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THE PEOPLE DID NOT DEMONSTRATE THAT THE ANALYST WHO TESTIFIED ABOUT THE GENERATION OF THE DNA PROFILE HAD FIRST-HAND KNOWLEDGE OF THE PROCEDURE USED OR INDEPENDENTLY ANALYZED THE RAW DATA; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defendant was deprived of the opportunity to cross-examine a witness who had first-hand knowledge of the generation of the DNA profile:

When confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data” … . As the defendant contends, the People failed to establish that the analyst who testified in this case performed such a role in the testing or analysis of the testimonial DNA evidence introduced against him at trial … . Since the error was not harmless, the defendant is entitled to a new trial … . People v Butler, 2020 NY Slip Op 02676, Second Dept 5-6-20

 

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DEFENDANT DID NOT OFFER PROOF OF WHEN THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON WATER WAS LAST CLEANED OR INSPECTED; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. The defendant failed to demonstrate it did not have constructive notice of the water on the floor because it did not offer any proof of when the area had last been cleaned or inspected:

“A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “A defendant has constructive notice of a dangerous condition when the dangerous condition is visible and apparent, and existed for a sufficient length of time before the accident that [it] could have been discovered and corrected” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the defendant failed to meet its initial burden as the movant to affirmatively demonstrate that it did not have constructive notice of the condition that allegedly caused the plaintiff to fall, because the defendant did not proffer any evidence as to when the subject area was last cleaned or inspected … . Merchant v New York City Tr. Auth., 2020 NY Slip Op 02666, Second Dept 5-6-20

 

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DENIAL OF FATHER’S PETITION FOR CUSTODY WAS NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, held that the denial of father’s petition for a change in custody (from mother to father) was not supported by the evidence:

Here, the only factor that weighs in favor of respondent mother is the existing custody arrangement, which had been in place for a lengthy period of time … . Although the subject child has a brother at the mother’s house, that is not a factor that favors the mother because “both parties have other children, [and thus] an award of [primary residential] custody to either party would necessarily separate the child at issue from some of her siblings” … .

The remaining factors favor awarding primary residential custody to the father. During the time that the mother had primary residential custody, the child performed poorly at school and experienced a significant increase in her depression … . Additionally, due to the mother’s work schedule, the child was required to arise before 5:00 a.m. and to thereafter be taken to a relative’s house, where the child stayed for two hours before going to school. Also, the mother is admittedly unable to assist the child with school work, or to schedule or attend the child’s medical and mental health counseling appointments. The father, in contrast, is able to provide a more stable home for the child and is currently helping the child with those measures.

Furthermore, the child expressed a desire to reside with the father. Although the “[c]ourt is . . . not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis” … , we conclude that “the wishes of the [14]-year-old child are . . . entitled to great weight where, as here, the age and maturity [of the child] would make [her] input particularly meaningful” … . In addition, although the position of the AFC is not determinative, it is a factor to be considered … , and the AFC here has supported the child’s wish to live with the father both in Family Court and on appeal. Matter of Alwardt v Connolly, 2020 NY Slip Op 02574, Fourth Dept 5-1-20

 

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WHETHER TO INSTRUCT THE JURY ON THE EXTREME EMOTIONAL DISTURBANCE (EED) AFFIRMATIVE DEFENSE MUST BE DETERMINED BASED SOLELY UPON THE PEOPLE’S PROOF AT TRIAL; IT WAS (HARMLESS) ERROR FOR THE COURT TO MAKE THAT DETERMINATION PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department noted that the court committed (harmless) error when it ruled, prior to the trial, that the jury would not be instructed on the extreme emotional disturbance (EED) affirmative defense:

… [T]he court erred in determining prior to trial that it would not charge the jury on the affirmative defense of EED. A defendant may be entitled to a jury charge on the affirmative defense of EED based solely on the People’s proof … , and thus it was error for the court to make that ruling without any consideration of the People’s evidence. People v Taglianetti, 2020 NY Slip Op 02561, Fourth Dept 5-1-20

 

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DEFENDANT, FROM THE OUTSET, CLAIMED A MAN SHE HAD JUST MET AT A BAR WAS DRIVING HER CAR WHEN IT WENT OFF THE ROAD AND THEN FLED THE SCENE; THE DWI CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing the Driving While Intoxicated (DWI) convictions, determined the convictions were against the weight of the evidence. The defendant claimed from the outset that her car, which had gone off the road, was driven by a man she just met at a bar and who fled after the accident. There was no direct evidence defendant was the driver:

Defendant’s assertion that the car had been operated by an individual named Paul was not inconsistent with the evidence at trial. Although defendant’s request that the passing motorist not call 911 constituted evidence of consciousness of guilt, it is well settled that consciousness of guilt evidence is a “weak” form of evidence … . The failure of defendant to provide a more detailed description of Paul did little to disprove defendant’s hypothesis of innocence, given the general nature of the questions posed to her and their emphasis on contact information for Paul that defendant reasonably was not in a position to provide. Finally, the testimony of the investigator that the position of the driver’s seat in the car was inconsistent with the car being driven by someone who is 5 feet 10 inches tall, as opposed to defendant’s height of 5 feet 7 inches, may have been persuasive if there were other such circumstantial evidence, but no other evidence existed here. Giving the evidence the weight it should be accorded, therefore, we find that the People failed to establish, beyond a reasonable doubt, that defendant operated the car that had gone off the roadway … . People v Bradbury, 2020 NY Slip Op 02577, Fourth Dept 5-1-20

 

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THE GRAND JURY EVIDENCE OF TWO LACERATIONS ON THE VICTIM’S NECK, 3-4 AND 5-6 CENTIMETERS LONG, SUPPORTED THE TWO COUNTS OF FIRST DEGREE ASSAULT BASED UPON DISFIGUREMENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined the evidence presented to the Grand Jury was sufficient to support the assault first degree counts based upon disfigurement, i.e., two lacerations, 3-4 and 5-6 centimeters long, on the victim anterior neck:

… [T]he evidence before the grand jury included the testimony of the victim, the victim’s medical records, and photographs of the victim taken on the day of the incident. The evidence established that, as a result of the assault, the victim sustained “two significant lacerations to her anterior neck,” which were 3-4 and 5-6 centimeters long, respectively, with soft tissue defects and exposure of underlying subcutaneous fat. The lacerations required at least 10 sutures to close. We conclude that the grand jury could reasonably infer from the evidence that the sutured wounds resulted in permanent scars … . We further conclude that, when “viewed in context, considering [their] location on the body”… , the grand jury could reasonably infer that the scars would “make the victim’s appearance distressing or objectionable to a reasonable person observing her” … . People v Harwood, 2020 NY Slip Op 02594, Fourth Dept 5-1-20

 

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AFTER A TRAFFIC STOP AND A FOOT CHASE DEFENDANT WAS TAKEN INTO CUSTODY; NOTHING THE DEPUTY HAD SEEN AT THAT POINT PROVIDED PROBABLE CAUSE TO SEARCH THE DEFENDANT’S CAR; AFTER OPENING THE CAR DOOR AND SMELLING MARIJUANA THE DEPUTY CONDUCTED A WARRANTLESS SEARCH; THE DRUGS AND WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT)

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the deputy did not have probable cause for a warrantless search of defendant’s car and the drugs and weapon found in the car should have been suppressed. The deputy initiated a traffic stop because defendant allegedly made a turn without signaling. The defendant told the deputy he could not roll down his window or open the driver side door. After making “furtive” movements inside the car, the defendant opened the passenger side door and fled. The deputy chased defendant and took him into custody. When asked why he ran, defendant said there was a warrant for his address. The deputy returned to defendant’s car, opened the door, smelled marijuana and searched the car. The Fourth Department found that nothing the deputy had seen prior to his opening the car door provided probable cause for the search:

Under the Fourth Amendment of the United States Constitution, “a search conducted without a warrant issued by an impartial Magistrate is per se unreasonable unless one of the established exceptions applies” … . “One such exception is the so-called automobile exception’, under which State actors may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there” … . Applying our State Constitution, the Court of Appeals has held that when police want to search a vehicle at the time they arrest its occupant, “the police must… not only have probable cause to search the vehicle but . . . there must also be a nexus between the arrest and the probable cause to search” … . “[T]he requirement of a connection” between “the probable cause to search and the crime for which the arrest is being made” is “flexible” inasmuch as a court need not focus “solely on the crimes for which a defendant was formally arrested” … . “[T]he proper inquiry is simply whether the circumstances gave the officer probable cause to search the vehicle” … . When police officers stop a vehicle, they may have probable cause to search the vehicle under the automobile exception based “on grounds other than those that initially prompted [the officers] to stop the vehicle,” i.e., the probable cause may come to light after the stop… . …

Although defendant engaged in “furtive and suspicious activity” and his “pattern of behavior, viewed as a whole” was suspicious … , there was no direct nexus between the initial traffic stop for a traffic violation and the search of defendant’s vehicle. Furthermore, there was no direct nexus between the arrest of defendant and the search of his vehicle. Defendant made no statements to suggest that the vehicle contained contraband or evidence of a crime … , the deputy did not observe any contraband in plain view , the deputy did not find any contraband on defendant’s person when he took defendant into custody … , and it cannot be said that defendant’s “furtive movements” toward the center console lacked any innocent explanation or occurred under circumstances suggesting that criminal activity was afoot … . People v Johnson, 2020 NY Slip Op 02589, Fourth Dept 5-1-20

 

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THE EVIDENCE SUBMITTED TO THE GRAND JURY IN THIS DRUNK-DRIVING-ACCIDENT CASE SUPPORTED THE TWO COUNTS OF DEPRAVED INDIFFERENCE ASSAULT STEMMING FROM INJURIES SUFFERED BY THE TWO PASSENGERS; SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE COUNTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidence submitted to the Grand Jury supported the depraved indifference assault counts stemming from injuries suffered by the two passenger in a drunk driving accident after a police pursuit:

The … accident reconstruction revealed that defendant was driving 119 miles an hour five seconds before the accident, then slammed on his brakes and steered hard to the right, hurtling into the parking lot and striking a concrete barrier at approximately 60 miles per hour. * * *

Drunk driving cases do not ordinarily lend themselves to a finding of depraved indifference, nor does “every vehicular police chase resulting in death [or serious injury] . . . take place under circumstances evincing” it … . Unlike in cases where a defendant attempted to avoid harming others in the course of a chase … , however, the intoxicated defendant here was warned by one of his passengers that he should slow down and “was well aware that [he] was endangering [their] lives” by flouting traffic laws and fleeing a police officer at ludicrous speeds on local roads … . Moreover, the same passenger testified that defendant knew that the parking lot was a shortcut to another street and that he suddenly “turned into” it when she mentioned seeing a police cruiser. The grand jury could infer from this proof that defendant did not care about the welfare of his passengers and that he lost control of the vehicle not in an unsuccessful effort to navigate a bend in the road, but rather in a near-suicidal gambit to escape police by making an abrupt turn at high speed and trying to traverse the parking lot. It follows from those inferences that defendant “appreciated that he . . . was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences” … . Although innocent inferences could also be drawn from the evidence presented, legally sufficient proof nevertheless existed for the grand jury’s finding that defendant exhibited depraved indifference toward his passengers and, thus, Supreme Court erred in dismissing the two counts of assault in the first degree … . People v Edwards, 2020 NY Slip Op 02503, Third Dept 4-30-20

 

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PLAINTIFF-PASSENGER DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT-DRIVER’S NEGLIGENCE; DEFENDANT-DRIVER WAS STRUCK FROM BEHIND WHEN HE STOPPED QUICKLY AFTER AN SUV MERGED INTO DEFENDANT’S LANE (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff-passenger did not raise a question of fact about defendant-driver’s negligence in this traffic accident case. Plaintiff alleged defendant failed to keep a proper lookout when an SUV merged into defendant’s lane and stopped. Defendant was able to stop without hitting the SUV but was struck from behind by the Robbins vehicle:

“Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . “[W]here the lead driver is forced to brake and stop suddenly without striking the vehicle in front due to that vehicle coming to a sudden stop, there is no basis for imposing liability on that driver” … . Defendant testified at his deposition that he was driving in the right lane on a highway and that he saw the SUV move from the left lane to the middle lane. Defendant testified that, as the SUV was in the middle lane, he looked to his right to see if he “had an out to go” because there was a vehicle to the left of him. The SUV suddenly “jumped in front” of defendant without flashing a turning signal, hit the brakes and came to a complete stop. … Defendant braked and avoided hitting the SUV. Shortly thereafter, however, Robbins struck defendant’s vehicle in the rear. In view of the foregoing, defendant satisfied his moving burden by establishing that he was not negligent … . Guerin v Robbins, 2020 NY Slip Op 02511, Third Dept 4-30-20

 

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THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, over a dissent, determined the motion court applied the wrong criteria for assessing whether the defendant was prejudiced by the alleged ineffective assistance of counsel. Defendant moved to vacate his conviction, alleging defense counsel did not inform him of the deportation consequences of his guilty plea. The defendant’s chance of success at trial is irrelevant to whether defendant was entitled to a hearing. The First Department succinctly summarized the issues and the ruling as follows:

We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d) (i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims … . In the case at bar, however, as the dissent concedes, there is independent support for defendant’s assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant’s allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant’s alleged lack of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant’s desire to remain in the United States. The dissent’s reasoning is contradicted by the recent United States Supreme Court holding in Lee v United States (582 US __, 137 S Ct 1958, 1966 [2017]), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney’s erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant’s decision-making and whet her it was reasonable for one in defendant’s position, facing mandatory deportation, to choose to take a shot a trial. People v Lantigua, 2020 NY Slip Op 02557, First Dept 4-30-20

 

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