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THE TRIAL COURT PROPERLY ALLOWED EXPERT TESTIMONY ABOUT “COMMUNITY GUNS,” A CONCEPT USED BY GANGS TO MAKE GUNS AVAILABLE WHILE AVOIDING BEING CAUGHT POSSESSING THE GUNS (FIRST DEPT).

The First Department noted that the trial court properly allowed expert testimony about “community guns,” a concept used by gangs to make guns available while avoiding being caught possessing the guns:

The court providently exercised its discretion in allowing expert testimony on what the expert described as “community guns.” This concept involved the methods used by gangs to have their shared firearms ready to use while avoiding being caught in possession of these weapons, including by means of keeping firearms outdoors in closed containers under their constant observation but not on anyone’s person. This testimony was necessary to explain the unusual behavior of defendant and persons who could be inferred to be his fellow gang members regarding their handling of the backpack containing the pistol, including evidence that defendant left the backpack unattended in the gang-controlled courtyard for two hours. These matters went beyond the general legal concept of constructive possession, they were not within the jurors’ ordinary knowledge, and they tended to prove defendant’s knowing and voluntary possession of the pistol … . People v Manley, 2021 NY Slip Op 06814, First Dept 12-7-21

 

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POLICE OFFICERS PROPERLY ALLOWED TO IDENTIFY THE PERSON IN A SURVEILLANCE VIDEO AS THE DEFENDANT (FIRST DEPT).

The First Department noted that police officers were properly allowed to identify the person in a videotape as the defendant:

The court providently exercised its discretion in permitting two officers to give lay opinion testimony that defendant was the man depicted in a surveillance videotape of the crime. This testimony “served to aid the jury in making an independent assessment regarding whether the man in the was indeed the defendant” … . The quality of the videotape was poor, defendant’s appearance had changed, and the officers had spent sufficient time with defendant to be in a better position than the jurors to identify him on the video … . Any potential prejudice was minimized by the court’s limiting instructions that the officers’ testimony was merely to aid the jury in its independent assessment of whether the man in the video was defendant … . People v Lee, 2021 NY Slip Op 06774, First Dept 12-2-21

 

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DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).

The Third Department determined that double hearsay supported the denial of petitioner’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged:

… [O]ur review of the record confirms that the double hearsay evidence introduced at the expungement hearing was sufficiently relevant and probative to the inquiries of whether petitioner drove under the influence of alcohol with the children in the car and whether she failed to exercise a minimum degree of care in providing the children with proper supervision and guardianship by misusing alcohol to the extent of losing control of her actions … . Specifically, statements made to the investigating caseworker by the oldest and middle children, which were memorialized in the indicated report, supported the conclusion that petitioner drove under the influence of alcohol with the children in the car on at least two occasions in May 2019. Such statements were corroborated by petitioner’s admissions that, after roughly five years of sobriety, she relapsed in or around mid-May and that she “had a buzz” while driving the children. Further, the oldest child reported to the caseworker that, on the evening of May 29, 2019, she observed petitioner to be intoxicated, “sick” and “throwing up,” which prompted her to call her maternal grandparents. The oldest child’s account was corroborated by the maternal grandfather, who stated that he believed petitioner to have been intoxicated on the night in question and that it was “an ongoing concern.” Matter of Elizabeth W. v Broome County Dept. of Social Servs., 2021 NY Slip Op 06732, Third Dept 12-2-21

 

THE TRIAL COURT AS FACT-FINDER PROPERLY ADMITTED IN EVIDENCE A PHOTOCOPY OF THE LEASE AT THE HEART OF THE DISPUTE AS AN EXCEPTION TO THE BEST EVIDENCE RULE (FIRST DEPT).

The First Department determined a photocopy of a lease at the heart of the dispute was properly admitted in evidence pursuant to an exception to the best evidence rule:

The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” … . However, under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent [] has sufficiently explained the unavailability of the [original]” and that the secondary evidence “is a reliable and accurate portrayal of the original” … . Once such threshold showings have been made, “final determination” of the weight to be given to the secondary evidence is “left to the trier of fact” … . …

… [T]he reliability of the photocopies turned on the court’s credibility determinations, which we find no reason to disturb. Defendants’ handwriting expert acknowledged that the images of the parents’ signatures on the photocopy of the lease were consistent with their known signatures and he found no evidence that the images of their signatures or the document itself was manipulated. Rather, he merely speculated that such a danger of manipulation always exists. Casanas v Carlei Group, LLC, 2021 NY Slip Op 06787, First Dept 12-2-21

 

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PLAINTIFF IN A LABOR LAW 240 (1) AND 241 (6) ACTION NEED NOT SUBMIT AN AFFIDAVIT TO MAKE OUT A PRIMA FACIE CASE; THE HEARSAY STATEMENTS REFERENCING OR ATTRIBUTED TO PLAINTIFF DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court and granting plaintiffs’ summary judgment motion on the Labor Law 240 (1) and 241 (6) causes of action, determined: (1) plaintiff need not submit an affidavit to make out a prima facie case; and (2) defendant’s reliance on hearsay, including statements referenced in the certified medical records, did not raise a question of fact:

Plaintiffs established prima facie that defendant Choice is liable to them under Labor Law § 240(1) and Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23-1.7(b)(1)(i) through plaintiff Bledar Greca’s (plaintiff) testimony that he was injured while working on the fifth floor of defendant Choice’s property when a piece of wood that had been placed as a temporary path shifted, causing him to fall through an open area between beams. …

Although plaintiff’s medical records were certified, Choice [defendant] did not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis and treatment or are directly attributable to plaintiff … . The handwritten statement ostensibly by defendant Cekaj Construction Corp.’s principal and the affidavit by the owner of second third-party defendant Donato Plumbing Group, Inc. as to what Cekaj’s principal told him about plaintiff’s accident are both inadmissible hearsay, and do not qualify as admissions by an opposing party … . Greca v Choice Assoc. LLC, 2021 NY Slip Op 06759, First Dept 12-2-21

 

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BECAUSE THE DRUG TESTING WAS FLAWED, THE SUBSTANCE PETITIONER WAS SMOKING WAS NOT IDENTIFIED AS MARIHUANA, AND THEREFORE WAS NOT PROVEN TO BE CONTRABAND; BOTH THE POSSESSION OF DRUGS DETERMINATION AND THE POSSESSION OF CONTRABAND DETERMINATION WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department determined the possession of contraband determination was not supported by substantial evidence. Petitioner was seen smoking a cigarette. When he was asked what was in the cigarette, he answered “weed.” A test was performed which identified the substance as marihuana and petitioner was charged with possession of drugs and possession of contraband. The drug possession determination was dismissed when an inconsistency in the drug testing instructions was discovered. But the contraband possession determination remained and the punishment was unchanged:

Substantial evidence does not support the determination of guilt and, therefore, we annul. “[T]he prohibition of contraband hinges on whether or not the item is authorized” … . In light of the unreliable drug test and the absence of any hearing testimony identifying the substance at issue or attesting to petitioner’s alleged admission, the substance was not adequately identified … . Accordingly, “substantial evidence does not support the determination that the substance was unauthorized and, therefore, contraband” … . Matter of Razor v Venettozzi, 2021 NY Slip Op 06740, Third Dept 12-2-21

 

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THE COMPLAINANT WAS CAJOLED BY OTHERS, NOT THE DEFENDANT, TO HAVE SEX WITH DEFENDANT IN FRONT OF THE OTHERS; THERE WAS NO EVIDENCE FORCE WAS USED AND NO EVIDENCE OF ANY THREATS TO USE FORCE; RAPE FIRST CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined there was no evidence of forcible compulsion in this Rape First case. The complainant was cajoled by others, not including the defendant, to have sex with the defendant in front of the others. But there was no evidence defendant used force and no overt or implied threats to use force:

… [S]ince the complainant had never spoken with the defendant prior to the alleged sexual assault, there was no reason, even from her subjective point of view, to fear that he would physically harm her if she did not do what Franiqua and Franeisha were pressuring her to do … .

… The complainant said repeatedly during her testimony that she was uncomfortable throughout the incident, that she “fe[lt] like [she] had no control” over what was happening, and that there was “nothing [she] could do” to stop it. But she never connected those feelings to a fear of being physically injured, or some other similarly serious consequence … .

… [T]here was no testimony that the complainant had been physically abused by Franiqua prior to this incident, and no evidence that the defendant was aware that Franiqua was acting abusively towards the complainant, regardless of when that conduct began. Beyond that, the complainant acknowledged that at least some of her discomfort was attributable to the “whole situation,” including, understandably, that several people were present. People v Graham, 2021 NY Slip Op 06699, Second Dept 12-1-21

 

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THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was seen by defendants. The description of the flaws in the expert’s affidavit reads like a checklist for the required contents of a defense expert’s affidavit in a medical malpractice action:

… [T]he defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause Nodar’s injuries. With respect to the plaintiffs’ allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit by Nodar, which was just weeks before Nodar attempted suicide by jumping off his roof, the defendants’ expert failed to set forth the standard of care for conducting a suicide risk assessment … . The expert’s conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs’ specific allegations of negligence … . In addition, the defendants’ expert did not address the plaintiffs’ allegation that the defendants failed to schedule or conduct a timely follow-up visit with Nodar after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that Nodar was advised to do was appropriate under the circumstances … . Moreover, the defendants’ expert failed to establish, prima facie, that any departure from the standard of care did not proximately cause Nodar’s injuries … . Nodar v Pascaretti, 2021 NY Slip Op 06695, Second Dept 12-1-21

 

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IN THIS FORECLOSURE ACTION, THE BANK’S PROOF OF MAILING THE RPAPL 1304 NOTICE WAS INSUFFICIENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s proof that the RPAPL 1304 notice was properly mialed to the defendant was insufficient:

… [A]lthough Gonzales [an employee of plaintiff Wilmington’s loan servicer] stated in her affidavit that RPAPL 1304 notices were mailed by certified and first-class mail, and attached copies of those notices, Wilmington failed to attach any documents showing that the mailings actually happened … . Further, Gonzales did not aver that she had personal knowledge of the purported mailings, and did not describe any standard office procedure designed to ensure that notices are properly addressed and mailed … . Accordingly, Wilmington failed to establish, prima facie, compliance with RPAPL 1304 … . Wilmington Sav. Fund Socy., FSB v Novis, 2021 NY Slip Op 06720, Second Dept 12-1-21

 

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THE VERDICT FINDING DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS FOUND IN HIS SISTER’S APARTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, determined the jury’s conclusion defendant constructively possessed the drugs was against the weight of the evidence:

… [V]iewing the evidence in a neutral light and weighing the relative probative force of the proof, the jury’s determination that defendant constructively possessed the crack cocaine was not supported by the weight of the evidence. The crack cocaine was not discovered in the same room as defendant or near him. Indeed, the officer testified on cross-examination that he did not find any drugs near defendant. Rather, the crack cocaine was found in the north bedroom, i.e., his sister’s bedroom. There was no proof indicating that any of defendant’s personal belongings were in the north bedroom … . Moreover, the crack cocaine was not seen in open view but instead underneath a pile of female clothes. Even accepting that defendant was a daily visitor to his sister’s apartment, the proof does not establish that he resided there or that he exercised any dominion or control over any part of it … . People v Cota, 2021 NY Slip Op 06574, Third Dept 11-24-21

 

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