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DENIAL OF THE REQUEST TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE AND THE ADMISSION OF THE 911 CALL AS AN EXCITED UTTERANCE WERE NOT REVERSIBLE ERRORS (CT APP).

The Court of Appeals, over an extensive dissenting opinion, as well as another brief dissenting opinion, determined the denial of defendant’s request for a jury instruction on the lesser included offense of assault third degree, and the admission of the 911 call as an excited utterance was harmless error. The facts are explained only in the dissent and are not summarized here:

Defendant failed to “show that there [was] a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser included offense but not the greater” … . Although “[i]n determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant” … , charging the lesser included offense here “would [have] force[d] the jury to resort to sheer speculation” … .

Nor does Supreme Court’s admission of the call between the victim and the 911 operator require reversal. “A spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant’ is an exception to the prohibition on hearsay” … . “The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective power to be yet in abeyance'” … . Assuming, without deciding, that it was error to admit the 911 call, any such error would have been harmless … . People v Almonte, 2019 NY Slip Op 05185, CtApp 6-27-19

 

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COUNTY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENDANT TO SUBMIT A LATE NOTICE OF HIS INTENT TO PRESENT PSYCHIATRIC EVIDENCE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined County Court abused its discretion by not allowing defendant to serve a late notice of his intent to offer psychiatric evidence:

“Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of the evidence” (CPL 250.10[2]). Contrary to the defendant’s contention, the evidence he proffered, in opposition to the People’s motion, for the purpose of negating intent, constituted “psychiatric evidence” under the statute (CPL 250.10[1] … ). The defendant failed to provide the People with timely notice of his intent to offer this evidence. However, the determination as to whether late notice should be permitted is a discretionary one, which requires the court to weigh the defendant’s constitutional right to present witnesses in his own defense against the prejudice to the People arising from late notice … .

Here, the record indicates that the trial court failed to exercise any discretion over whether to permit the defendant to serve late notice of his intent to offer psychiatric evidence … . Exercising our own discretion, we conclude that, under the particular circumstances of this case, the defendant should have been granted permission to serve late notice, and the People’s preclusion motion therefore should have been denied. The evidence that the defendant previously had suffered auditory hallucinations had high probative value to corroborate the defendant’s testimony that he entered the home with the intent to aid a woman who was yelling, rather than to damage the house … . Further, the preclusion of testimony regarding those portions of the defendant’s conversation with the responding officer which involved his past auditory hallucinations, and his resultant hospitalization, deprived the jury of the full context of the interaction. Any prejudice to the People was substantially outweighed by the defendant’s extremely strong interest in presenting the evidence … . People v Morris, 2019 NY Slip Op 05160, Second Dept 6-26-19

 

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DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined a statement defendant made to his mother about needing the assistance of an attorney should not have been admitted. The error was deemed harmless however:

We agree with the defendant that the Supreme Court should not have admitted into evidence a statement the defendant made to his mother, during a recorded telephone call, that involved him invoking his right to counsel. During the telephone call, the defendant stated that, with the assistance of an attorney, he could “get around” the fact that he had touched the gun earlier in the day. The court initially ruled that this statement was inadmissible. However, during a pretrial proceeding, the People argued that this statement should be admitted, as it demonstrated the defendant’s consciousness of guilt. Over the defendant’s objection that this statement was inadmissible since it revealed his decision to engage legal representation, the court permitted its introduction into evidence. “It has long been the rule in this State that, once a criminal proceeding has formally commenced, the accused has an absolute constitutional and statutory right to the assistance of counsel at every stage of the proceeding” … . Accordingly, evidence which has the jury infer guilt from the fact that a criminal defendant exercised his or her right to counsel should not be admitted … . Here, the admission of this statement was an improper infringement on the defendant’s exercise of his right to counsel … . People v James, 2019 NY Slip Op 05150, Second Dept 6-26-19

 

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SEARCH OF A SUITCASE WAS A VALID SEARCH INCIDENT TO ARREST JUSTIFIED BY EXIGENT CIRCUMSTANCES, DESPITE THE FACT THAT DEFENDANT HAD BEEN HANDCUFFED AND WAS IN THE PRESENCE OF AS MANY AS EIGHT POLICE OFFICERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, over an extensive, two-justice dissenting opinion, determined that the search of a suitcase was a valid search incident to arrest, even though defendant, who had let go of the suitcase, had been handcuffed. Defendant had been observed by the arresting officer (Ayala) coming out of several stores and placing apparently stolen items into the suitcase. At the time the suitcase was searched, defendant was handcuffed and had been approached on the street by approximately eight police officers:

Officer Ayala’s testimony that a knife was recovered from both defendant and Chauncey also established that there were exigent circumstances justifying the search of the suitcase … . …

… [A]n officer need not affirmatively testify to the exigency … . Rather, the exigent circumstances need only be inferred from the circumstances of the arrest … . …

Ayala’s search of the suitcase was also justified to prevent the loss or destruction of evidence, as Ayala believed defendant and codefendant Chauncey had stolen clothing from approximately three stores and placed the clothing in the suitcase … . The dissent continues to ignore the facts that the suitcase was large enough to conceal a weapon and that the officer had just seen defendant stealing merchandise and placing it in the suitcase. Officer Ayala did not know whether there were weapons contained in the bag. …

The testimony of Officer Ayala established that the suitcase was not in the exclusive control of the police at the time of the search. It remained at defendant’s feet where he dropped it. Additionally, it has been consistently held that “[w]hether in fact defendant could have had access to the briefcase at the moment it was being searched is irrelevant” … .

That defendant was handcuffed in no way negates a finding of exigent circumstances justifying a warrantless search … . Although defendant was handcuffed during the search of the suitcase, there was a “realistic possibility” that he could have used means other than his hands “such as kicking or shoving the arresting officer – to disrupt the arrest process in order to gain a weapon or destroy evidence” … . People v Harris, 2019 NY Slip Op 05099, First Dept 6-25-19

 

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ALTHOUGH PLAINTIFF FELL DURING A STORM, THERE WAS EVIDENCE THE AREA WAS ICY BEFORE THE STORM, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this slip and fall case was properly denied. Although a storm was in progress when plaintiff fell, there was evidence there was ice in that area before the storm:

Although the meteorological records and the expert meteorological affidavits demonstrate that there was a storm in progress when the accident happened, a warehouse associate employed by [defendant] testified at his deposition that he saw ice on the ground the loading dock about a week before plaintiff’s fall and defendants submitted no evidence as to when the area was last inspected or cleaned before the accident. In these circumstances, there are triable issues of fact as to whether plaintiff’s fall was caused by pre-existing ice on the ground or the storm in progress and whether [defendants] had a reasonable time to remedy any alleged icy condition before the date of plaintiff’s fall … . Perez v Raymours Furniture Co., Inc., 2019 NY Slip Op 05083, First Dept 6-25-19

 

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THE FACTS SUPPORTED CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER, DEFENDANT WAS SEEN IN POSSESSION OF THE WEAPON SEVERAL MINUTES BEFORE THE DEFENDANT APPROACHED THE VICTIM (CT APP).

The Court of Appeals, affirming defendant’s conviction, noted that the consecutive sentences for possession of a weapon and murder were supported by the facts:

“So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible”… . Here, the record supports Supreme Court’s imposition of consecutive sentences. Video surveillance evidence showed defendant in possession of the gun several minutes before approaching the victim, supporting the conclusion that defendant possessed the weapon for a sufficient period of time before forming the specific intent to kill. Thus, consecutive sentencing was permissible. People v Malloy, 2019 NY Slip Op 05061, CtApp 6-25-19

 

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SURVEILLANCE VIDEO CONSTITUTED BRADY MATERIAL WHICH COULD HAVE AFFECTED THE OUTCOME OF THE TRIAL, THE PROSECUTOR HAD SEEN THE VIDEO BUT TOLD THE JURY NO VIDEO EXISTED, CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People’s failure to turn over to the defense a surveillance video which captured people (not the defendant) present at the time the victim was shot, as well as the victim falling, required a new trial. The prosecutor had seen the video and considered it irrelevant. In her summation, the prosecutor said there was no video of the incident:

In New York, where the defense “did not specifically request the information, the test of materiality is whether there is a reasonable probability that had it been disclosed to the defense, the result would have been different'” … . Defendant concedes that the “reasonable probability” standard applies here. In determining materiality, the “question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence” … . The “defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict” … . Defendant need only show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” … . * * *

It requires no frame-by-frame review to grasp that the video would have become the focal point of defendant’s trial. It would have set the scene of the murder, identified other potential witnesses, served to impeach eyewitness testimony, and provided a basis for an argument that other suspects might have been involved in the shooting. Instead of playing that role at trial, the video was withheld from the defense and the jury was told it did not exist. The aggregate effect of the suppression of this evidence undermines confidence in the verdict and therefore defendant is entitled to a new trial. People v Ulett, 2019 NY Slip Op 05060, CtApp 6-26-19

 

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DEFENDANT RAILROAD’S MOTION FOR SUMMARY JUDGMENT IN THIS FEDERAL EMPLOYERS’ LIABILITY ACT (FELA) ACTION BY A RAILROAD EMPLOYEE WHO WAS ASSAULTED BY A PASSENGER PROPERLY DENIED (FIRST DEPT).

The First Department determined the defendant railroad’s motion for summary judgment in this Federal Employers’ Liability Act (FELA) by a railroad employee assaulted by a passenger was properly denied. The court explained the evidentiary criteria under the FELA:

The Federal Employers’ Liability Act (FELA) (45 USC § 51 et seq.) provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad’s negligence. In an action under FELA, “the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability” … . However, these elements are “substantially relaxed” and “negligence is liberally construed to effectuate the statute’s broadly remedial intended function” … . A claim under FELA “must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing plaintiff’s injury” … . “A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee’s injury” … .

To establish the element of foreseeability, a plaintiff must show that the defendant had either actual or constructive notice of the defective condition (id.). However, notice generally presents an issue of fact for the jury … . “As with all issues under FELA, the right of the jury to pass on this issue must be liberally construed, with the jury’s power to draw inferences greater than in a common-law action” … .

Under the foregoing relaxed standard, there is sufficient evidence to raise an issue of fact concerning defendant’s actual or constructive notice of a risk of assault to conductors on the New Haven Line. Plaintiff testified that she was previously assaulted by a passenger, and that there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares, which caused her to fear for her safety. Plaintiff also testified that she has called the MTA’s rail traffic controllers for police assistance at least 250 times to deal with abusive passengers; another conductor was punched in the face and knocked out on the New Haven Line; a passenger attempted to stab and rob another conductor on the Harlem Line. Stephney v MTA Metro-N. R.R., 2019 NY Slip Op 05004, First Dept 6-20-19

 

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DEFENDANT WAS NOT PROPERLY NOTIFIED OF THE ALLEGED VIOLATIONS OF PROBATION AND THE FINDING THAT DEFENDANT VIOLATED A CONDITION WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was not properly notified of alleged violations of probation and the proof did not support a finding that defendant violated a condition of probation:

Where a violation of probation is alleged to have occurred, a written statement must be filed with the court and provided to defendant “setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred” (CPL 410.70 [2] …). Here, the details of the alleged violations in the uniform court report only included the   that defendant violated condition 2, which required her to obey all state and federal laws, by engaging in conduct that led to her September 2015 and March 2016 arrests. Although a different section of the uniform court report summarizing defendant’s probation supervision referenced other incidents that County Court made findings with respect thereto, the uniform court report only alleged that defendant violated condition 2 of the terms of her probation (see CPL 410.70 [2]). Moreover, defendant’s probation officer acknowledged in her testimony that defendant was not charged in the uniform court report with violating conditions 8, 12 and 16. Notwithstanding the testimony that was allowed at the hearing with regard to conditions 8, 12 and 16, defendant was not provided with a written statement informing her that she was also being charged with violating these conditions of her probation. Accordingly, County Court’s finding that defendant violated these terms of her probation was improper (see CPL 410.70 [2]…). …

Condition 2 of the terms of defendant’s probation required her to obey all federal, state and local laws and notify her probation officer immediately if questioned or arrested by a law enforcement agency or if convicted of a new offense. In support of its allegation that defendant violated this condition, the People adduced the testimony of defendant’s probation officer who testified, in relevant part, that defendant notified her of both the September 2015 and March 2016 arrests and charges. Beyond the probation officer’s testimony that defendant had been arrested on two occasions, no additional evidence or proof was offered as to the underlying acts. Accordingly, County Court’s finding that defendant violated condition 2 of her probation was not supported by a preponderance of the evidence … . People v Johnson, 2019 NY Slip Op 05018, Third Dept 6-20-19

 

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PROCESS SERVER’S AFFIDAVIT OF SERVICE WAS REBUTTED BY SUFFICIENT EVIDENCE TO WARRANT A HEARING ON WHETHER DEFENDANT WAS SERVED WITH THE SUMMONS AND COMPLAINT IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the process server’s affidavit was rebutted by sufficient proof to warrant a hearing on whether defendant, David, was served with the summons and complaint in this foreclosure action:

A process server’s affidavit of service gives rise to a presumption of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … . However, “[w]here a defendant submits a sworn denial of receipt of process containing specific facts to rebut the statements in the process server’s affidavit, the presumption of proper service is rebutted and an evidentiary hearing is required” … .

Here, an affidavit of service, in which the process server attested to having served David with copies of the summons and complaint by personal delivery to him at his residence at the subject property in Williston Park on April 16, 2014, at 8:08 p.m., constituted prima facie evidence of proper service on David … . However, in support of the motion, David submitted an affidavit of Patricia, who attested that David suffered a brain aneurysm in April 2008 and had resided in a nursing home in Glen Cove since July 2008 and, thus, could not have been personally served at the residence on April 16, 2014. These facts were supported by documents submitted with the affidavit, including minutes of a guardianship proceeding dated June 8, 2012, wherein the court noted that David resided in a nursing home in Glen Cove. Caliber Home Loans, Inc. v Silber, 2019 NY Slip Op 04907, Second Dept 6-19-19

 

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