You are here: / Evidence
, ,

AN UNAVAILABLE WITNESS’S STATEMENT AGAINST PENAL INTEREST CONFESSING TO THE MURDER FOR WHICH DEFENDANT WAS CONVICTED SHOULD HAVE BEEN ADMITTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, over a two-justice dissent, determined that the statement against penal interest made by a witness in a post-trial CPL article 440 hearing should have been admitted at trial. The witness essentially confessed to the shooting for which defendant was convicted. At the time of the trial, the witness was unavailable because he asserted his Fifth Amendment privilege against self-incrimination. The trial judge excluded the statement against penal interest on the ground that circumstances independent of the statement itself did not support the statement’s truthfulness and reliability :

… [W]e conclude, based on the circumstances of the witness’s CPL article 440 testimony and the trial record, from which that testimony was absent, that “there is ‘a reasonable possibility that the [testimony] might be true’ ” … . Initially, the witness’s description of the third party shooting at the window from the backyard when the light went on is consistent with the female victim’s testimony that she was shot immediately after she turned on the light and the physical evidence that the shots were fired through the rear window. The witness testified that the third party picked up a .38 firearm, which is consistent with the projectiles recovered from the shooting, from a nearby location just prior to the shooting. The witness’s description of running down the driveway with the third party immediately following the shots, across the street, and then over a backyard fence coincides with a female neighbor’s description in her trial testimony of two men jumping over her back fence. The testimony of a law enforcement witness also corroborated the witness’s account of the two prior robberies described by the witness during his CPL article 440 testimony. Further, there is no evidence that the witness had a familial or close relationship with defendant or other “obvious motive for [the witness] to falsely implicate himself” … .

In light of the more lenient standard applied to exculpatory statements, we conclude that the initial threshold of reliability is met, i.e., that there is a “reasonable possibility that the statement might be true” … . People v Williams, 2026 NY Slip Op 01881, Fourth Dept 3-27-26

Practice Point: Consult this decision for the criteria for admission of a statement against penal interest.

 

, ,

ALTHOUGH THE DEFENDANT WAS 33 YEARS OLD AND THE JURY OBSERVED HIM, THE PEOPLE’S FAILURE TO PROVE HE WAS OVER 18 AT THE TIME OF THE CRIMES REQUIRED REVERSAL AND DISMISSAL OF TWO COUNTS; THE ERROR WAS NOT PRESERVED; THE COURT CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions of predatory sexual assault of a child and criminal sexual act first degree, determined that, although defendant was in fact 33 years old, the People failed to prove that he was over 18 at the time of the crimes. The errors was not preserved. The appellate court exercised its interest of justice jurisdiction to consider the issue:

Here, two counts in the indictment include an age element that required the People to establish that defendant was at least 18 years old at the time of the crimes in June 2020 … . Defendant was in fact 33 years old in June 2020, and the jury naturally had the opportunity to observe his appearance during the trial in 2021, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . We therefore modify the judgment by reversing those parts convicting defendant of predatory sexual assault against a child under count 1 of the indictment and criminal sexual act in the first degree under count 5 of the indictment and dismissing those counts of the indictment. People v Jones, 2026 NY Slip Op 01882, Fourth Dept 3-27-26

Practice Point: If being over 18 at the time of the crime is an element of the offense, the People must prove that element. Here the defendant was 33, but the failure to prove he was over 18 was reversible error. This error will be considered by an appellate court even where it has not been preserved for appeal.​

 

,

PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN AN ELECTRICAL EXPLOSION CAUSED HIM AND THE LADDER TO FALL TO THE GROUND; THERE WAS NO EVIDENCE THE LADDER WAS DEFECTIVE; BECAUSE PLAINTIFF DID NOT PRESENT ANY EVIDENCE THAT A SAFETY DEVICE WOULD HAVE PREVENTED THE FALL, HE WAS NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, determined plaintiff in this ladder-fall case was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was standing on an A-frame ladder when a wire fed in by another worker struck and electric panel causing an explosion. Plaintiff and the ladder fell to the floor. The evidence did not demonstrate the ladder was defective. And plaintiff did not present any evidence that additional safety devices would have prevented the ladder from falling over:

Nazario applies … . … [T]here the plaintiff was not entitled to summary judgment due to the presence of several triable issues of fact (see Nazario, 28 NY3d at 1055). The record … lacked evidence concerning whether the plaintiff “should have been provided with additional safety devices and [whether] the failure to do so was a contributing cause of the accident” … . Summary judgment was appropriately denied, … even though the plaintiff “hung onto the ladder” and the ladder “fell to the ground” with the plaintiff “because it was not secured to something stable” … . As in Nazario, plaintiff here failed to submit any evidence—whether by his own testimony or through an expert opinion—addressing gravity-related safety devices or precautions that might have prevented his fall … . Arias v Brooks Holdings Corp., 2026 NY Slip Op 01841, First Dept 3-26-26

Practice Point: If a plaintiff in a ladder-fall case presents no evidence the ladder itself was defective, summary judgment on the Labor Law 240 (1) cause of action will not be granted unless the plaintiff presents evidence that an additional safety device (which was not provided) would have prevented the fall.

 

,

THE ICY CONDITION WAS CREATED BY “POCKETS OF FREEZING RAIN” FROM MIDNIGHT TO 3:45 AM; THERE WAS NO “STORM;” THE “STORM-IN-PROGRESS” DOCTRINE SHOULD NOT HAVE BEEN APPLIED IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing the nonjury verdict in the Court of Claims in this parking-lot slip and fall cause, over a dissent, determined the defendant state had actual and constructive knowledge of the icy condition and the storm-in-progress doctrine did not apply:

​The evidence establishes that defendant had actual notice of the icy conditions caused by the pockets of freezing rain and called in an employee to take appropriate measures to correct the dangerous condition by implementing defendant’s usual precautions of sanding/salting all paved areas accessible to the sander trucks. Even assuming that the record was insufficient to establish actual notice, we are satisfied that defendant had constructive notice of the dangerous condition in the location of claimant’s slip and fall. Based on the expert’s testimony of icy conditions forming through 3:45 a.m., defendant should have been aware of the slippery conditions on untreated surfaces between approximately 12:00 a.m. and 2:00 a.m., the time when defendant’s employee was performing “multiple” salting and sanding passes on the facility’s roads for “safety,” approximately five to seven hours before claimant’s fall, which is a sufficient time to establish constructive notice … . * * *

… [T]he event in question amounted to “pockets of freezing rain” that fell from approximately midnight until 3:45 a.m. and caused a glaze of ice measuring .05 to 0.1 inches. Defendant begs the question when it immediately argues that it is entitled to a “reasonable period of time” from 3:45 a.m. to address the condition. The threshold question is the applicability of the doctrine in the first instance. While it may be true that there is no need to establish the existence of a major winter event in order to apply the doctrine, it is equally true that there must be some sort of ongoing hazardous weather condition, i.e., a “storm” that amounts to more than an “appreciable accumulation” … . The storm in progress doctrine is not to be applied whenever any type of inclement weather exists and, given the unrefuted testimony of claimant’s expert meteorologist, it has no place in this litigation. Powers v State of New York, 2026 NY Slip Op 01833, Third Dept 3-26-26

Practice Point: In order for the storm-in-progress doctrine to be applicable, there must have been a “storm.” Here “pockets of freezing rain” did not constitute a “storm.”

 

, ,

THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence submitted by plaintiff mortgage company to demonstrate it had standing to foreclose was insufficient:

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” … . “The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action” … .

Here, an affidavit of Teresa Swayze, an assistant vice president of the plaintiff’s servicing agent, submitted in support of the plaintiff’s motion for leave to renew, was insufficient to establish that the plaintiff possessed the note at the time this action was commenced. Swayze averred that the note was physically delivered to the plaintiff prior to the commencement of this action and attached to her affidavit a copy of the note with an allonge endorsed in blank. However, Swayze failed to submit the business record on which she relied for her assertion that the note was physically delivered to the plaintiff prior to the commencement of this action … . Moreover, Swayze’s affidavit did not demonstrate that she had personal knowledge of whether the plaintiff possessed the note at the time of the commencement of this action … . Federal Natl. Mtge. Assn. v Ayoola, 2026 NY Slip Op 01772, Second Dept 3-25-26

 

, ,

THE DAY CARE PROVIDER TESTIFIED HER BACK WAS TURNED WHEN INFANT PLAINTIFF FELL OFF THE SLIDE; THE DAY CARE CENTER’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENT-SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cay-care-center defendants’ motion for summary judgment on the negligent-supervision cause of action should not have been granted. The complaint alleged infant plaintiff fell off a slide:

Day care providers are under a duty to adequately supervise the children in their charge and may be held liable for foreseeable injuries proximately related to a lack of adequate supervision … . “In general, the duty of a day care/preschool provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances” … . Generally, whether supervision was adequate and whether inadequate supervision was the proximate cause of a child’s injury are questions of fact … .

Here, the defendants failed to demonstrate, prima facie, that they provided adequate supervision to the plaintiff or that a lack of adequate supervision was not a proximate cause of the plaintiff’s injuries … . The defendants submitted, among other things, an expert affidavit from a child supervision expert and a transcript of the deposition testimony of the care provider present at the time of the plaintiff’s injury. The care provider testified that she was trained to always keep the children in her sight while they are in the gym. Moreover, the defendants’ expert emphasized that a teacher’s position should allow the teacher to clearly see the entire play area and the children. However, despite the care provider’s admitted familiarity with these practices, she testified that she was occupied tying another child’s shoe with her back turned when the plaintiff was on the playset with her brother and that she did not see the plaintiff until the plaintiff was on the ground. The defendants thereby failed to eliminate all triable issues of fact as to negligent supervision … . D.O. v Economic Opportunity Council of Suffolk, Inc., 2026 NY Slip Op 01797, Second Dept 3-25-26

Practice Point: A day-care provider is obligated to keep the play area and the children in sight at all times. Here the day-care provider had turned her back when infant plaintiff fell off the slide. That raised a question of fact precluding summary judgment in favor of defendant on the negligent-supervision cause of action.

 

,

THE FACT THAT DEFENDANT WAS PARKED IN A HIGH CRIME AREA NEAR AN APARTMENT COMPLEX AND THE FILED “TRESPASS AFFIDAVIT” BY AN APARTMENT PROPERTY MANAGER, REQUESTING THAT ANYONE ON THE PROPERTY WHO WAS NOT A TENANT BE ARRESTED FOR TRESPASS, DID NOT PROVIDE THE POLICE WITH A “PARTICULARIZED” REASON FOR APPROACHING THE DEFENDANT TO REQUEST INFORMATION; THE COCAINE AND HANDGUN SEIZED UPON THE DEFENDANT’S ARREST SHOULD HAVE BEEN SUPPRESSED; THE INDICTMENT WAS DISMISSED (FOURTH DEPT).

The Fourth Department. suppressing evidence seized upon defendant’s arrest and dismissing the indictment. over a two-justice dissent, determined that the police did not have particularized information which justified approaching defendant’s car which was parked near an apartment complex. There was a “trespass affidavit” by an apartment property manager on file with the police department which requested that any person who was not a tenant be arrested for trespass. The police approached defendant, who, it turned out, was a tenant. But based on an officer’s observation of a bag containing a tan substance inside the car, the officers ordered defendant out the car, searched the defendant’s person and car, and seized cocaine and a handgun:

… [T]he officer’s testimony that the apartment complex was in a high-crime area did not justify approaching defendant. The trespass affidavit failed to afford the officers any more particularized reason for approaching defendant. Therein, although the property manager for the apartment complex stated generally that there “was reason to believe that persons are congregating on the . . . property . . . [who] do not reside at said property,” there was no allegation in the trespass affidavit that the property was, for example, “plagued by illegal drug trade” or gang violence … . Indeed, the property manager did not specify any prior or ongoing incidents of criminal activity on the premises, but instead expressed a general belief that persons might be “congregating on the property,” which is a multi-building residential apartment complex, “without [the property manager’s] permission.” The property manager nonetheless also acknowledged in the trespass affidavit that non-residents were often permissibly on the property, such as guests of tenants. Thus, defendant was not “parked at an establishment around which criminal activity was known to occur” … . Further, the officers observed defendant momentary idling in a vehicle in a publicly accessible parking lot on a summer evening outside a residential apartment complex … , not “in a private space restricted by signage and a lock” … . Thus, nothing in the officers’ observation of defendant’s conduct, even considered in light of the assertions in the trespass affidavit, “provided a particularized reason to request information” … . People v Robinson, 2026 NY Slip Op 01693, Fourth Dept 3-20-26

Practice Point: Here the police did not have a “particularized reason” for approaching defendant’s parked car near an apartment complex. The facts that (1) the defendant was parked in a high crime area and (2) an apartment-complex property manager had filed a “trespass affidavit” with the police was not enough to allow the police to approach the defendant to request information.

 

, , ,

A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

,

MOTHER’S MENTAL ILLNESS AND HER REQUEST FOR RESPITE CARE BECAUSE SHE WAS OVERWHELMED DID NOT SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE OF AN IMMINENT RISK TO THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence of mother’s mental illness did not support the finding that she neglected the children:

The court’s determination that the mother neglected the subject children was not supported by a preponderance of the evidence … . Neglect occurs when a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as the result of the parent’s failure to “exercise a minimum degree of care” (Family Ct Act § 1012 [f][i]). “While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect, unless it is shown that the parent’s condition resulted in imminent danger to the child” … .

Although the mother testified that she was diagnosed with anxiety and depression, the record does not support a finding of “a link or causal connection” between the mother’s diagnoses and any impairment or imminent danger of impairment to the children … . The sole evidence of actual impairment was a burn on one of the children, and the uncontroverted testimonial and documentary evidence establish that the injury was accidental and that the mother provided care … .

Further, petitioner failed to establish how the mother’s mental health diagnoses caused the children to be in imminent danger of being impaired. The mother openly acknowledged her mental health diagnoses and treatment … . The record demonstrates that the mother was at all relevant times under the care of a psychiatrist and was compliant with the psychiatrist’s prescribed medications. ….

The mother’s request for respite care was also not a proper basis for finding imminent risk. … [S]he was feeling overwhelmed with caring for her three children and was unwilling or unable to care for and supervise them any longer. The miscellaneous information section states that the mother said she did not want her children any longer and wanted ACS to take them … because she was feeling overwhelmed. … The mother explicitly testified that she was not afraid she would “do something” to hurt her children or herself. Matter of Ja.W., 2026 NY Slip Op 01623, First Dept 3-19-26

Practice Point: Here there no evidence that mother presented an imminent risk of impairment to her children. Mother’s acknowledged mental illness, for which she was receiving treatment, and her request for respite care because she was feeling overwhelmed did not amount to neglect.

 

,

THE ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR POSSESSION OF DRUGS TO PROVE CONSTRUCTIVE POSSESSION OF DRUGS FOUND IN A SHARED APARTMENT WAS REVERSIBLE ERROR; THE PRIOR POSSESSION CONVICTION STEMMED FROM DRUGS FOUND IN DEFENDANT’S VEHICLE, TWO YEARS BEFORE; THEREFORE THE PRIOR CRIME WAS NOT LOGICALLY CONNECTED TO ANY ISSUE IN THE CASE; THE EVIDENCE WAS ERRONEOUSLY ADMITTED SOLELY TO PROVE DEFENDANT’S PROPENSITY TO POSSESS DRUGS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the evidence of defendant’s prior possession of drugs found in his vehicle two years before was erroneously admitted to prove defendant’s constructive possession of drugs found in a shared apartment:

Generally, evidence of a defendant’s prior possession of drugs is inadmissible at trial to show their intent to sell drugs or knowing possession of drugs on another occasion … . This follows from our longstanding Molineux rule, which provides that “evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” … . When evidence of prior uncharged crimes or misconduct is logically connected to some specific material issue in the case—such as intent, motive, knowledge, common scheme or plan, or identity of the defendant—the evidence falls under an exception to the Molineux rule, and a court may admit the evidence if its probative value outweighs its potential for prejudice to the defendant … .

Here, because the People’s evidence of a prior incident involving defendant’s possession of drugs was not logically connected to any specific material issue in this drug possession case, apart from defendant’s propensity for possessing drugs, the trial court erred in admitting that evidence. Inasmuch as this error was not harmless, we reverse and remit for defendant to receive a new trial. * * *

The main issue at trial was whether defendant had constructive or knowing possession of the contraband distributed throughout three rooms in the apartment. We agree with the dissenting Justices below that defendant’s possession of cocaine in his car in 2017 was not relevant to that issue. The two incidents involved different locations, different circumstances, different theories of possession, and took place around two years apart. People v Henderson, 2026 NY Slip Op 01627, CtApp 3-19-26

Practice Point: Here defendant’s conviction for possession of drugs found in his vehicle was admitted to prove he had constructive possession of drugs found in a shared apartment two years later. Because the prior crime evidence was not connected to any issue in the case on trial other than defendant’s propensity to possess drugs, it was reversible error to admit it.

 

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