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THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the jury should have been instructed to stop deliberating on other counts if they found the justification defense to have been proven. The Second Department further determined that the facts justified a jury instruction on the temporary and innocent possession of a weapon:

Here, we agree with the defendant that the Supreme Court’s jury charge in conjunction with the verdict sheet failed to convey to the jury that if it found the defendant not guilty based on justification as to assault in the first degree, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree … . Thus, the court’s instructions, together with the verdict sheet, may have led the jurors to conclude that deliberation on each assault count … required reconsideration of the justification defense, even if they had already acquitted the defendant of assault in the first degree based on justification… . Since we cannot say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification, a new trial is necessary … . In light of the defendant’s acquittal on the charge of assault in the first degree, the highest offense for which the defendant may be retried is assault in the second degree … . …

Here, viewing the evidence in the light most favorable to the defendant, the evidence sufficiently supported the defense of temporary and lawful possession of a weapon … . The defendant testified that he picked up a kitchen knife from the floor only after Grandu jumped on his back, at which point Herron was hitting the defendant in the head with her hands and with a pan while Grandu restrained the defendant. Although the defendant then stabbed Grandu with the knife, “should a jury believe that the defendant’s use of the knife was justified, such use would have been lawful, and not utterly at odds with [the defendant’s] claim of” temporary and innocent possession … . People v Fletcher, 2018 NY Slip Op 07747, Second Dept 11-14-18

CRIMINAL LAW (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/JUSTIFICATION (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/TEMPORARY INNOCENT POSSESSION OF A WEAPON (CRIMINAL LAW, THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))/WEAPON, POSSESSION OF (THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT))

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DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT).

The Second Department determined defendant’s motion to vacate her conviction on ineffective assistance grounds was properly denied. The prosecution presented 13 medical professional in support of its shaken baby case, but defense counsel did not present a medical expert:

Instead, trial counsel obtained the written report of a medical expert before the trial and retained a pediatric neurologist as a consulting expert, whom he consulted as issues arose during trial. During cross-examination of the People’s witnesses, trial counsel elicited testimony that supported the defendant’s theory of the case that the infant sustained injuries prior to being left at the defendant’s home.  * * *

Generally, whether to call an expert is a tactical decision … . In many instances, cross-examination of the People’s expert will be sufficient to expose defects in an expert’s presentation … . “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” … . …

The record shows that trial counsel made efforts to investigate the medical issues in this case. He effectively cross-examined the People’s witnesses, including the experts, and elicited testimony that was damaging to the People’s case. The fact that the defense did not call its own expert witnesses was the result of trial counsel’s legal strategy that the best way to defend this case was through impeachment of the People’s witnesses. Under the particular circumstances of this case, trial counsel provided effective representation … . People v Caldavado, 2018 NY Slip Op 07743, Second Dept 11-14-18

CRIMINAL LAW (ATTORNEYS, EVIDENCE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EVIDENCE (EXPERT MEDICAL OPINION, SHAKEN BABY CASE, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, SHAKEN BABY, DESPITE THE PROSECUTION’S CALLING OF 13 MEDICAL PROFESSIONALS IN THIS SHAKEN BABY CASE, DEFENSE COUNSEL’S FAILURE TO PRESENT EXPERT MEDICAL OPINION EVIDENCE DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT))

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EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT).

The Second Department determined the evidence did not support the finding that mother neglected the child by failing to provide adequate shelter:

We agree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother failed to provide the child with proper supervision and guardianship. The evidence demonstrated that she placed the child in near proximity to narcotics and to the very dangerous activity of narcotics trafficking, which posed an imminent danger to the child’s physical, mental, and emotional well-being… .

However, we disagree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother neglected the child by failing to supply the child with adequate shelter based on the unsanitary conditions of the home. While the evidence adduced at the fact-finding hearing demonstrated that the home was in a general state of disarray, it did not establish unsanitary or unsafe conditions such that the child’s physical, mental, or emotional condition was impaired or in imminent danger of impairment … . Matter of Majesty M. (Brandy P.), 2018 NY Slip Op 07726, Second Dept 11-14-18

FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))

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PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined the plaintiff’s verdict in this subway slip and fall case should be set aside as against the weight of the evidence. The trial evidence indicated comparative fault on the part of the plaintiff. Plaintiff stepped into a gap between the train and the platform, just after she had stepped over it. In addition, plaintiff had used that same train for a year:

The jury found that the NYCTA [New York City Transit Authority] was negligent, that its negligence was a substantial factor in causing the accident, and that the injured plaintiff was not negligent. The NYCTA moved, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion. Insofar as relevant on this appeal, a judgment was subsequently entered in favor of the injured plaintiff and against the NYCTA.

“A jury verdict is contrary to the weight of the evidence when the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence” … . “Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors”… .

The jury’s finding that the NYCTA was solely at fault for the accident was contrary to the weight of the evidence. The evidence at trial demonstrated that, just prior to the accident, the injured plaintiff had exited the B train and stepped over the subject gap, without incident, onto the platform of the Prospect Park station. She then stepped into that same gap while attempting to reenter the train moments later. Additionally, the injured plaintiff had used the Prospect Park station on previous occasions. She testified that, for approximately one year, she had been taking the B train to the Prospect Park station where she would transfer to the shuttle train if it was at the station when she arrived. Under the circumstances, the jury’s verdict on the issue of liability completely absolving the injured plaintiff of comparative fault was not supported by a fair interpretation of the evidence … . Stallings-Wiggins v New York City Tr. Auth., 2018 NY Slip Op 07774, Second Dept 11-14-18

NEGLIGENCE (PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, NEGLIGENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/EVIDENCE (SET ASIDE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/APPEALS (NEGLIGENCE, WEIGHT OF THE EVIDENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/WEIGHT OF THE EVIDENCE (NEGLIGENCE, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/SLIP AND FALL (PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))/COMPARATIVE NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S VERDICT SET ASIDE IN THIS SUBWAY SLIP AND FALL CASE AS AGAINST THE WEIGHT OF THE EVIDENCE, TRIAL EVIDENCE INDICATED COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART (SECOND DEPT))

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WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s motion for leave to file a late notice of claim was properly granted. Apparently plaintiff had fallen. The ambulance call report, prepared by defendants, indicated that plaintiff had limited response in her lower body. Plaintiff was rendered a partial quadriplegic. Expert opinions submitted in support of the motion were based upon a review of the ambulance report and concluded that plaintiff should have been immobilized and her injuries would not have been so severe if she had been immobilized. The Second Department explained that where malpractice is apparent from and independent review of the records, the records constitute timely actual knowledge of the essential facts constituting the claim:

While the ambulance call report, without more, does not establish actual knowledge of a potential injury where the record does not evince that the medical staff, by its acts or omissions, inflicted any injury … , where malpractice is apparent from an independent review of the medical records, those records constitute “actual notice of the pertinent facts” … . Here, the plaintiff submitted the expert opinions of Paul Werfel and Robert E. Todd. Werfel, a certified paramedic and professor of clinical emergency medicine at Stony Brook University, reviewed the medical records, including the appellants’ ambulance report. In his affidavit, Werfel stated that, in his “opinion to a reasonable degree of EMT standards,” Rescue Squad “failed to use spinal precautions and/or follow required EMT protocols as it relates to mobilizing and placing a patient on a stretcher who has a high index of having sustained a spinal cord injury.” Werfel further averred that Rescue Squad and NDP failed to comply with required protocols when transferring the plaintiff to the hospital. … Inasmuch as the ambulance report, upon independent review, suggested injury attributable to malpractice, it provided the appellants with actual knowledge of the essential facts constituting the claim … .

Furthermore, the plaintiff made an initial showing that the appellants were not prejudiced by the delay in serving a notice of claim inasmuch as the appellants acquired actual knowledge of the essential facts of the claim via their own ambulance report … . Ballantine v Pine Plains Hose Co., Inc., 2018 NY Slip Op 07697, Second Dept 11-14-18

NEGLIGENCE (MEDICAL MALPRACTICE, MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, NEGLIGENCE, MEDICAL MALPRACTICE, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (LATE NOTICE OF CLAIM, MUNICIPAL LAW, NEGLIGENCE, MEDICAL MALPRACTICE,  WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))/NOTICE OF CLAIM  (MUNICIPAL LAW, WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT))

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EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conspiracy conviction, determined the evidence of defendant’s participation was legally insufficient:

… [T]he People in this case were required, inter alia, to establish that the defendant entered into an agreement that was specifically intended to result in the death of Friday (count one) and Morris (count two) … . While the record evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members for the recent shooting death of a member of the S.N.O.W. Gang, there was no direct or circumstantial evidence tying this defendant to any plan specifically intended to kill either Friday or Morris. Among other things, the defendant was not present at an alleged planning meeting in a park, at which many of the coconspirators were arrested. Moreover, the defendant is not listed as a participant in any social media discussions in which other S.N.O.W. Gang members named Friday and Morris as possible targets for retaliatory action. For this reason, the defendant’s timely motion for a trial order of dismissal should have been granted, and the indictment dismissed insofar as asserted against him … . People v Lucas, 2018 NY Slip Op 07755, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONSPIRACY, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSPIRACY (EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LEGALLY INSUFFICIENT EVIDENCE (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, EVIDENCE THAT DEFENDANT JOINED A CONSPIRACY TO MURDER WAS LEGALLY INSUFFICIENT, MOTION FOR A TRIAL ORDER OF DISMISSAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s gang-related convictions, determined that the two police officers (Georg and Bracero) certified as experts in gang culture served as conduits for inadmissible testimonial hearsay and acted as summation witnesses usurping the jury’s role of interpreting the evidence:

As a threshold matter, we note that Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted (see Crawford v Washington, 541 US at 60 n 9…). Thus, “it is permissible for an expert witness to form an opinion by applying [his or] her expertise to otherwise inadmissible evidence because, in that limited instance, the evidence is not being presented for the truth of the matter asserted” … .

Here … information derived from the debriefing of arrested S.N.O.W. Gang members constitutes testimonial statements within the meaning of Crawford … . The more difficult question presented is whether the substance of such statements was impermissibly conveyed to the jury by Georg and/or Bracero in the guise of expert testimony … . We find that it was. …

Separate and apart from the Crawford errors, Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, straying from their proper function of aiding the jury in its factinding, and instead ” instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense'” (People v Inoa, 25 NY3d 466, 475, quoting United States v Mejia, 545 F3d at 191). During the trial, Georg read Facebook posts verbatim to the jury, offered commentary about the time of each post in relation to key events in the case, and connected evidence of the parties exchanging their phone numbers with records confirming that a call was subsequently placed. The defendant’s counsel correctly objected to such testimony, citing Mejia and Inoa, on the ground that Georg was no longer acting as an expert witness but was usurping the jury’s function by interpreting, summarizing, and marshaling the evidence. Unlike the Crawford violation, this type of error is nonconstitutional in nature … . People v Jones, 2018 NY Slip Op 07752, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/HEARSAY (CRIMINAL LAW, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/TESTIMONIAL HEARSAY ( POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/CRAWFORD EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, GANGS, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/GANGS  (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/SUMMATION WITNESS (CRIMINAL LAW, EVIDENCE, TESTIMONIAL HEARSAY, EXPERT OPINION, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))

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QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff-decedent’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted. Decedent’s statement to his wife in the emergency room, to the effect he should not have used the ladder as he did, was admissible as a declaration against interest. There was evidence from a co-worker that the ladder may not have been the cause of decedent’s injuries, i.e., there was evidence decedent was suffering chest pains 10 feet away from the ladder, which was upright. The court noted that factual assertions included in a memorandum of law in opposition to plaintiff-decedent’s motion were properly considered and preserved issues for appeal:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting decedent’s statement that he was working on a ladder when it started to move, and when he tried to stabilize the ladder, it tipped and struck him in the chest … . Plaintiff was not “required to present further evidence that the ladder was defective” … .

However, defendants raised triable issues of fact as to whether decedent’s injuries were caused by an accident involving a ladder. Two accident reports set forth his alleged statement that he was working on the ladder when he started feeling chest pains and his legs became “unsteady” or “wobbly.” Moreover, decedent’s coworker, who was working in the same apartment unit separated from decedent by a concrete wall but went over to decedent’s area, not in response to any commotion but for routine purposes, saw that the ladder was in the upright position about 10 feet away from decedent when he expressed that he was suffering from chest pains … . Although decedent was disoriented and unable to answer basic questions at some points, he eventually became alert while in the hospital, yet his medical records do not refer to any ladder accident.

Contrary to plaintiff’s assertion, defendants preserved their arguments about triable issues of fact by asserting them in their memorandum of law in opposition to plaintiff’s partial summary judgment motion. Caminiti v Extell W. 57th St. LLC, 2018 NY Slip Op 07667, First Dept 11-13-18

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/EVIDENCE (DECLARATION AGAINST INTEREST, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/DECLARATION AGAINST INTEREST  (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/SUMMARY JUDGMENT (EVIDENCE, QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))/APPEALS (PRESERVATION, (QUESTION OF FACT WHETHER PLAINTIFF-DECEDENT’S INJURY WAS CAUSED BY A TIPPING LADDER, FACTUAL ASSERTIONS IN A MEMO OF LAW OPPOSING PLAINTIFF-DECEDENT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION PRESERVED ISSUES FOR APPEAL, PLAINTIFF-DECEDENT’S STATEMENT TO HIS WIFE IN THE EMERGENCY ROOM PROPERLY CONSIDERED AS A DECLARATION AGAINST INTEREST (FIRST DEPT))

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POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant’s second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant’s phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

The Riley Court determined that “officers must generally secure a warrant before conducting [a search of data stored in a cell phone]” … . Here, the search warrant application for defendant’s phone indicates, among other things, that, after defendant’s arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant’s contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant’s arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant’s cell phone, or even manipulating the phone to some extent upon a defendant’s arrest …  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to “examine the physical aspects of the phone” after it has been seized … . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court’s decision in Riley did not provide good cause for defendant’s untimely second suppression motion. Thus, the motion was properly denied … .

Moreover, even if the officer’s actions in sending a confirmatory text message to defendant’s phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant’s phone was not vitiated. The police did not use the alleged illegal search ” to assure themselves that there [was] cause to obtain a warrant’ in the first instance” … , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

CRIMINAL LAW (POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

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EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined evidence of routine maintenance of the parking lot, essentially evidence habit, was properly admitted in this slip and fall case which resulted in a defense verdict:

… [P]laintiff appeals from an order that, inter alia, denied that part of his pretrial motion seeking to preclude habit evidence. …

” Proof of a deliberate repetitive practice by one in complete control of the circumstances’ is admissible provided that the party presenting such proof demonstrates a sufficient number of instances of the conduct in question’ ” … . Here, the testimony of the maintenance staff concerning their daily routine in maintaining the subject parking lot was properly admitted as evidence of their conduct prior to the incident at issue. Rozier v BTNH, Inc., 2018 NY Slip Op 07575, Fourth Dept 11-9-18

NEGLIGENCE (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))/HABIT (SLIP AND FALL, EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH DEPT))

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