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IN AFFIRMING THE MURDER CONVICTION OF A 14-YEAR-OLD, THE COURT OF APPEALS HELD THE TRIAL COURT PROPERLY EXCLUDED EXPERT TESTIMONY ABOUT ADOLESCENT BRAIN DEVELOPMENT AND BEHAVIOR (CT APP).

The Court of Appeals, in a brief memorandum, affirmed the murder conviction of a 14-year-old noting that the trial court properly excluded expert testimony about the brain development and behavior of an adolescent without a Frye hearing:

Defendant sought to introduce testimony by an expert witness, concerning the science of adolescent brain development and behavior, to assist the jury in determining whether the People had met their burden of disproving justification. The trial court denied defendant’s request, without conducting a Frye hearing … .

“[T]he admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” … . The criterion to be applied is “whether the proffered expert testimony would aid a lay jury in reaching a verdict” … . Under the particular facts of this case, the trial court did not abuse its discretion in denying defendant’s request to permit the proposed expert witness testimony. People v Anderson, 2021 NY Slip Op 02735, CtApp 5-4-21

 

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THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating the maintenance award and remitting for recalculation, determined Supreme Court did not set forth the factors for the maintenance calculation as required by Domestic Relations Law 236:

Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. On appeal, he contends that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). We agree and further conclude that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in section 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination … . The determination must also “reflect[] an appropriate balancing of [the wife’s] needs and [the husband’s] ability to pay” … .

… [T]he court stated that it awarded plaintiff $750 per week—an amount deviating from the statutory guidelines—for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award … , the length of the parties’ marriage is not a factor enumerated in section 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities … . Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award … . Thus, the court failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. Gutierrez v Gutierrez, 2021 NY Slip Op 02662, Fourth Dept 4-30-21

 

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ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE PROOF REQUIREMENTS FOR SERIOUS PHYSICAL INJURY WERE NOT MET; ASSAULT SECOND CONVICTIONS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department determined that although the victim had been shot, the evidence of serious physical injury was insufficient. The court reduced the assault second convictions to assault third:

The victim asserted that the bullet entered through the back of the leg just below the kneecap and exited through the front of the leg just above the kneecap. * * *

There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening” … . Similarly, the evidence failed to show “that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ” … . Although there was testimony regarding the long-term effects of the gunshot wound, no corresponding medical documentation was submitted as proof of the link between the impairment and the initial injury … . Further, although the victim testified that he had two circular scars from the bullet, this testimony alone is not sufficient to support a finding of serious disfigurement … . To prove that the victim’s scars were a serious disfigurement would have required the People to make a record of it, via either a photograph or a detailed description; here, however, the testimony establishes “no more than that the victim had two scars” … .

Although the evidence “falls short of satisfying the statutory definition of serious ‘physical injury'” … , there is no dispute that the victim sustained a “physical injury” (Penal Law § 10.00 [9]). People v Smith, 2021 NY Slip Op 02564, Third Dept 4-29-21

 

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INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant’s infecting a victim with HIV constitutes “physical injury” within the meaning of risk factor 1 re: the Sex Offender Registration Act (SORA). However the evidence that the victim was in fact infected with HIV by the defendant was not clear and convincing and the related 15 points should not have been assessed:

… [W]e conclude that infection with HIV constitutes a physical injury. …

A defendant’s statements as to his or her medical condition—unsupported by any records or evidence from a medical or health professional—have been rejected … , and there is no reason why the same rule should not apply to the People, who are held to a higher standard of proof. Points may be assessed at a SORA hearing based upon physical injury to the victim, based on “clear and convincing evidence in the record, including medical evaluations” … . However, here, no medical evaluations of the victim were in evidence, and the alleged impairment would not be apparent to a layperson. People v Alay, 2021 NY Slip Op 02551, Second Dept 4-28-21

 

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SUPREME COURT DID NOT CONDUCT A HEARING OR FOLLOW THE CHILD SUPPORT STANDARDS ACT FORMULA FOR CHILD SUPPORT CALCULATIONS; IN ADDITION THE COURT DID NOT CONSIDER THE STRONG PUBLIC POLICY AGAINST RESTITUTION OR RECOUPMENT OF CHIILD SUPPORT ALREADY PAID; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not conduct a hearing, did not follow the child support formula of the Child Support Standards Act (CSSA) and did not consider the public policy against recoupment or restitution of child support already paid. The matter was remitted for a hearing and a new determination:

… [T]he Supreme Court did not calculate the basic child support obligation for the children, which is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage (see Domestic Relations Law § 240[1-b][c]). The court did not determine the combined parental income or identify the applicable statutory cap. It further failed to determine each parent’s pro rata share of the basic child support obligation based on his or her income in proportion to the combined parental income … . Rather, the court incorrectly determined the amount of child support owed to the custodial parent based solely on the noncustodial parent’s income multiplied by the appropriate child support percentage, which the court determined to be 25% of the plaintiff’s income. However, the appropriate basic child support figure for the parties’ two children was 25% of the combined parental income, as prorated between the parties in accordance with the statute (see Domestic Relations Law § 240[1-b][b][3][ii]). … [T]here is no indication that the court considered “[t]he financial resources of the custodial and non-custodial parent” or whether “the gross income of one parent is substantially less than the other parent’s gross income” … . Park v Park, 2021 NY Slip Op 02536, Second Dept 4-28-21

 

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DEFENSE COUNSEL EXPLAINED HIS STRATEGIES BEHIND WAIVING THE HUNTLEY HEARING AND REFRAINING FROM CONSULTING AND PRESENTING EXPERTS IN THE DEFENDANT’S FIRST DEGREE RAPE TRIAL; THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined that defense counsel, at the hearing on defendant’s motion to vacate his conviction on ineffective assistance grounds, adequately explained the strategic reasons for waiving the Huntley hearing and not consulting experts in this first degree rape case. Defendant was charged with having sex with a woman who was incapable of consent due to intoxication. Defendant was not read his Miranda rights until well into the police interrogation:

In support of his belief that the admission of the statements would be beneficial, counsel explained that defendant had maintained throughout the interview that the victim was an active and willing participant in the sexual encounter and that, if the statements were suppressed, the jury would only hear about the changes that defendant had made to his story when, as expected, he testified at trial and was cross-examined about them … . In contrast, if the entire interview were put into evidence with appropriate redactions, the defense would benefit from having the jury repeatedly hear defendant’s exculpatory version of events and be assured that almost all of his account had remained consistent over time. Counsel further believed that any damage caused by the jury seeing defendant walk back aspects of his story could be ameliorated, reasoning that jurors could be persuaded to sympathize with a “desperate” and “confused” defendant who wavered on a few points after prolonged, increasingly hostile questioning, but remained “adamant that everything that had just happened was consensual and [that the victim] was awake for it.” …

… [A]lthough defendant complains that counsel failed to consult with experts or present their testimony to rebut proof related to the victim’s sexual assault examination, her degree of intoxication and the presence of defendant’s genetic material in her anus, the hearing evidence reflected that counsel “had a strategic reason for [that] failure” … . … A finding that the victim was alert and willing would have … resulted in defendant’s acquittal on all charges, and counsel made the tactical decision to focus on that issue to the exclusion of murkier battles over whether the alleged anal sexual conduct had occurred or whether some of the conclusions drawn by the People’s experts were open to question. Counsel explained that he chose that course because of emotionally charged testimony from the victim, the sexual assault nurse examiner and others, all of whom he realized posed a real danger of inflaming the sympathies of the jury against defendant. As such, counsel viewed it as essential to present a narrowly tailored defense that kept the jury “singl[ed] in on” concrete facts pointing to the victim as an active participant in the sexual encounter. People v Sposito, 2021 NY Slip Op 02441, Third Dept 4-21-21

 

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AT THE HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, DEFENDANT PRESENTED SEVERAL WITNESSES WHO SUPPORTED HIS ALIBI DEFENSE; DEFENSE COUNSEL HAD BEEN MADE AWARE OF THE WITNESSES BUT FAILED TO INVESTIGATE; THERE CAN BE NO STRATEGIC JUSTIFICATION FOR SUCH A FAILURE; DEFENDANT’S CONVICTION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective of counsel should have granted. Although defendant did not demonstrate “actual innocence,” the defendant presented several witnesses who testified defendant had left the party before the shooting and defendant’s hair was short, not braided, at the time of the shooting. The perpetrator was described as having braids:

Although a defendant claiming ineffective representation “bears the ultimate burden of showing . . . the absence of strategic or other legitimate explanations for counsel’s challenged actions” … , “[i]t simply cannot be said that a total failure to investigate the facts of a case, or review pertinent records, constitutes a trial strategy resulting in meaningful representation” … . Here, the failure by the defendant’s trial counsel to contact and interview these witnesses cannot be characterized as a legitimate strategic decision since, without collecting that information, counsel could not make an informed decision as to whether the witnesses’ evidence might be helpful at trial … . The fact that some of these witnesses had criminal records does not excuse trial counsel’s failure to investigate since a witness’s “‘unsavory background[ ]’ does not render his or her ‘testimony incredible as a matter of law,'” particularly since the People regularly rely on witnesses with criminal backgrounds, and did so in this case … . Moreover, even if the witnesses’ criminal records provided a strategic basis for choosing not to present their testimony, it does not provide an excuse for counsel’s failure to investigate them as possible witnesses … . People v Davis, 2021 NY Slip Op 02408, Second Dept 4-21-21

 

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THE STOP OF DEFENDANT’S CAR WAS NOT SUPPORTED BY REASONABLE SUSPICION; THE REPORT THAT A SUSPICIOUS CAR WAS FOLLOWING SOMEONE DID NOT DESCRIBE THE CAR AND DEFENDANT WAS NOT FOLLOWING ANYONE WHEN STOPPED; THE PROOF AT THE SUPPRESSION HEARING DID NOT DEMONSTRATE DEFENDANT WAS TRESPASSING BY DRIVING ON THE PRIVATE ROAD, WHICH WAS THE JUSTIFICATION FOR THE STOP RELIED UPON BY SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a gravity knife seized by a police officer after a traffic stop should have been granted. The officer received a report of a “suspicious vehicle following someone” without any description of the vehicle. The officer eventually stopped defendant’s car, which was moving slowly but was not following anyone. After the stop the officer saw the knife inside the car, but did not recognize it as a gravity knife until he picked it up. Supreme Court found the stop justified because defendant was trespassing by driving on a private road. However that theory was not raised at the suppression hearing and no evidence other than an ambiguous sign on an open gate suggested driving on the road would constitute trespassing:

The evidence at the hearing established that at the time Officer Paolillo stopped the defendant’s vehicle on Valley Road, the defendant was not following anyone, and was merely driving slowly down the road. In the initial call to the police, there was no vehicle description provided, and thus Officer Paolillo could not have known if this was the vehicle which had been observed following someone. Contrary to the Supreme Court’s conclusion, the testimony at the hearing did not establish that Valley Road was private property upon which trespass was forbidden. Officer Paolillo did not testify that he suspected the defendant of criminal trespass, or that Valley Road was a private road. When asked who generally uses the road, the officer testified “mainly the residents.” When asked how the traffic conditions were on the road, the officer testified “[v]ery light. Like I said, if anybody is down there, it’s basically they live down there.” The officer described that there were gates on the side of the road, which were open, and a sign which states “North Country Colony, Private Property, No Trespassing.” However, the officer was not asked whether this sign referred to the roadway itself or the residential properties located thereon. The officer provided no testimony which could have allowed the court to conclude that if someone was simply driving on Valley Road, it would be an act of trespass. Additionally, based upon the officer’s testimony, it was clear that Valley Road is not a dead end, but rather it has outlets to other roads.

Since there was nothing observed by Officer Paolillo which could have allowed him to conclude that criminal activity was at hand, the officer lacked reasonable suspicion to stop the defendant’s vehicle … . People v Ahmad, 2021 NY Slip Op 02404, Second Dept 4-21-21

 

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A VIDEO OF AN ALLEGED ASSAULT BY DEFENDANT’S EMPLOYEES WAS EITHER NEGLIGENTLY OR WILLFULLY LOST; SUPREME COURT PROPERLY RULED DEFENDANTS COULD NOT INTRODUCE ANY EVIDENCE WHICH CONTRADICTED AN AFFIDAVIT DESCRIBING WHAT THE VIDEO DEPICTED (SECOND DEPT).

The Second Department determined the sanction imposed on defendants for spoliation of evidence was appropriate. Defendants did not preserve the video of an incident in which plaintiff was allegedly assaulted by employees of the NYC Department of Homeless Services (DHS). Plaintiff’s attorney had specifically requested that the video be preserved. The day after the incident the video was reviewed by a security who described the video in an affidavit. When the video was not produced by the defendants, Supreme Court ruled the defendants could not introduce any evidence which contradicted the affidavit describing the video:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence”… . “The Supreme Court has broad discretion to determine a sanction for the spoliation of evidence”  … .

Here, contrary to the defendants’ contention, the record demonstrates that the relevant video evidence was owned and controlled by DHS, that DHS possessed an obligation to preserve the evidence at the time that it was lost or destroyed, and that DHS negligently or wilfully failed to ensure its preservation … . Furthermore, under the circumstances of this case, the sanction imposed by the Supreme Court provided “proportionate relief” to the plaintiff and was not an improvident exercise of discretion … . Oppenheimer v City of New York, 2021 NY Slip Op 02401, Second Dept 4-21-21

 

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FAMILY COURT SHOULD HAVE CONDUCTED A HEARING IN THIS CUSTODY/PARENTAL ACCESS PROCEEDING AND SHOULD HAVE MADE FINDINGS OF FACT AS REQUIRED BY CPLR 4213 (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this custody/parental access proceeding. The court noted Family Court failed to set forth findings of fact as required by CPLR 4213 (b):

Parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … . Here, the record shows that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on the father’s parental access was required … . … [W]e note that the decision issued by the Supreme Court failed to comply with CPLR 4213(b) in that it did not set forth findings of fact … . Matter of Vazquez v Bahr, 2021 NY Slip Op 02397, Second Dept 4-21-21

 

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