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DEFENDANT HAD BEEN TAKEN DOWN TO THE GROUND AND HANDCUFFED AT THE TIME THE BACKPACK HE WAS WEARING WAS SEARCHED; THE PEOPLE PRESENTED NO EVIDENCE OF EXIGENCY; THE SEARCH WAS THEREFORE UNJUSTIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not demonstrate exigent circumstances which justified the search of the backpack he was wearing. The defendant had been taken down to the ground and handcuffed at the time of the search:

At the suppression hearing, when questioned as to why he patted down defendant and the drawstring backpack, the officer merely responded “[f]or our safety.” * * *

Exigency justifying the search of a container incident to arrest is not established in the absence of some reasonable basis for the belief that the contents of the container might pose a danger to the arresting officers or that there is a legitimate concern for the preservation of evidence which might reasonably be thought to reside within the container … . …

The record does not contain evidence or testimony supporting a determination that the officer had objective reasonable grounds to believe that the drawstring backpack contained contents that would place his safety at risk or that he was concerned that the bag contained evidence that defendant could destroy. Thus, the circumstances did not suggest that any exigency required an immediate search … . People v Collins, 2021 NY Slip Op 06552, First Dept 11-23-21

 

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THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department determined questioning by the police effectively negated the Miranda warnings and questioning continued after defendant invoked his right to counsel. The errors were deemed harmless because the defendant would have been convicted even if the statements had been suppressed:

“Properly administered Miranda rights can be rendered inadequate and ineffective when they are contradicted by statements suggesting that there is a price for asserting the rights to remain silent or to counsel, such as foregoing ‘a valuable opportunity to speak with an assistant district attorney, to have [the] case[ ] investigated or to assert alibi defenses’ ” … . The police officer’s statement here improperly implied to defendant that the interrogation would be his “only opportunity to speak” … , and his advice that providing an explanation would benefit defendant effectively “implied that . . . defendant[‘s] words would be used to help [him], thus undoing the heart of the warning that anything [he] said could and would be used against [him]” … . * * *

… [A]bout 20 minutes into the interrogation, defendant expressly stated that he did not “want to talk about more of this[, i.e., the shooting]. That’s it.” … [D]efendant thereby unequivocally invoked his right to remain silent …  inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Defendant’s responses to the police officers when they resumed the interrogation did not negate his prior unequivocal invocation of his right to remain silent because the police officers failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Marrero, 2021 NY Slip Op 06510, Fourth Dept 11-19-21

 

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THE FACTS THAT THE PARKED CAR IN WHICH DEFENDANT WAS SITTING WITH TWO OTHERS WAS IN A HIGH CRIME AREA AND WAS NOT RUNNING DID NOT PROVIDE THE POLICE WITH AN ARTICULABLE, CREDIBLE REASON TO APPROACH THE CAR; THE EVIDENCE SUBSEQUENTLY SEIZED AND THE STATEMENTS SUBSEQUENTLY MADE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the indictment, determined the police did not have an articulable. credible reason for approaching the parked car defendant was sitting in. Therefore the evidence subsequently seized and the statements subsequently made should have been suppressed:

Where … “police officers approach a vehicle that is already parked and stationary, the only level of suspicion necessary to justify that approach is an articulable, credible reason for doing so, not necessarily indicative of criminality” … . The approach, however, “must be predicated on more than a hunch, whim, caprice or idle curiosity” … . Here, the officer testified at the suppression hearing that he and his partner approached the vehicle because the apartment complex at which it was parked was in a high crime area and because the vehicle was not running and had three occupants. The hearing record is devoid, however, of evidence that the officer was “aware of or observed conduct which provided a particularized reason to request information” from the occupants of the vehicle … . People v King, 2021 NY Slip Op 06499, Fourth Dept 11-19-21

 

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EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition:

… [P]laintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff’s GBS “diminished [her] chance of a better outcome” … . Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert “states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever” … , and, in this case, … the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome … .

From the dissent:

… [T]his appeal implicates the “loss of chance” theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an “omission” theory of negligence … . In such cases, proximate cause is not analyzed under the ordinary “substantial factor” approach … , but rather according to whether the alleged delay in diagnosis diminished the plaintiff’s “chance of a better outcome or increased the injury” … . Although I have expressed concern “that a loss of chance concept reduces a plaintiff’s burden of proof on the element of proximate cause” … this Court has nonetheless adopted that causation standard in this type of medical malpractice action. Simko v Rochester Gen. Hosp., 2021 NY Slip Op 06470, Fourth Dept 11-19-21

 

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A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined (1) a challenge to the voluntariness of a guilty survives a valid waiver of appeal, and (2) a hearing should have been held on defendant’s motion to withdraw the plea:

Because defendant’s challenge to the voluntariness of her plea would survive even a valid waiver of the right to appeal, we need not address the validity of that waiver … . We agree with defendant that County Court erred in denying her motion to withdraw her plea without a hearing because the record—specifically, defense counsel’s affidavit swearing that defendant’s plea was coerced—”raises a legitimate question as to the voluntariness of the plea” … . We therefore hold the case, reserve decision, and remit the matter to County Court to appoint new defense counsel and to rule on defendant’s motion to withdraw her plea following an evidentiary hearing. People v Gumpton, 2021 NY Slip Op 06519, Fourth Dept 11-19-21

 

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ITEMS SEIZED PURSUANT TO THE OVERBROAD SECTION OF THE SEARCH WARRANT, IF ANY, SHOULD HAVE BEEN SUPPRESSED, MATTER REMITTED FOR A RULING; THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE FOR THE SEARCH, NOTWITHSTANDING THE INCLUSION OF INFORMATION PROVIDED BY AN ANONYMOUS INFORMANT WHICH DID NOT SATISFY THE AGUILAR-SPINELLI TEST (FOURTH DEPT).

The Fourth Department determined a portion of the search warrant was overbroad and remitted the case for a ruling on what evidence, if any, should be suppressed because it was seized based on the overbroad language. The Fourth Department also determined information provided by an anonymous informant, which was included in the search warrant application, did not satisfy the “Aguilar-Spinelli” test, but that the remaining information in the application provided probable cause. The search warrant was seeking stolen property alleged to have been located in defendant’s residence:

… [I]nsofar as the search warrant application was based on information provided by an anonymous informant, that information was insufficient to establish probable cause. The information in the application concerning the informant failed to “satisf[y] the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted” … . Nevertheless, we conclude that the remaining information in the warrant application provided probable cause for the warrant … . …

… [P]art of the warrant is overbroad. “The Fourth Amendment to the Constitution provides that no warrants shall issue except those ‘particularly describing the place to be searched, and the . . . things to be seized’ (US Const 4th Amend). To meet the particularity requirement, the warrant’s directive must be ‘specific enough to leave no discretion to the executing officer’ ” … . Here, the warrant permitted the Troopers to search for, inter alia, “personal papers, . . . alcohol, . . . safes, . . . any communication and computers that are related to criminal activity, any . . . telephone records, cell phones that [may] contain evidence of a crime or illegal activity and any associated documentation related to any criminal activity.” Those parts of the warrant were overbroad and any evidence seized pursuant to them should have been suppressed … . People v Herron, 2021 NY Slip Op 06512, Fourth Dept 11-19-21

 

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THE SECOND DEPARTMENT HAD REVERSED DEFENDANT’S MURDER CONVICTION, STATING IT WAS REVERSING ON WEIGHT OF THE EVIDENCE GROUNDS FOR THE SAME REASONS IT WAS REVERSING ON LEGAL SUFFICIENCY GROUNDS; THAT CONSTITUTED AN ERROR OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE COURT OF APPEALS DETERMINED THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT CONVICTION; THE MATTER WAS REMITTED FOR PROPER ASSESSMENT OF THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, reversing People v Romualdo, 2020 NY Slip Op 06559 [188 AD3d 928], Second Dept 11-12-20, remitted the matter for a proper assessment of the weight of the evidence. The Court of Appeals has the authority to review a weight of the evidence determination when the appellate court failed to consider the issue or did so using an incorrect legal principle. “The Appellate Division’s statement that it was reversing on weight of the evidence grounds for the ‘same reasons’ that it was reversing on legal sufficiency grounds constituted an error of law …”:

The Appellate Division reversed defendant’s [murder] conviction, describing its holding as “on the law and on the facts,” and dismissed the indictment on both legal sufficiency and weight of the evidence grounds … . Both of those determinations were based upon the Appellate Division’s conclusion that “the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred”… . Both holdings were erroneous as a matter of law. * * *

… [A] rational jury could have inferred from the medical evidence presented at trial that the victim was sexually assaulted immediately prior to her death. Inasmuch as defendant’s semen was found on the victim’s genitalia, the semen had not transferred to the victim’s clothing, which was still in a state of disarray when her body was found, defendant lived in close proximity to the crime scene, and defendant falsely denied knowing or having sex with the victim, a rational jury could conclude that defendant was present at the time of the victim’s death and killed the victim during the course of, or immediately after, sexually assaulting her … . Therefore, the evidence was legally sufficient to support defendant’s conviction. … People v Romualdo, 2021 NY Slip Op 06430, Ct App 11-18-21

 

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THE CONSENT OF BOTH PARTIES IS NOT REQUIRED FOR THE DISPLAY OF STATUTORY TEXT ON A VISUALIZER WHEN A JUDGE RESPONDS TO A JURY’S REQUEST FOR SUPPLEMENTAL INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the consent of the parties is not required for the display of the relevant statutory text on a visualizer during the judge’s response to a jury’s request for supplemental instruction. Consent of the parties is required for allowing the jury to be provided with copies of the statutory text, but not for the display of the text during the supplemental instruction:

When a deliberating jury requests supplemental instruction, Criminal Procedure Law § 310.30 requires the court to provide a meaningful response. When the jury’s request concerns a relevant criminal statute, the law also permits the court to provide the jury with copies of the statutory text, but only with the consent of both parties. This case asks us to decide whether consent of the parties is required before the court, during a readback of the requested law and relevant definitions, may simultaneously display the corresponding text using a visualizer … . We conclude that consent is not required … . …

During deliberations, the jury sent a note asking for “definitions of the law” and later clarified that they were requesting the elements and relevant definitions of the charged crimes. The jury also asked that this information be displayed on the visualizer.

The judge informed counsel that he would comply with this request and project the relevant statutory text so the jury could see it while the judge read the text aloud. Although defense counsel did not object to the material selected for the readback, he did object to the process of displaying the text for the jury, arguing that “placing [the text] on the visualizer is really [no] different from handing them a written copy.” He asserted that once jurors are handed “instructions in written form, whether it is visually or physically, that they then start having the ability to interpret based on how they see the words, [and] what punctuation may or may not be there . . . .” The judge overruled the objection and proceeded as he had described to the parties. A short time later, the jury convicted defendant on two counts and acquitted him on one count of criminal possession of a weapon. People v Williams, 2021 NY Slip Op 06426, Ct App 11-18-21

 

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EXPERT TESTIMONY ON FALSE CONFESSION AND CROSS-RACIAL IDENDITIFICATION/MISIDENTIFICATION PROPERLY PRECLUDED; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the trial judge, after a Frye hearing, properly precluded expert testimony of Dr. Redlich on false confessions. In addition, the trial court properly precluded expert testimony on cross-racial identification/misidentification:

On this record, the trial court did not abuse its discretion in finding that the proffered testimony would not have aided the jury. Although Dr. Redlich is an impressively credentialed researcher, properly qualified by the trial court as an expert in her field, the trial court found that her testimony at the Frye hearing revealed her difficulty in linking her research on the possible causes of false confessions to the case at hand. Despite her review of the witnesses’ testimony at the Huntley hearing, she did not explain how her testimony was at all relevant to the circumstances presented by defendant’s interrogation, even by crediting defendant’s account of the events … . For instance, defendant flatly denied ever making the second, more detailed, confession—so, expert testimony regarding dispositional and situational factors that create a risk of a false confession has no relevance to the oral or written version of that statement. Moreover, defendant maintained that the first handwritten statement was the product of outright coercion—including a physical assault the night before and the deprivation of food and medicine—rather than resulting from psychological coercion of police interrogation that creates the risk of false confession, consistent with a recondite theory of which Dr. Redlich would have testified. There is a difference between the classically, inherently coercive interrogation that produces an involuntary confession—an issue that the jury is well-equipped to understand … —and the phenomenon of false confessions involving the interplay of situational and dispositional factors that produce a coercive compliant false confession from an innocent suspect, an occurrence that the jury may find counterintuitive. People v Powell, 2021 NY Slip Op 06424, CtApp 11-18-21

 

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PLAINTIFF HAD NO MEMORY OF EVENTS BEYOND WALKING TOWARD THE BUS AT A BUS STOP; SHE SUFFERED A CRUSHED FOOT; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the plaintiff’s verdict in this pedestrian-bus accident case should have been granted. Plaintiff had no memory of the incident beyond walking a couple of feet toward the bus at a bus stop. She suffered a crushed foot. But there was simply no evidence of negligence on the part of the bus driver:

“A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as [*2]a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” … . In determining such a motion, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every favorable inference which can reasonably be drawn from the evidence presented at trial … . However, “[a] jury verdict must be based on more than mere speculation or guesswork” …

Here, there was no rational process by which the jury could find in favor of the plaintiff and against the defendants on the issue of liability. Even if the circumstantial evidence sufficiently supported a conclusion that the plaintiff was injured due to an impact with a bus, the mere fact that the plaintiff was struck by a bus did not prove the defendants’ negligence … . In addition to establishing the fact of the accident, it was the plaintiff’s burden to demonstrate what actually happened at the time of the accident so as to enable the jury to find that the defendants were negligent and that their negligence was a proximate cause of the accident … . Kirwan v New York City Tr. Auth., 2021 NY Slip Op 06350, Second Dept 11-17-21

 

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