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ALTHOUGH THE COMPLAINANT IDENTIFIED THE DEFENDANT FROM A PHOTO ARRAY IN A PROCEDURE CONDUCTED BY A POLICE OFFICER, THERE WAS NO PROOF OF THE BASIS FOR DEFENDANT’S ARREST BY ANOTHER OFFICER, THEREFORE DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not demonstrate that the officer who arrested defendant had probable cause to do so. Therefore defendant’s motion to suppress should have been granted. The People presented evidence that Officer Gorman conducted a photo identification procedure and, after the robbery complainant identified the defendant, Officer Gorman issued an “I-card.” But there was no evidence of the arresting officer’s basis for arrest:

Under the fellow officer rule, “even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest will be lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest'” … .The evidence presented by the People did not establish that the officer who actually arrested the defendant had probable cause to do so … . Officer Gorman testified that he issued an I-Card for the defendant, but he also testified that the defendant was arrested “on a different matter.” The People did not present any testimony from the arresting officer as to what information he possessed or how he received that information … . Therefore, contrary to the People’s contention, there was insufficient evidence from which to infer that the police arrested the defendant pursuant to the I-Card or at the direction of Officer Gorman … . Furthermore, the People presented no evidence at the hearing regarding the circumstances of the defendant’s arrest or the charges on which he was arrested, nor do they argue on appeal that there was any source of probable cause for the defendant’s arrest other than the I-Card. People v Hightower, 2019 NY Slip Op 07280, Second Dept 10-9-19

 

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PHYSICAL INJURY IS NOT AN ELEMENT OF ATTEMPTED MURDER; REQUEST FOR MISSING WITNESS JURY INSTRUCTION BASED UPON THE COMPLAINANT’S FAILURE TO TESTIFY PROPERLY DENIED; PERSISTENT FELONY SENTENCING PROCEDURE WAS NOT FOLLOWED (SECOND DEPT).

The Second Department affirmed defendant’s attempted murder conviction, noting that proof of attempted murder does not require proof of serious injury, or any injury at all. The court further noted that the complainant was not under the People’s control and therefore the request for the missing witness jury instruction was properly denied. Defendant, however, was not properly sentenced:

… [W]e note that while none of the complainant’s injuries in this case were life-threatening, “the crime of attempted murder does not require actual physical injury to a victim at all” … . Here, the forensic evidence showing that two separate knives were used in the attack, coupled with the fact that the defendant, still holding a knife, chased the complainant outside the apartment complex and broke off his attack only after a bystander intervened, provides factually sufficient evidence of the defendant’s intent to kill.

Contrary to the defendant’s contentions, the County Court properly declined to give a missing witness charge with regard to the complainant, as the record reflects that the complainant was not under the People’s control … . …

The sentencing minutes do not establish that the County Court asked the defendant whether he wished to controvert any allegations made in the statement filed pursuant to CPL 400.16(2) … . Accordingly, we vacate the sentences and remit the matter to the County Court, Suffolk County, for resentencing in accordance with CPL 400.16 … . People v Gunn, 2019 NY Slip Op 07279, Second Dept 10-9-19

 

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THE STANDARD OF PROOF REQUIRED IN AN ENTIRELY CIRCUMSTANTIAL-EVIDENCE CASE WAS NOT MET IN THIS MURDER PROSECUTION; CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the conviction was against the weight of the evidence. There was no forensic evidence linking defendant to the murder, which occurred 11 years before the trial, and the circumstantial evidence merely raised the possibility defendant committed the murder. The decision recounts the evidence in a level of detail which cannot be fairly summarized here:

Where the prosecution relies entirely on circumstantial evidence, before the fact-finder can draw an inference of guilt, that inference must be the only one that can fairly and reasonably be drawn from the proven facts, and the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The inferences to be drawn from the People’s evidence in this case as to coincidence of time, place, and behavior are sufficient only to create suspicion. The evidence presented at trial is not inconsistent with the defendant’s innocence, and any determination of guilt requires too much speculation to fill the gaps in the People’s evidence to constitute proof beyond a reasonable doubt. * * *

[T]he evidence presented at trial supports the possibility that the defendant was the person who killed Perez. “[H]owever, speculation and conjecture are no substitute for proof beyond a reasonable doubt” … . It is not enough for the jury to determine “that the defendant is probably guilty” … . The People must prove beyond a reasonable doubt that the defendant is the person who committed the crime. On this record, we find that the jury was not justified in finding the defendant guilty beyond a reasonable doubt. People v Clavell, 2019 NY Slip Op 07271, Second Dept 10-10-19

 

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PLAINTIFFS FELL FROM A LIFT TRUCK WHICH WAS STRUCK BY A BUS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; HEARSAY ALONE WILL NOT DEFEAT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted, noting that hearsay alone will not defeat a summary judgment motion:

Plaintiffs … established prima facie that defendants are liable for their injuries under Labor Law § 240(1) by submitting evidence that they fell to the ground and were injured when the lift truck upon which they were working moved when it was struck by a passing bus … . Moreover, the lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent … . In opposition, defendants failed to raise an issue of fact. They rely instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment … . South v Metropolitan Transp. Auth., 2019 NY Slip Op 07213, First Dept 10-8-19

 

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TRIAL EVIDENCE RENDERED THE SINGLE-COUNT INDICTMENT DUPLICITOUS REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the trial evidence rendered the single-count indictment duplicitous. Defendant was charged with criminal mischief:

We agree with defendant, however, that the single-count indictment was rendered duplicitous by the trial evidence. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Thus, “acts which separately and individually make out distinct crimes must be charged in separate and distinct counts” … . Here, the indictment charged defendant with damaging “the road surface at the intersection of Woolhouse Road and County Road #32” and thus was not facially defective. At trial, however, the evidence established that defendant committed two distinct offenses by damaging two different portions of the road at that intersection at two different times. Consequently, “[r]eversal is required because the jury may have convicted defendant of an unindicted [act of criminal mischief], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges . . . , as well as the danger that . . . different jurors convicted defendant based on different acts … . People v Kniffin, 2019 NY Slip Op 07176, Fourth Dept 10-4-19

 

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INSUFFICIENT PROOF OF THE TESTING USED TO DETERMINE THE SUBSTANCES WERE CONTRABAND DRUGS, POSSESSION OF DRUGS CHARGE ANNULLED (THIRD DEPT).

The Third Department annulled the possession of drugs charge because the proof of the testing procedures used on the substances alleged to be drugs was insufficient:

When positive results of a test of suspected contraband drugs are used as evidence at a disciplinary hearing, 7 NYCRR 1010.5 (d) directs that certain documents, including “a statement of the scientific princip[les] and validity of the testing materials and procedures used,” be included in the record. This required document does not appear in the record, nor was it provided to petitioner despite his specific request and objections. Further, testimony from the testing officer offered no evidence of the procedures used. In view of the foregoing, that part of the determination finding petitioner guilty of possessing drugs is not supported by substantial evidence and must be annulled … . Matter of McFarlane v Annucci, 2019 NY Slip Op 07123, Third Dept 10-3-19

 

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NEW JERSEY PAROLEE’S CONSENT TO SEARCH AS A CONDITION OF PAROLE DID NOT APPLY TO A SEARCH DONE BY NEW YORK CITY POLICE IN QUEENS; STATEMENTS MADE WITHOUT MIRANDA WARNINGS, INCLUDING THE CONSENT TO SEARCH, AS WELL AS THE FRUITS OF THE SEARCH, PROPERLY SUPPRESSED (SECOND DEPT).

The Second Department determined Supreme Court properly suppressed statements made without Miranda warnings, including the consent to search a safe, as well as the firearms seized from the safe. Although defendant was on parole in New Jersey, the search was done in Queens by New York City police. Therefore the consent to search provided by parolees as a condition of parole was not applicable:

… [A]lthough Soto had consented to searches by New Jersey parole officers as a condition of his parole, the record reveals that the NYPD officers, not the New Jersey parole officers, searched the safe after they were notified that the New Jersey parole officers found what appeared to be heroin in the apartment. Accordingly, the People cannot rely on Soto’s consent given as a condition of parole to justify the warrantless search of the safe … . Furthermore, since the NYPD officers failed to advise Soto of his Miranda rights prior to questioning him and obtaining his consent to open the safe, his statements regarding the safe and his consent to open it cannot be characterized as voluntary … . Moreover, the People failed to proffer any argument as to why the warrantless search was proper as to Santiago. Accordingly, we agree with the Supreme Court’s determination granting those branches of Soto’s omnibus motion which were to suppress the firearms evidence and the statements made by him to the NYPD officers without the benefit of Miranda warnings, and that branch of Santiago’s omnibus motion which was to suppress the firearms evidence … . People v Santiago, 2019 NY Slip Op 07099, Second Dept 10-2-19

 

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THE PRESUMPTION OF SUGGESTIVENESS RAISED BY THE PEOPLE’S FAILURE TO PRESENT THE PHOTO ARRAYS USED BY THE WITNESS TO IDENTIFY THE DEFENDANT WAS OVERCOME BY THE EVIDENCE OF THE SHEER NUMBER OF PHOTOS VIEWED BY THE WITNESS (SECOND DEPT).

The Second Department determined the witness’s identification of the defendant from photographs properly survived the motion to dismiss. The presumption of suggestiveness was overcome by the evidence of the sheer number of photographs shown to the witness. The court also held that rape first degree is a lesser included count of predatory sexual assault which was dismissed by the conviction on the higher court:

… [A]lthough the People did not produce in court the photographic arrays displayed through the use of the photo manager system, which gives rise to a presumption of suggestiveness, the People nevertheless rebutted that presumption and sustained their initial burden through the testimony of the detective, which established that she utilized the various databases applying the description of the perpetrator supplied by the complainant … . The detective testified that the complainant was shown the computer-generated photo arrays a day after the incident occurred and then again three days later. The detective’s unrebutted testimony established that 700 to 1,000 photographs were generated by the photo manager system, which were displayed in smaller arrays of photographs, from which, during the third viewing session, the complainant identified the defendant as the person who assaulted her … . “[W]hen a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of photographs, the sheer volume and scope of [the] procedure militates against the presence of suggestiveness'” … . Moreover, the complainant eventually identified the defendant in a lineup. People v Castello, 2019 NY Slip Op 07085, Second Dept 10-2-19

 

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IN DISMISSING FATHER’S PETITION AND GRANTING MOTHER’S MOTION TO TERMINATE HER CHILD SUPPORT, FAMILY COURT RELIED ON HEARSAY AND EVIDENCE NOT TESTED BY CROSS-EXAMINATION, MATTER SENT BACK FOR A HEARING ON FATHER’S PETITION TO MODIFY CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for modification of child support should not have been denied and mother’s motion to terminate her child support obligations should not have been granted based on hearsay and evidence not tested by cross-examination:

… [F]ather filed a petition to modify the child support order … . The father asserted, as a change of circumstance, that the child was living with him. The mother moved for summary judgment dismissing the father’s petition, and for termination of her child support obligation, on the ground of parental alienation, contending that the father had unjustifiably frustrated and interfered with her relationship with the child. * * *

The Family Court, in making its determination that the father alienated the child from the mother, improperly relied on inadmissible information that had been provided at court conferences in earlier proceedings before a different judge. The court also improperly relied on hearsay statements and conclusions by an expert, whose credibility was not tested by either party, from an earlier forensic evaluation, and on statements and conclusions by two therapists, whose opinions and credibility were not tested by either party, made at a conference before a different judge … .

Accordingly, we disagree with the Family Court’s determination to grant the mother’s motion for summary judgment and for termination of her child support obligation, we reinstate the father’s petition to modify the child support order … , and we remit the matter to the Family Court … for a hearing on that petition. Matter of McNichol v Reid, 2019 NY Slip Op 07073, Second Dept 10-2-19

 

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DEFENDANT’S DRUG SALE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department reversed defendant’s drug-sale conviction as against the weight of the evidence. The police saw a woman approach defendant and the woman had a $10 bag of crack cocaine in her mouth when the police stopped her. The defendant had $10 in his pocket but no drugs on him. No exchange between the two was observed:

Two police officers testified that they observed defendant in a high drug trafficking area. They both saw defendant approach a man and talk to him. The man gave defendant money and there was an “exchange,” but the officers did not see what was exchanged. Shortly thereafter, one of the officers witnessed a woman approach defendant. The officer saw the woman speak to defendant and then touch his hand, but the officer did not see any money or drugs exchanged. Defendant and the woman separated, and the officer approached the woman. The officer identified herself, said that she just saw what happened, and heard the woman chewing on something. She asked the woman to spit out the object, which turned out to be a small bag containing $10 worth of crack cocaine. The officer never saw the woman put the bag in her mouth or even bring her hand to her mouth. The police then arrested the woman and defendant. Defendant did not have any drugs on him, but had $10 in his sweatshirt pocket and other denominations of cash in his pants pocket.

In the exercise of our factual review power, we conclude that the People did not prove beyond any reasonable doubt that defendant sold cocaine to the woman, which was the only crime charged. The officer who witnessed the transaction acknowledged she did not observe an exchange of anything, including money, drugs or unidentified objects, between defendant and the woman. In addition, the People’s theory that the woman put the bag in her mouth after purchasing it from defendant was contradicted by the officer’s testimony that she never saw the woman put anything into her mouth, or even put her hand to her mouth. Furthermore, the People’s theory that defendant sold two $10 bags, one to the man and the other to the woman, was inconsistent with the cash found on defendant. People v Correa, 2019 NY Slip Op 07017, First Dept 10-1-19

 

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