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AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined statements made by defendant when he was handcuffed in the back of a police car should have been suppressed. The officer (Nellis) asked the defendant “What happened?” after the initial investigation was over:

After Nellis arrived at the scene and discovered defendant in the driveway, he entered the residence and found the victim being treated by defendant’s mother. The victim was convulsing and making gurgling sounds, and Nellis observed bruises and dried blood on her face. Nellis radioed emergency services to respond immediately, exited the residence and informed defendant that he was being detained for questioning. The officer did not immediately ask defendant what happened, but, after defendant was handcuffed and placed in the backseat of the patrol car, Nellis asked defendant, “What happened?” In response, defendant told him that he “snapped” and he “wanted her to feel the pain he had.” Defendant also admitted, “I choked her with a rope but never struck her in the face.” County Court allowed the statements, reasoning that the purpose of Nellis’ questioning was to clarify the nature of the volatile situation rather than to elicit evidence of a crime. We disagree.

The incident had been completed, the parties had been identified and medical assistance requested; defendant had been cooperative and responsive. “[W]here criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation” … . …

We cannot say beyond a reasonable doubt that these statements did not contribute to defendant’s conviction and, as such, the error was not harmless. People v McCabe, 2020 NY Slip Op 02288, Third Dept 4-16-20

 

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EVIDENCE OF DOMESTIC VIOLENCE AND MARIJUANA USE WAS NOT SUFFICIENT TO FIND THAT FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the neglect finding against father based upon domestic violence and marijuana use:

… ” [A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'”… . However, “exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment” … . Here, we agree with the father’s contention that, with respect to that allegation, the preponderance of the evidence did not establish that he neglected the child … .

The father contends, and ACS [Administration of Children’s Services] concedes, that the evidence of the father’s use of marijuana was insufficient to establish that the child was neglected. We agree. The evidence failed to demonstrate that the father’s marijuana use caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the child … . Matter of Simone C.P. (Jeffry F.P.), 2020 NY Slip Op 02270, Second Dept 4-9-20

 

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BECAUSE MOTHER’S ATTORNEY APPEARED MOTHER WAS NOT IN DEFAULT; FAMILY COURT’S REFUSAL TO ADMIT DOCUMENTARY EVIDENCE OFFERED BY MOTHER’S ATTORNEY DEPRIVED MOTHER OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was not in default because her attorney appeared and the court’s refusing to admit documentary evidence offered by mother’s attorney deprived mother of her right to due process of law:

The mother failed to appear … when continued fact-finding on the permanent neglect petition was scheduled, and an adjournment was granted. When the mother failed to appear on the next hearing date, … the mother’s counsel stated that she would be participating in the proceeding on the mother’s behalf and sought to admit into evidence certain documents. … [T]he mother was, therefore, not in default with respect to the fact-finding hearing … .

The Family Court’s refusal to permit the mother’s counsel to admit into evidence the documentary evidence on behalf of the mother based upon the mother’s failure to appear … , violated the mother’s right to due process. ” A parent has a right to be heard on matters concerning her [or his] child and the parent’s rights are not to be disregarded absent a convincing showing of waiver'” … . Matter of Amira W.H. (Tamara T.H.), 2020 NY Slip Op 02264, Second Dept 4-9-20

 

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ALTHOUGH IT WAS ERROR TO ALLOW THE PROSECUTION TO CROSS-EXAMINE A DEFENSE WITNESS ABOUT PRIOR UNCHARGED OFFENSES ALLEGEDLY INVOLVING THE DEFENDANT, THE ERROR WAS HARMLESS; THE DISSENTERS ARGUED THE ERROR WAS REVERSIBLE (FIRST DEPT).

The First Department, over a two-justice dissent, determined, although the trial court erred in allowing cross-examination of a defense witness (and co-defendant), Calderon, about prior uncharged offenses allegedly involving defendant, the error was harmless. The dissenters argued the error was reversible:

We agree with the dissent that the prosecutor improperly cross-examined Calderon concerning three other crimes in which he had left the scene in a dark SUV. Some of the questions included a partial or complete recitation of the license plate number of the SUV used in the instant crime. This was a clear attempt to associate defendant with uncharged crimes, and the court should have sustained defense counsel’s objections to this line of questioning. Similarly, the prosecutor should not have made two references in her summation to the use of this “getaway vehicle” in other crimes when discussing Calderon’s testimony. * * *

The evidence at trial demonstrates that there is no “significant probability, rather than only a rational possibility,” that the jury would have acquitted defendant had it not been for the references to the SUV’s connection with Calderon’s other crimes … . People v Vasquez, 2020 NY Slip Op 02237, First Dept 4-9-20

 

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ATTORNEY FOR THE CHILD PROPERLY ALLOWED TO ADOPT THE NEGLECT PETITION AFTER THE PETITIONER REQUESTED THE WITHDRAWAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court, determined the attorney for the child (AFC) was properly allowed to proceed with the neglect petition after the petitioner requested to withdraw the petition. However the evidence of educational and medical neglect was insufficient:

… [W]e perceive no error or abuse of discretion in Family Court declining to dismiss the petitions and allowing the attorney for the children to adopt the petitions and proceed on them (see Family Ct Act § 1032 [b] …). Turning to the merits, as relevant here, a party seeking to establish neglect must prove, by a preponderance of the evidence, that a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying [him or her] with adequate . . . education in accordance with the provisions of part one of article [65] of the [E]ducation [L]aw, or medical . . . care, though financially able to do so or offered financial or other reasonable means to do so” … . Matter of Abel XX. (Jennifer XX.), 2020 NY Slip Op 02129, Third Dept 4-2-20

 

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THE PEOPLE DID NOT DEMONSTRATE THE IMPOUNDMENT OF DEFENDANT’S CAR AND THE INVENTORY SEARCH WERE LAWFUL; SEIZED EVIDENCE SUPPRESSED AND INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined the People did not demonstrate the impoundment of defendant’s car and the inventory search which turned up a weapon and a marijuana cigarette were lawful. Therefore the seized items should have been suppressed. The defendant parked in a visitor’s space and went into the police station to pick up a friend’s property. After presenting his ID, the police discovered a bench warrant, arrested him, impounded his car and conducted an inventory search:

The People failed to establish the lawfulness of the impoundment of the defendant’s car and subsequent inventory search … . The arresting officer testified that the defendant’s vehicle was legally parked in a visitor’s parking space, and the officer was unaware of posted time limits pertaining to the visitor parking spaces. Although the officer testified that he impounded the defendant’s vehicle to safeguard the defendant’s property against a potential burglary, the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had parked his vehicle. Thus, the People failed to establish that the impoundment of the defendant’s vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … . People v Weeks, 2020 NY Slip Op 02198, Second Dept 4-2-20

 

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DENYING VISITATION TO MOTHER WHO HAD NOT SEEN THE CHILD IN NINE YEARS BUT HAD GAINED EMPLOYMENT AND STOPPED ABUSING DRUGS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE; FAMILY COURT GAVE UNDUE WEIGHT TO THE FORENSIC EVALUATOR’S FINDINGS AND TO MOTHER’S EMOTIONAL OUTBURSTS AT THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the denial of visitation to mother in this modification-of-visitation proceeding was not supported by the evidence. Mother had not seen the child in nine years but demonstrated she was employed and had stopped abusing drugs. Family Court gave undue weight to the findings of a forensic evaluator and to mother’s emotional state during the hearing:

In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.

Family Court also found that the mother could not control her emotions during the trial. Although we do not discount a parent’s emotional stability as one factor in the best interests analysis, there was little evidence, if any, indicating that the mother displayed the same emotional outbursts either with the children that she had just regained custody of or outside the courtroom setting. Accordingly, under the circumstances of this case, any inability of the mother to control her emotions at the hearing has little relevance … . Matter of Jessica D. v Michael E., 2020 NY Slip Op 02133, Third Dept 4-2-20

 

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DISCLOSURE OF WITNESS CONTACT INFORMATION SHOULD HAVE BEEN DELAYED UNTIL 15 DAYS BEFORE TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined disclosure of contact information re: the complainant’s mother and two 911 callers must be delayed until 15 days before trial:

Where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in directing immediate disclosure of the subject materials to counsel for the defendant, counsel’s investigator, and the defendant. Under the particular facts and circumstances of this case, the Supreme Court should have delayed disclosure of the address and contact information of the complainant, and of the name, address, and contact information of the complainant’s mother and the individuals identified as the first and second 911 callers … . People v Harper. 2020 NY Slip Op 02193, Second Dept 4-2-20

 

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THE TORTIOUS INTERFERENCE WITH CONTRACT AND DEFAMATION CAUSES OF ACTION WERE NOT REFUTED BY DOCUMENTARY EVIDENCE AND WERE ADEQUATELY PLED (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff had stated causes of action for tortious interference with contract and defamation and the actions should not have been dismissed on either the “documentary evidence” or “failure to state a cause of action” ground:

Turning first to CPLR 3211 (a) (1), a motion to dismiss pursuant to this provision “will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” … . What may be deemed “documentary evidence” for purposes of this subsection is quite limited. “Materials that clearly qualify as documentary evidence include documents . . . such as mortgages, deed[s], contracts, and any other papers, the contents of which are essentially undeniable” … . Here, Supreme Court relied upon the statements taken during defendant’s investigation, as well as its non-harassment policy. As plaintiff argues, even sworn affidavits have been held inadequate to meet this statutory standard, and defendant’s submissions here do not qualify as documentary evidence … . …

The grounds for dismissal under CPLR 3211 (a) (7) are also strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits … . …

To establish a claim for tortious interference with a contract, the plaintiff must allege “the existence of [his or her] valid contract with a third party, [the] defendant’s knowledge of that contract, [the] defendant’s intentional and improper procuring of a breach, and damages” … . Here, plaintiff’s complaint alleged that a valid contract existed between plaintiff and the distributor, that defendant intentionally spread “false, specious and salacious accusations against [p]laintiff,” and that such conduct “had no good faith or justifiable cause” and did not “protect an economic interest.” Liberally construing these allegations, as we must, taking all of the alleged facts as true, and giving plaintiff every favorable inference … , they do not fail to state a claim.

The defamation claim will ultimately require “proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se'” … . Here, the complaint sets forth the particular words complained of and the damages plaintiff allegedly sustained … . Carr v Wegmans Food Mkts., Inc., 2020 NY Slip Op 02141, Third Dept 4-2-20

 

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A FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF THE LOW COPY NUMBER (LCN) DNA EVIDENCE AND THE EFFICACY OF A FORENSIC STATISTICAL TOOL (FST); THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge concurrence, ruled a Frye hearing should have been held to the determine admissibility of low copy number (LCN) DNA evidence and the efficacy of the forensic statistical tool (FST) used to conduct the statistical analysis. The abuse of discretion was deemed harmless however:

At the time this motion practice was initiated no court had completed a Frye hearing with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court …—had conducted such a hearing with respect to LCN testing.  * * *

… [T]here was “marked conflict” with respect to the reliability of LCN DNA within the relevant scientific community at the time the LCN issue was litigated in this case … . * * *

… FST is a proprietary program exclusively developed and controlled by [the New York City Office of Chief Medical Examiner (OCME)]. The sole developer and the sole user are the same. That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned by Frye” … . It is an invitation to bias. People v Williams, 2020 NY Slip Op 02123, CtApp 3-31-20

Similar issues and result in People v Foster-Bey, 2020 NY Slip Op 02124, CtApp 3-31-20

 

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