An anonymous tip can provide probable cause for a street stop if accompanied by sufficient indicia of reliability, both as to illegality and the identity of the person. Here the People did not demonstrate the anonymous tip was sufficiently reliable.

 

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PURSUANT TO A US SUPREME COURT DECISION WHICH CAME DOWN AFTER DEFENDANT’S CONVICTION, DEFENDANT HAS STANDING TO CHALLENGE THE CELL SITE LOCATION INFORMATION (CSLI) WARRANT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reserving decision and remitting the matter, determined that, based upon a US Supreme Court decision which came down after defendant’s conviction, defendant has standing to challenge the cell site location information (CSLI) warrant:

We agree with defendant … that he has standing to challenge the CSLI search warrant. At the time of the court’s decision, controlling caselaw in this Department held that the acquisition of CSLI was not a search under the State or Federal Constitution because a defendant’s use of a phone “constituted a voluntary disclosure of his [or her] general location to [the] service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties” … . Following defendant’s conviction, the United States Supreme Court decided Carpenter v United States, 138 S Ct 2206, 2217 [2018]), which held that “an individual maintains a legitimate expectation of privacy in the record of his [or her] physical movements as captured through CSLI” … . As a result of the Carpenter decision, defendant is entitled to a determination on the merits regarding his challenges to the CSLI search warrant. People v Ozkaynak, 2022 NY Slip Op 01700, Fourth Dept 3-11-22

Practice Point: The US Supreme Court ruling that defendants have standing to challenge a cell site location information (CDLI) warrant came down after defendant’s conviction in this case. The matter was remitted for a determination of defendant’s suppression motion.

 

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A DETECTIVE WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO; TESTIMONY ABOUT THE “BLINDED” PHOTO ARRAY IDENTIFICATION PROCEDURE WAS PROPERLY ALLOWED; THE DEFENSE CROSS-EXAMINATION ABOUT A WITNESS’S CRIMINAL HISTORY SHOULD NOT HAVE BEEN CURTAILED; ANY ERRORS DEEMED HARMLESS (FOURTH DEPT).

The Fourth Department, finding any evidentiary errors harmless, determined: (1) a detective was properly allowed to identify the defendant in a surveillance video because the People demonstrated the detective had prior contacts with the defendant; (2) testimony about the “blinded” photo identification procedure was properly allowed; and (3) the defense cross-examination about a witness’s criminal history should not have been curtailed by the judge:

We conclude that the court did not abuse its discretion in permitting the challenged testimony because the People presented evidence establishing that the police detective was familiar with defendant based on several prior contacts with defendant over the course of several years. Thus, there “was some basis for concluding that the [police detective] was more likely to identify defendant correctly than was the jury” … . …

Testimony about a photo array procedure, and the array itself, may be admitted where, inter alia, the procedure is ” ‘blinded,’ ” that is, where the person administering the array procedure does not know the suspect’s position in the array (CPL 60.25 [1] [c] [ii]; see CPL 60.30). Here, although the array viewed by the witness was created by the police detective who administered the procedure, the specific procedure conducted was nevertheless blind because the police detective placed three different arrays in envelopes, which he shuffled before having the witness pick one. This procedure is sufficient, in our view, to ensure that, at the time the witness was viewing the array, the police detective did not know the position of defendant in that array … . …

“[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” … . … [W]e conclude that the court erred in limiting defense counsel’s cross-examination regarding the underlying facts of a witness’s prior drug conviction that occurred two months before the shooting at issue here, inasmuch as those facts bore on the witness’s credibility and were not remote or cumulative … . People v Griffin, 2022 NY Slip Op 01698, Fourth Dept 3-11-22

Practice Point: Because the detective had prior contact with the defendant, the detective was properly allowed to identify defendant in a surveillance video.

Practice Point: Testimony about the “blinded” photo array identification procedure was properly allowed.

Practice Point: The defense cross-examination about the witness’s criminal history should not have been curtailed.

 

RESTITUTION IN EXCESS OF THE STATUTORY CAP FOR LOST WAGES WAS IMPROPERLY AWARDED BECAUSE “LOST WAGES” DOES NOT FIT ANY OF THE EXCEPTIONS TO THE CAP RESTRICTION (FOURTH DEPT).

The Fourth Department, modifying County Court, determined the restitution amount which exceeded the statutory cap did not fit into any of the statutory exceptions to the cap restriction. The victim was improperly awarded an amount for lost wages:

… [T]he court erred in imposing restitution and reparation in excess of the statutory cap for the second victim’s past lost earnings because, under the plain meaning of the statute, that form of loss does not fall within the exception to the statutory cap pursuant to Penal Law § 60.27 (5) (b) … . In particular, contrary to the court’s determination, inasmuch as past lost earnings are wages, salary, or other income that the second victim could have, but did not, earn (see Black’s Law Dictionary [11th ed 2019], lost earnings), the excess amount ordered as restitution and reparation for that loss does not constitute reimbursement for “the return of the [second] victim’s property” or equivalent thereof (§ 60.27 [5] [b] …). People v Witherow, 2022 NY Slip Op 01691, Fourth Dept 3-11-22

Practice Point: Restitution for lost wages was improperly awarded because “lost wages” does not fit any of the statutory exceptions to the restitution-cap restriction.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, WITHOUT NOTICE TO THE DEFENDANT, ASSESSED 12 POINTS FOR FAILURE TO ACCEPT RESPONSIBILITY; DEFENDANT ACCEPTED RESPONSIBILITY BY PLEADING GUILTY (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, without prior notice to the defendant, assessed 12 points for failure to accept responsibility in this SORA risk level proceeding. The Fourth Department noted defendant pled guilty to statutory rape. Although defendant stated he thought the 16-year-old victim was 18, the guilty plea was an adequate acceptance of responsibility:

… [I]t is well established that ” ‘[a] defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment’ ” … . As a result, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … . …

… [T]he court erred in assessing him 10 points under risk factor 12, for failure to accept responsibility, given that he pleaded guilty and admitted his guilt … . …

… [D]efendant was not afforded a meaningful opportunity to argue against the override [recommended by the board] or in favor of a downward departure … . People v Ritchie, 2022 NY Slip Op 01635, Fourth Dept 3-10-22

Practice Point: In a SORA risk assessment proceeding, the judge cannot, sua sponte, without notice to the defendant, assess points in a category not recommended by the board.

Practice Point: In a SORA risk assessment proceeding, where a defendant has pled guilty, an assessment of 12 points for failure to accept responsibility is not warranted.

 

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THE PEOPLE’S APPLICATION FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing (modifying) County Court determine the proof submitted by the People did not support the application for an upward departure in this SORA risk assessment proceeding:

… County Court erred in granting the People’s application for an upward departure. The People failed to prove the facts in support of their proffered aggravating factor, including that the defendant engaged in unprotected sexual conduct with the victim, by clear and convincing evidence … . People v Paterno, 2022 NY Slip Op 01470, Second Dept 3-9-22

Practice Point: Any application by the People for an upward departure in a SORA risk assessment proceeding must be supported by clear and convincing evidence. Here the People’s upward departure application alleged defendant had unprotected sex with the 15-year-old victim. The appellate court determined the allegation was not supported by clear and convincing evidence.

 

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