You are here: / Evidence
, , ,

MOTION TO DISMISS THE NEGLIGENCE ACTION AGAINST DEFENDANT SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED, THE EVIDENCE SUBMITTED BY THE DEFENDANT DID NOT RULE OUT LIABILITY BASED UPON THE RELATIONSHIP BETWEEN THE DEFENDANT SECURITY COMPANY AND THE COMPANY PROVIDING SECURITY AT THE TIME OF THE ASSAULT (SECOND DEPT).

The Second Department determined defendant security company’s motion to dismiss the complaint should not have been granted in this third party assault case. The complaint alleged the security company’s negligence resulted in the murder of plaintiff’s decedent at an assisted living facility. The defendant alleged it did not provide security there at the time of the murder. However, the documentary evidence submitted by defendant did not rule out the possibility the defendant company could be liable based upon its relationship with the company which was providing security at the time of the murder:

Generally, “a corporation which acquires the assets of another is not liable for the torts of its predecessor”… . However, such liability may arise if the successor corporation expressly or impliedly assumed the predecessor’s tort liability, there was a consolidation or merger of seller and purchaser, the purchaser corporation was a mere continuation of the seller corporation, or the transaction was entered into fraudulently to escape such obligations… .

Moreover, “[w]here, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7) . . . the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it”… . ” Accordingly, consideration of such evidentiary materials will almost never warrant dismissal under CPLR 3211(a)(7) unless the materials establish conclusively that [the plaintiff] has no [claim or] cause of action'”… .

Contrary to the Supreme Court’s determination, the documentary and affidavit evidence submitted by USSA in support of its motion failed to conclusively establish that the plaintiff had no cause of action against it. More particularly, that evidence failed to demonstrate that the exceptions to the general rule of a successor corporation’s nonliability where there was a de facto merger between the purchaser and the seller, or where the purchaser is a mere continuation of the seller, do not apply to this case … . Shea v Salvation Army, 2019 NY Slip Op 01441, Second Dept 2-27-19

 

,

DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the permissive adverse inference jury instruction should have been given because of the loss or destruction of evidence requested by the defendant:

The defendant contends that the Supreme Court should have granted his request for a permissive adverse inference charge with respect to the People’s failure to turn over duly requested tape recordings and any other police records related to taped interactions between the undercover officer and a witness to the March 4, 1998, sale, who was also the defendant’s unindicted co-defendant. ” A permissive adverse inference instruction typically serves as either: (1) a penalty for the government’s violation of its statutory and constitutional duties or its destruction of material evidence; or (2) an explanation of logical inferences that may be drawn regarding the government’s motives for failing to present certain evidence at trial'” …

We agree with the defendant that the Supreme Court should have granted his request for a permissive adverse inference charge based upon the People’s loss or destruction of the material requested by the defendant … . “[A] permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State”… . Although the prosecutor stated that the missing tapes were unrelated to the sales at issue and were not recorded on the dates of the buys, he concededly never listened to them. Additionally, the officer who relayed the information that the tapes were not recorded on the dates of the buys to the prosecutor did not testify at trial. People v Torres, 2019 NY Slip Op 01434, Second Dept 2-27-19

 

,

TRIAL COURT FAILED TO INSTRUCT THE JURY THAT FINDING DEFENDANT NOT GUILTY OF THE TOP COUNT BASED ON THE JUSTIFICATION DEFENSE PRECLUDED CONSIDERATION OF THE LESSER COUNTS, NEW TRIAL REQUIRED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, noted that the trial court failed to instruct the jury that finding the defendant not guilty of the top count (attempted murder) based upon the justification defense would preclude consideration of the lesser counts. Defendant was acquitted of attempted murder but found guilty of assault first:

… [T]he Supreme Court’s jury charge in conjunction with the verdict sheet failed to adequately convey to the jury that if it found the defendant not guilty of attempted murder in the second degree based on justification, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the first degree and reckless endangerment in the first degree … . Thus, the court’s instructions, together with the verdict sheet, may have led the jurors to conclude that deliberation on each of the three counts required reconsideration of the justification defense, even if they had already acquitted the defendant of attempted murder in the second degree based on justification … . Since we cannot say with any certainty and there is no way of knowing whether the acquittal on attempted murder in the second degree was based on a finding of justification, a new trial is necessary… . In light of the defendant’s acquittal on the charge of attempted murder in the second degree, the highest offense for which the defendant may be retried is assault in the first degree … . People v Rosario, 2019 NY Slip Op 01432, Second Dept 2-27-19

 

,

DENIAL OF YOUTHFUL OFFENDER STATUS WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny defendant youthful offender status:

The evidence demonstrated that the defendant, who was only 18 years old when he participated in the subject robbery and had spent nearly two years in pretrial detention prior to pleading guilty to robbery in the first degree, played a relatively minor role in the robbery, which, although serious, was orchestrated by his considerably older brother, who was a repeat offender. The defendant suffers from developmental delays. While the defendant did participate in the robbery, it was the defendant’s brother, not the defendant, who wielded a gun and committed a sexual assault against one of the victims. Additional mitigating circumstances include the defendant’s lack of a prior juvenile record, criminal record, or violent history, and his cooperation with the authorities as part of the plea deal. Moreover, the defendant either had graduated from high school or was on the cusp of graduating from high school. Under all the circumstances, the interest of justice would be served by “relieving the defendant from the onus of a criminal record” … . People v Sheldon O., 2019 NY Slip Op 01430, Second Dept 2-27-19

 

,

PHOTOGRAPH OF DEFENDANT WITH A WEAPON PROPERLY ADMITTED DESPITE THE ABSENCE OF EVIDENCE THE DEPICTED WEAPON WAS USED IN THE CHARGED OFFENSE, JURY WAS PROPERLY INSTRUCTED ON ACCESSORIAL LIABILITY DESPITE THE ABSENCE OF AN ALLEGATION OF ACCESSORIAL LIABILITY IN THE INDICTMENT AND DESPITE THE PEOPLE’S THEORY THAT DEFENDANT WAS THE SHOOTER (FIRST DEPT).

The First Department determined a photograph depicting defendant with a weapon was properly admitted into evidence despite the absence of evidence that the weapon in the photograph was the weapon used in the offense. The trial court properly instructed the jury on accessorial liability despite the absence of an allegation of accessorial liability in the indictment and the People’s theory that defendant shot the victim:

The court providently exercised its discretion in admitting in evidence a photograph, taken less than two months before the shooting, showing a person, sufficiently established to be defendant, holding a revolver of the type used in the crime. This evidence was relevant to show that defendant had access to such a weapon, thus tending to establish his identity as the perpetrator, and there was no requirement of proof that the revolver in the photograph was the actual weapon used in the crime … . …

The court properly instructed the jury on accessorial liability, notwithstanding that no such language appeared in the indictment and the People’s main theory was that defendant personally shot the victim. There was no improper amendment of the indictment, because an indictment charging a defendant as a principal is “not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant’s basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice” … . A theory that defendant intentionally aided a particular other person, who did the actual shooting, was supported by defendant’s own testimony. Although defendant claimed he had not shared the gunman’s intent, such intent could be inferred from the totality of the evidence. We reject defendant’s claim of unfair surprise, particularly because the theory of accessorial liability arose from defendant’s own testimony … . People v Alexander, 2019 NY Slip Op 01341, First Dept 2-26-19

 

,

MONITORING AND RECORDING PHONE CALLS MADE BY PRETRIAL DETAINEES WHO ARE NOTIFIED THE CALLS ARE MONITORED AND RECORDED DOES NOT VIOLATE THE FOURTH AMENDMENT, THE RECORDINGS MAY BE SHARED WITH LAW ENFORCEMENT AND PROSECUTORS WITHOUT A WARRANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a two-judge dissent, determined recording phone conversation of pretrial detainees who are notified the calls are monitored and recorded does not violate the Fourth Amendment. Therefore such recordings can be shared with law enforcement and prosecutors:

… [W]here detainees are aware that their phone calls are being monitored and recorded, all reasonable expectation of privacy in the content of those phone calls is lost, “and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible” … . Moreover, the signs posted near the telephones used by the inmates state that calls are monitored in “accordance with DOC policy” which, according to the DOC Operations Order, provides that while recordings are confidential and not available to the public, the District Attorney’s Office may request a copy of an inmate’s recorded calls which will be provided upon approval by DOC … . …

We therefore reject defendant’s argument that he retained a reasonable expectation of privacy once the calls were lawfully intercepted by DOC and hold that there were no additional Fourth Amendment protections that would prevent DOC from releasing the recording to the District Attorney’s Office absent a warrant. People v Diaz, 2019 NY Slip Op 01260, CtApp 2-19-19

 

, ,

DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defense counsel’s placing in evidence a search warrant application which included prejudicial information about crimes involving the defendant amounted to ineffective assistance of counsel:

… [R]ather than a single error, we are confronted with a set of three closely-related errors at two stages of the trial: the failure to redact the irrelevant and prejudicial hearsay from the search warrant application before introducing it for the limited purpose of revealing [the applicant’s] errors; the failure to request a limiting instruction that would have advised the jury of that purpose; and the subsequent failure to object to the prosecutor’s repeated exhortations to the jury to rely on the application’s hearsay information as proof of defendant’s guilt. These errors, as well as the prejudicial testimony elicited from the detective, gain particular significance in the light of the close nature of the other evidence. The admissible proof that defendant constructively possessed the contraband and had the requisite intent to sell, although adequate to support the verdict, was not overwhelming. Further, the information in the application directly contradicted counsel’s theory of defense, which was that the girlfriend, and not defendant, possessed and sold the drugs found in the apartment. Thus, although counsel’s challenged conduct took place in the context of an otherwise effective performance, we find that the cumulative effect of his errors deprived defendant of a fair trial and requires reversal of the judgment … . People v Newman, 2019 NY Slip Op 01263, Third Dept 2-20-19

 

,

IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).

The Second Department determined the testimony of the People’s DNA expert violated defendant’s right to confrontation. The error was deemed harmless however:

… [T]he Supreme Court should not have admitted, over the defendant’s objection, the testimony of the People’s DNA expert, as such testimony violated the defendant’s right to confrontation… . In order to satisfy the Confrontation Clause where the People seek to introduce testimonial DNA evidence, “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify”… . Although the People’s expert testified that he conducted a “technical review” of the reports prepared by another criminalist whom he supervises, he did not establish that such review entailed using his own independent analysis on the raw data … .

Even so, the error in admitting the testimonial DNA evidence was harmless since the proof of the defendant’s guilt, without reference to the erroneously admitted DNA evidence, was overwhelming and there was no reasonable possibility that the Supreme Court would have acquitted the defendant had it not been for the error … . People v Dyson, 2019 NY Slip Op 01225, Second Dept 2-20-19

CRAWFORD, CROSS-EXAMINATION

 

,

POLICE OFFICER WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANTS AS THE PERSONS DEPICTED IN VIDEOTAPES (FIRST DEPT).

The First Department noted that a police officer was properly allowed to identify defendants as persons depicted in videotapes:

The circumstances … warranted testimony by the officer identifying defendants as persons depicted in videotapes … . Notwithstanding the fact that defendants had not changed their appearance subsequent to having been videotaped, the testimony was permissible, because “[the] testimony served to aid the jury in making an independent assessment regarding whether the [men] in the [were] indeed the defendant[s]'”… . Furthermore, the circumstances suggested that the jury would be less able than the officer to determine whether the defendants were seen in the videotapes, given the poor quality of the surveillance tapes, which showed groups of young men, mostly from a distance, thus rendering his testimony appropriate … . The trial court instructed the jurors that the officer’s testimony concerning the identities of those seen on video was his opinion and that the ultimate identification determination belonged exclusively to the jury. Furthermore, none of the officer’s testimony violated the hearsay rule or defendants’ right of confrontation. People v Pinkston, 2019 NY Slip Op 01171, First Dept 2-19-19

 

, , ,

FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department held the appeal in abeyance to allow a new suppression hearing. defense counsel. Defense counsel was acting in a limited advisory capacity when he was asked by the judge to conduct the suppression hearing. Defendant asked for an adjournment to allow counsel to review the voluminous discovery materials, but the request was denied. The Second Department held that the denial of the adjournment deprived defendant of his right to counsel:

“[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him [or her] upon a trial and ask questions” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ . . . basic principles of criminal law and procedure” … .

Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials … . People v Costan, 2019 NY Slip Op 01089, Second Dept 2-13-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy