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ALTHOUGH THE OPERATION OF THE KNIFE WAS DEMONSTRATED AT TRIAL, THERE WAS NO RECORD EVIDENCE THAT THE KNIFE POSSESSED BY DEFENDANT WAS A GRAVITY KNIFE, RELATED CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (SECOND DEPT).

The Second Department, under a weight of the evidence analysis, determined that the proof did not support the jury’s finding that the weapon possessed by defendant was a gravity knife:

Penal Law § 265.00(5) defines a “[g]ravity knife” as a “knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” “[A] gravity knife, as so defined, requires that the blade lock in place automatically upon its release and without further action by the user” … . …

Although an officer demonstrated the operation of the knife at trial, the record contains “no contemporaneous description of what the jury saw” during that demonstration … . Further, there is no other evidence in the record that established whether or how the blade locked. In short, the People failed to create a record proving that the knife satisfied the statutory definition of a gravity knife  … . Thus, the weight of the evidence before us does not support a finding that the defendant’s knife was, in fact, a gravity knife … . People v Sauri, 2019 NY Slip Op 02359, Second Deplt 3-27-19

 

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AMENDMENT OF THE INDICTMENT ON THE EVE OF TRIAL CHANGED THE THEORY OF PROSECUTION FROM ACTUAL POSSESSION OF A WEAPON TO CONSTRUCTIVE POSSESSION OF A WEAPON, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined that the People should not have been allowed to amend the indictment on the eve of trial. The indictment charged defendant with possession of a weapon when he visited his girlfriend on October 20. The People sought to amend the indictment to allege possession of a weapon on October 22, when the weapon was found pursuant to a search of defendant’s residence:

By seeking, on the eve of trial, to amend the indictment to include the days following the purported incident with the former girlfriend, the People changed the theory of their case from the defendant’s actual possession of a weapon, as witnessed and attested to by the former girlfriend, to constructive possession, meaning his exercise of dominion or control over an area of the defendant’s residence where a loaded weapon was found … . Defense counsel, in opposing the amendment, asserted that he had relied upon the indictment and the VDF [voluntary disclosure form] prepared by the District Attorney’s Office, giving the date of the offense as October 20, 2015, in preparing for the case, including defense counsel’s efforts to prove, through time cards and testimony, that it was impossible for the defendant to have been at his former girlfriend’s apartment at the time of the incident on October 20, 2015. As such, defense counsel presented evidence that the defense had been substantially undermined by the amendment of the indictment and that, effectively, he was forced to forgo an alibi-type defense … . People v McLean, 2019 NY Slip Op 02356, Second Dept 3-27-19

 

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PLAINTIFF’S PROOF OF STANDING IN THIS FORECLOSURE ACTION WAS NOT IN ADMISSIBLE FORM, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence that the plaintiff had standing in this foreclosure action did not meet the requirements of the business records exception to the hearsay rule and plaintiff’s summary judgment motion should not have been granted:

In support of its motion, the plaintiff relied on the affidavit of Gabriel De Souza, a contract management coordinator for Ocwen Loan Servicing, LLC (hereinafter Ocwen), which serviced the subject mortgage for the plaintiff. De Souza indicated that his knowledge of this case was based on his “review of the business records,” and asserted that the plaintiff was “in possession of the Note at the time of commencement of this action.” He did not indicate that the business records of the plaintiff had been incorporated into Ocwen’s business records. Moreover, the plaintiff failed to demonstrate the admissibility of the assertions made by De Souza or the records relied upon by him under the business records exception to the hearsay rule (see CPLR 4518[a] … ). Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, it failed to establish its prima facie entitlement to judgment as a matter of law … . Deutsche Bank Natl. Trust Co. v Lee, 2019 NY Slip Op 02313, Second Dept 3-27-19

 

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LAY WITNESSES PROPERLY ALLOWED TO IDENTIFY THE PERSON DEPICTED IN A VIDEO AS THE DEFENDANT (FIRST DEPT).

The First Department determined two lay witnesses were properly allowed to give their opinion that the person depicted in a video was the defendant:

The court providently exercised its discretion in permitting two witnesses to give lay opinion testimony that defendant was the person depicted in photos from surveillance videotapes from areas in and around the building where the robbery occurred and at the shelter where defendant resided both several months prior to the robbery and at the time of the robbery. This testimony “served to aid the jury in making an independent assessment regarding whether the man in the [videos] was indeed the defendant” … , because there was “some basis for concluding that the witness[es] [were] more likely to correctly identify the defendant from the [videos] than [was] the jury” … .

The People established that defendant’s appearance had changed since the crime in several significant respects. Furthermore, the witnesses, who were sufficiently familiar with defendant, were able to recognize defendant’s mannerisms and peculiar way of walking. In addition, the record establishes the poor quality of the photographic evidence. People v Rivera, 2019 NY Slip Op 02262 [170 AD3d 566], First Dept 3-26-19

 

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SHOWUP IDENTIFICATION TESTIMONY SUPPRESSED, CONVICTIONS REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions, determined that the showup indentification testimony should have been suppressed. The showup took place 90 minutes after the occurrence of the crime, in a hospital parking lot, where defendant was handcuffed and flanked by officers. The victim had already identified the defendant in a hospital-room showup procedure:

We conclude that, “[g]iven the identification made by the victim” during the first showup, the noncomplainant witness’s identification conducted far from the scene of the crime “is not rendered tolerable in the interest of prompt identification” … . The identification was also unjustified insofar as the noncomplainant witness was not present at the hospital as a victim … . The People have proffered no reason that a lineup identification procedure would have been unduly burdensome under the circumstances … . Absent any exigency or spatial proximity to the crime scene, and given that the showup occurred “approximately 90 minutes after the occurrence of the crime, while defendant was handcuffed and” flanked by police, we conclude that, under the totality of the circumstances, the second “showup identification procedure was infirm” … . …

Inasmuch as the witness who identified defendant in the second showup procedure did not testify at the Wade hearing, “the People did not establish that [he] had an independent basis for [his] in-court identification of defendant” … , and “there is no evidence upon which this Court can base such a determination” … . We therefore conclude that defendant is entitled to a new Wade hearing on that issue … . People v Knox, 2019 NY Slip Op 02230, Fourth Dept 3-22-19

 

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POLICE ENTERED HOME ILLEGALLY AND OBTAINED CONSENT TO SEARCH BY MISLEADING THE OCCUPANT, MOTION TO SUPPRESS PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department, affirming Supreme Court’s suppression of a weapon found in a home, determined the police illegally entered the home and gained consent to search by misleading the woman in the home:

Asked by defense counsel why he entered the home, the officer testified, “An individual who’s known to carry guns entered that house running into that house actually, coming out acting nervous, there’s a baby crying in the house, who is taking care of the baby?” …

… [T]he People correctly concede that the officer entered the home illegally. An illegal entry by the police requires the suppression of the fruits of an ensuing search notwithstanding a voluntary consent, unless the consent attenuates the taint of the illegal entry … . In determining whether the illegal entry is so attenuated, a court is required to consider a variety of factors, including: (1) the temporal proximity of the consent to the illegal entry; (2) whether there were intervening circumstances; (3) whether the purpose underlying the illegal entry was to obtain the consent or the fruits of the search; (4) whether the consent was volunteered or requested; (5) whether the person who gave consent was aware that he or she could refuse consent; and, most importantly, (6) the purpose and flagrancy of the misconduct … .

… The purpose of the illegal entry was to recover a gun that the officer presumed was hidden inside. Any consent obtained thereafter was not volunteered. It was requested, and the woman was not advised that she could refuse consent. … Most importantly, the officer engaged in flagrant misconduct. Without having witnessed any illegality, the officer entered a private residence without permission, after midnight, while a woman in that residence was trying to feed her newborn child, and coerced her into consenting to a search of her home. People v Sweat, 2019 NY Slip Op 02240, Fourth Dept 3-22-19

 

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THE PEOPLE DID NOT PRESENT EXTRINSIC EVIDENCE AT THE DARDEN HEARING THAT THE INFORMANT EXISTED, THEREFORE THE SUPPRESSION MOTION WAS GRANTED AND THE INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department determined the evidence submitted by the People at the Darden hearing did not establish the existence of an informant with extrinsic evidence. Therefore the motion to suppress was granted and the indictment dismissed. The People presented only a death certificate purporting to demonstrate the informant was dead. No extrinsic evidence of the existence of the informant was presented:

The People must produce a confidential informant for an ex parte hearing upon defendant’s request where, as here, they rely on the statements of the confidential informant to establish probable cause (… People v Darden, 34 NY2d 177, 181 [1974] … ). …

There are, however, exceptions to the requirement that the People produce a confidential informant for a Darden hearing. If the People succeed in making a threshold showing that the informant “is unavailable and cannot be produced through the exercise of due diligence” … , they are permitted instead to establish the existence of the informant by extrinsic evidence … .

Even assuming, arguendo, that the People succeeded here in making such a threshold showing, we conclude that they nevertheless failed to establish the existence of the informant by extrinsic evidence … . The evidence establishes only that a deposition was executed in the name of the alleged confidential informant, that the police obtained a search warrant using the deposition, and that a death certificate was later issued for a person having the same name as the confidential informant. There is no evidence that the alleged informant actually made the statements attributed to her … . The People could have met their burden by offering the testimony of a police witness, which is evidence that is explicitly contemplated in Darden. Yet, they did not. Without it, there is nothing to refute the possibility that the police fabricated the statements in the informant’s purported deposition in order to conceal the fact that information critical to the probable cause inquiry was instead obtained through illegal police action. People v Givans, 2019 NY Slip Op 02220, Fourth Dept 3-22-19

 

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IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:

CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the rules of evidence, may be used . . . by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not admissible under CPLR 3117 (a) (3) … . …

Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s 2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s deposition testimony should have been admitted into evidence at this trial. Although a live witness may be impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier actions and selectively playing those portions they believed supported their respective contentions. The jury was essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19

 

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DEFENDANT SHOULD NOT HAVE BEEN ASSESSED 20 POINTS FOR A CONTINUING COURSE OF SEXUAL MISCONDUCT, PROOF OF A SECOND INSTANCE OF SEXUAL MISCONDUCT WAS INSUFFICIENT, AN ALLEGATION IN AN INDICTMENT IS NOT, BY ITSELF, EVIDENCE THE INCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant should not have been assessed 20 points for a continuing course of sexual misconduct, noting that a reference in an indictment is not sufficient proof:

Defendant pleaded guilty to one count of having sexual intercourse with the victim and claimed that he only had sex with the victim once. The People presented a sworn statement given to the police by the victim’s mother in which she recounts that, when she confronted the victim concerning her relationship with defendant, the victim told her that they “had sex two times.” Even assuming that this statement constitutes reliable hearsay … there is no indication by the victim as to when the acts of sexual contact occurred. Although the case summary states that the presentence investigation report reflects that acts of sexual contact occurred in May 2013 and September 2013, the only reference to a September 2013 act in that report is when it lists the charges contained in the indictment. Notably, “the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Inasmuch as there is no evidence in the record regarding when the second act of sexual contact occurred, we cannot say that there is clear and convincing evidence that two sexual acts occurred that were separated by at least 24 hours … . People v Hinson, 2019 NY Slip Op 02184, Third Dept 3-21-18

 

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DAMAGES AWARDED 69-YEAR-OLD PLAINTIFF FOR PAST AND FUTURE PAIN AND SUFFERING DEEMED EXCESSIVE (FIRST DEPT).

The First Department determined the damages awarded the 69-year-old plaintiff for past and future pain and suffering were too high:

Judgment … upon a jury verdict, which … awarded plaintiff $1.2 million for past pain and suffering, $1 million for future pain and suffering over 10 years, $255,582 for future medical expenses, and $250,000 for future loss of earnings … unanimously modified … to remand the matter for a new trial on damages for past pain and suffering and future pain and suffering, unless plaintiff stipulates … to reduce the awards for past pain and suffering to $1,000,000 and for future pain and suffering to $675,000 … . Dacaj v New York City Tr. Auth., 2019 NY Slip Op 02171, First Dept 3-21-19

 

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