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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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THE WARRANTLESS SEARCH OF DEFENDANT’S VEHICLE WAS NOT JUSTIFIED UNDER THE AUTOMOBILE EXCEPTION OR AS A LIMITED SAFETY SEARCH, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress a handgun found in his vehicle and a post-seizure statement was properly granted:

… [O]fficers responded to the complainant’s home after receiving a call that he had been threatened by defendant. The complainant told an officer that defendant threatened to shoot him and that he believed the threat was serious because defendant had been in possession of a black handgun prior to the instant incident. Defendant, who was seated in his truck, which was parked in front of the complainant’s home, acknowledged that he had previously said he would shoot the complainant if the complainant entered defendant’s property. Based on that information and defendant’s admissions that he owned a rifle, which was at his home, and that he had a Virginia pistol permit but no New York pistol permit, the officers searched defendant’s person but recovered no weapons. The officers then searched the area near the driver’s seat of defendant’s truck, from which they recovered a loaded handgun. …

The automobile exception to the warrant requirement permits a police officer to ” search a vehicle without a warrant when [the officer has] probable cause to believe that evidence or contraband will be found there’ ” … . [T]he police did not have probable cause to search defendant’s vehicle after they searched him and determined that there was no immediate threat to their safety … , inasmuch as defendant was not alleged to have brandished a gun at the scene, there was inconclusive evidence that he actually threatened the complainant at the scene, defendant did not engage in any suspicious or furtive movements, and the officers did not observe any weapons or related contraband in the vehicle or on defendant’s person … . …

… [T]he officers’ search of defendant’s vehicle was not justifiable as a limited safety search. Probable cause is not required for a limited search of a vehicle ” where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion’ ” … . However, the Court of Appeals has “emphasized . . . that a reasonable suspicion alone will not suffice” and that “the likelihood of a weapon in the [vehicle] must be substantial and the danger to the officer’s safety actual and specific” … . People v Pastore, 2019 NY Slip Op 06930, Fourth Dept 9-27-19

 

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THERE WAS SUFFICIENT EVIDENCE DEFENDANT INTENTIONALLY AIDED THE PRINCIPALS IN THE KIDNAPPING; THE EVIDENCE THAT DEFENDANT CONSTRUCTIVELY POSSESSED A WEAPON, HOWEVER, WAS LEGALLY INSUFFICIENT (FOURTH DEPT).

The Fourth Department affirmed defendant’s kidnapping conviction but reversed the weapons-related counts because the evidence she constructively possessed a weapon found in the house was legally insufficient:

… [T]he evidence is legally sufficient to support [defendant’s] conviction of kidnapping in the second degree. Viewing the evidence in the light most favorable to the People … , we conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant had “a shared intent, or community of purpose’ with the principal[s]” … . Defendant was present in a house when the police raided it and rescued two victims who were being held captive there, and the identification of one of the victims was found in a backpack that defendant was wearing when the police entered the house. It could be readily inferred from the evidence that defendant was aware that the victims were being held there and that she intentionally aided the principals by providing them and the victims with food … . …

[The weapons-related] counts were based on her possession of a rifle that was found in the house after the police entered. To establish constructive possession of the weapon, the People had to establish that defendant “exercised dominion or control over [the weapon] by a sufficient level of control over the area in which [it was] found” … . Here, the evidence established that, prior to the arrival of the police, defendant was sitting in the living room of the house, the rifle was on a table in the living room, and one of the other perpetrators in the kidnapping put on a mask, grabbed the rifle, went to the room where the victims were being held, then came back to the living room and put the rifle back on the table. Contrary to the People’s contention, that evidence is insufficient to establish that defendant had constructive possession of the weapon. A defendant’s mere presence in the house where the weapon is found is insufficient to establish constructive possession … , and there was no evidence establishing that defendant exercised dominion or control over the weapon … . People v Rolldan, 2019 NY Slip Op 06913, Fourth Dept 9-27-19

 

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