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THE BRADY MATERIAL, A WITNESS STATEMENT REVEALED AFTER TRIAL, WOULD NOT HAVE ALTERED THE RESULT OF THE TRIAL; DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Brady material, a witness statement, revealed after trial would not have altered the result of the trial and therefore reversal of the conviction was not warranted:

“To make out a successful Brady claim, ‘a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material'” … . Where, as here, the defendant made a specific request for the evidence in question, “[w]e must examine the trial record, evaluat[e] the withheld evidence in the context of the entire record, and determine in light of that examination whether there is a reasonable possibility that the result of the trial would have been different if the evidence had been disclosed” … . …

The undisclosed witness’s description of the shooter and his flight path did not differ in any material respect from that of the eyewitness who identified defendant in court as the perpetrator. Moreover, the jury’s verdict was supported by considerable other evidence, including the testimony of a cooperating witness who planned the crime with defendant, provided a weapon and cellphone for defendant’s use, observed defendant approach and leave the site of the shooting at the time it occurred, and described the manner in which the weapon was destroyed after the shooting; testimony by the spouse of the cooperating witness confirming defendant’s involvement; the testimony of additional witnesses who described the perpetrator’s clothing and his movements following the shooting; telephone records; and surveillance videos showing defendant’s proximity, clothing, and behavior immediately after the crime. People v McGhee, 2021 NY Slip Op 01836, CtApp 3-25-21

 

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SUPREME COURT SHOULD NOT HAVE CONFIRMED THE REFEREE’S REPORT; THE REPORT WAS BASED UPON BUSINESS RECORDS WHIDH WERE NOT PRODUCED OR IDENTIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed because it was based on business records which were not produced:

… Supreme Court should have denied Wilmington’s motion to confirm the referee’s report and for a judgment of foreclosure and sale. “[T]he referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record inasmuch as the computation was premised upon unproduced business records” … . “Moreover, the referee’s report also failed to identify the documents or other sources upon which the referee based his finding that the mortgaged premises should be sold in one parcel, and failed to answer the court’s specific question of whether the mortgaged premises could be sold in parcels” … . Thus, in confirming the report, the court should not have relied on the referee’s inadequately supported findings … . Wilmington Sav. Fund Socy., FSB v Mehraban, 2021 NY Slip Op 01802, Second Dept, 3-24-21

 

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PLAINTIFFS’ MEDICAL MALPRACTICE ACTION SEEKING RECOVERY OF THE COSTS OF CARING FOR A SEVERELY DISABLED CHILD SHOULD NOT HAVE BEEN DISMISSED; PROOF REQUIREMENTS EXPLAINED (SECOND DEPT).

The Second Department determined plaintiffs’ medical malpractice action seeking recovery of the expenses of caring for their severely disable child should not have been dismissed. The plaintiffs alleged defendants failed to properly diagnose the child’s conditions in utero and failed to advise plaintiffs of their options:

Parents may maintain a cause of action on their own behalf for the extraordinary costs incurred in raising a child with a disability … . “To succeed on such a cause of action, which ‘sound[s] essentially in negligence or medical malpractice,’ [a plaintiff] ‘must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by’ [the injured party]” … . “Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice” … . “[T]he claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition” … . “Since the plaintiffs’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable” … . Vasiu v Berg, 2021 NY Slip Op 01798, Second Dept 3-24-21

 

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GALLBLADDER SURGERY WAS PERFORMED ON PLAINTIFF, BUT HER GALLBLADDER HAD BEEN REMOVED YEARS BEFORE; THE DOCTORS APPARENTLY DID NOT REVIEW THE AVAIABLE MEDICAL RECORDS; THE RADIOLOGIST DID NOT DISCOVER THAT THE GALLBLADDER WAS ABSENT; THE DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment which had been awarded to an internist (Patil), a surgeon (Jung), and a radiologist (Opsha). Plaintiff underwent gallbladder surgery, but her gallbladder had already been removed. The medical record reflected the prior removal:

The plaintiff’s expert opined that Patil departed from the accepted standard of care and contributed to the plaintiff’s injuries by failing to review the plaintiff’s medical records maintained by SIPP, which indicated that the plaintiff previously had her gallbladder removed. …

At his deposition, Jung testified that, before the surgery, he was not aware that the plaintiff had a previous cholecystectomy and became aware that “[t]here was no gallbladder” … surgery. He admitted that he “looked at” Patil’s notes and reviewed the ultrasound report. Further, although he had access to [the] medical records, he did not recall if he reviewed the plaintiff’s medical chart prior to the surgery, but “might have looked at something.” Jung admitted that, other than the primary care physician’s report and the radiological report, it was “not routine” for him to “look into other documents and charts for a patient.” …

Opsha’s expert failed to explain the basis for his conclusion as to how Opsha detected a gallbladder in his review of the ultrasound and made findings in his report regarding the plaintiff’s gallbladder when that organ had been removed years earlier … . Ruiz v Opsha, 2021 NY Slip Op 01796, Second Dept 3-24-21

 

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THE PEOPLE USED DEFENDANT’S PRETRIAL SILENCE AGAINST HIM IN THEIR DIRECT CASE; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department reversed defendant’s conviction and ordered a new trial because the People “improperly used [defendant’s] pretrial silence against him in their direct case.” The decision does not explain the facts. Although the error was not preserved, the appeal was considered in the interest of justice:

“[I]t is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . Here, as the defendant correctly contends, the People improperly used his pretrial silence against him on their direct case … . Since this evidence was used by the People on their direct case, their reliance upon cases in which “conspicuous omissions from the defendants’ statements to police” had properly been used during cross-examination of the defendants to impeach the credibility of their exculpatory trial testimony is misplaced … . Contrary to the People’s contention, the error in admitting evidence of the defendant’s pretrial silence during their direct case was not harmless … . Although this issue is unpreserved for appellate review … , we reach it in the exercise of our interest of justice jurisdiction, and on that basis, reverse the judgment and remit the matter … for a new trial. People v DeLaCruz, 2021 NY Slip Op 01785, Second Dept 3-24-21

 

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DEFENDANT’S SUPPRESSION MOTION PAPERS RAISED A FACTUAL ISSUE REQUIRING A HEARING, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter, determined defendant had raised a factual issue requiring a suppression hearing:

“When made before trial, suppression motions must be in writing, state the legal ground of the motion and contain sworn allegations of fact made by defendant or another person” … . A hearing may be denied “unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue” … .

Here, defendant specifically alleged that officers “responded to [the scene] after . . . defendant, or someone at his behest, called 911” and that defendant, upon their arrival, told them that he “found [the victim] on the stairs bleeding and was trying to help him.” Defendant alleged that, based on that information, “[t]he police removed [him] from the scene and placed him in the back of a police vehicle, and took his personal cell phone from him” without reasonable suspicion or probable cause justifying the intrusion. Although the People contended that defendant made other statements to the officers that heightened their level of suspicion and justified the intrusion, defendant’s motion papers disputed this assertion, alleging instead that, at the time of the intrusion, “the police knew nothing more than [that the victim] appeared to have been shot, and [that defendant] . . . had discovered him and summoned help while trying to give assistance at the scene.” Indeed, at oral argument on the motion, defendant further explained that he specifically disputed what information the police had at the time of the intrusion. We conclude that, under these circumstances, defendant sufficiently raised a factual issue necessitating a hearing … . People v White, 2021 NY Slip Op 01639, Fourth Dept 3-19-21

 

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STATEMENTS MADE AFTER DEFENDANT ASSERTED HIS RIGHT TO REMAIN SILENT SHOULD HAVE BEEN SUPPRESSED, BUT THE ERROR WAS HARMLESS; CRIMINAL POSSESSION OF A WEAPON WAS A CONTINUING CRIME AND SHOULD HAVE BEEN CHARGED AS A SINGLE COUNT, NOT FOUR COUNTS; AN OBJECTION OR A MOTION FOR A MISTRIAL IS NECESSARY TO PRESERVE AN ERROR AFTER A CURATIVE INSTRUCTION HAS BEEN GIVEN (FOURTH DEPT).

The Fourth Department determined statements made after defendant unequivocally asserted his right to remain silent should have been suppressed, but the error was harmless. In addition the Fourth Department dismissed three counts of criminal possession of a weapon because all four counts related to the uninterrupted possession of a single weapon at different times. The court also noted that if the trial court gives a curative instruction after an objection, another objection or a motion for a mistrial is necessary to preserve the issue for appeal:

… [D]efendant told the police three times that he did not wish to speak to them. We conclude that the court’s determination that defendant did not unequivocally invoke his right to remain silent is supported by the record with respect to the first such instance, because in that instance he “did not clearly communicate a desire to cease all questioning indefinitely” … , “especially in light of his continued participation in the conversation” … . We further conclude, however, that the remainder of the court’s determination is not supported by the record, inasmuch as, twice more during the questioning, “defendant said that he did not want to talk about [the crimes], thus unequivocally invoking his right to remain silent” … . Consequently, the court was required to suppress the statements that defendant made after invoking his right to remain silent for the second time. * * *

Defendant … contends in his main brief that the court erred in refusing to dismiss various counts of the indictment charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) inasmuch as the indictment charged him with multiple counts of that crime based on his commission of a singular continuing offense. We agree. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged defendant with four separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) for the uninterrupted possession of a single weapon at different times. We conclude that such possession “constituted a single offense for which he could be prosecuted only once” … . Consequently, we affirm that part of the judgment convicting defendant of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) in count 17 of the indictment, and we modify the judgment by reversing those parts convicting him of that crime under counts 8, 11, and 16 of the indictment and dismissing those counts of the indictment. People v Johnston, 2021 NY Slip Op 01632, Fourth Dept 3-19-21

 

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THE PROOF OF CONSTRUCTIVE POSSESION OF WEAPONS WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department reversed defendant’s convictions for criminal use of a firearm and criminal possession of weapon because the proof of constructive possession was legally insufficient:

… [T]he evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, and we therefore modify the judgment accordingly. Those counts were based on defendant’s constructive possession of a rifle that was found in the house after the police entered. The People failed to establish that defendant “exercised dominion or control over [the rifle] by a sufficient level of control over the area in which [it was] found” to establish that she had constructive possession of it … . People v Lora, 2021 NY Slip Op 01597, Fourth Dept 3-19-21

 

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AN APPELLATE COURT CANNOT CONSIDER A MOTION NOT RULED UPON BELOW; MATTER REMITTED FOR A RULING ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL (FOURTH DEPT).

The Fourth Department remitted the case for a ruling on defendant’s motion for a trial order of dismissal. An appellate court cannot consider a motion not ruled upon:

Defendant … contends that the evidence is legally insufficient to support the conviction with respect to all counts. At the close of proof, defendant moved for a trial order of dismissal, and the court reserved decision. There is no indication in the record that the court ruled on defendant’s motion (cf. CPL 290.10 [1]). Thus, we may not address defendant’s contention because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on the . . . motion as a denial thereof” … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant’s motion … . People v Johnson, 2021 NY Slip Op 01675, Fourth Dept 3-19-21

 

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THE ALLEGED VICTIM IN THIS RAPE PROSECUTION TESTIFIED SHE PROMPTLY NOTIFIED HER BOYFRIEND OF THE RAPE AND, A FEW HOURS LATER, NOTIFIED HER MOTHER; HER MOTHER TESTIFIED BUT THE BOYFRIEND WAS NOT CALLED; THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE TESTIMONY WOULD BE CUMULATIVE; THE CONCEPT OF “CUMULATIVE” EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the defense request for the missing witness jury instruction should have been granted. The alleged victim in this rape case testified she promptly reported the rape to her boyfriend and, a few hours later, told her mother. The People called her mother as a witness, but not her boyfriend. The trial judge denied the missing witness charge on the ground that the testimony would be cumulative:

In People v Smith (33 NY3d 454 [2019]), the Court of Appeals held that the proponent of a missing witness charge has no initial burden to show that the missing testimony would not be cumulative of the remaining testimony, and that the concept of cumulativeness in this context functions only as a tool for defeating an otherwise-meritorious request for a missing witness instruction (id. at 458-460). Thus, the Court of Appeals explained, the opponent of the missing witness instruction has the burden of showing that the missing testimony would be cumulative in order to defeat the requested instruction on that ground (id.).

Applying the standard set forth in Smith, we conclude that the People failed to show that the boyfriend’s testimony would have been cumulative of the mother’s testimony. The respective accounts would concern different outcries, separated by several hours and many blocks. The boyfriend could not have duplicated the mother’s account of the complainant’s outcry, because the boyfriend was not present during that particular event. Conversely, the mother could not have duplicated the boyfriend’s account of the complainant’s outcry, because the mother was not present during that particular event. People v Garcia, 2021 NY Slip Op 01571, Fourth Dept 3-19-21

 

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