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DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department determined defense counsel was ineffective in failing to request a Frye hearing concerning a computer program, the TrueAllele Caaswork system, used to interpret mixed DNA samples. The appeal was held in abeyance and the matter remitted for the hearing:

​Defendant asserts that his trial counsel should have challenged, by way of a Frye hearing, the reliability of the TrueAllele Casework system, the proprietary “computer program that use[d] mathematics and statistics to interpret” the electronic data generated from the DNA mixtures taken from the lavender gloves and determine the statistical probability of a match between defendant’s DNA and that found on the inside of the gloves. A Frye hearing ascertains the reliability of “novel scientific evidence” by determining “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally”… . At the time of defendant’s pretrial proceedings in 2014, there were no reported trial court or appellate court decisions in this state establishing that the reliability of the TrueAllele Casework system had been assessed through a Frye hearing or that any court in the state had otherwise accepted expert testimony regarding that proprietary computer program… . Given these circumstances, we do not find that it would have been futile for defense counsel to have requested a Frye hearing to challenge the reliability of the TrueAllele Casework system or that such an application would have had little or no likelihood of success … . People v Wilson, 2018 NY Slip Op 05715, Third Dept 8-9-18

CRIMINAL LAW (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/DNA (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/FRYE HEARING (CRIMINAL LAW, DNA, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/TRUEALLELE CASEWORK SYSTEM (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/INEFFECTIVE ASSISTANCE (DNA, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))/APPEALS (CRIMINAL LAW, FRYE HEARING, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A FRYE HEARING CONCERNING A COMPUTER PROGRAM USED TO INTERPRET MIXED DNA SAMPLES, APPEAL HELD IN ABEYANCE AND MATTER REMITTED FOR A HEARING (THIRD DEPT))

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NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT ABOUT NEGLIGENCE (SECOND DEPT).

The Second Department determined the negligent training a supervision cause of action against the school district was properly dismissed and the negligent maintenance of the premises cause of action should have been dismissed. Infant plaintiff fell from an apparatus on the school playground during recess:

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition … . In opposition, the plaintiff’s expert opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission. These standards, however, are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance … . Boland v North Bellmore Union Free Sch. Dist., 2018 NY Slip Op 05663, Second Dept 8-8-18

NEGLIGENCE (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/EVIDENCE (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/AMERICAN SOCIETY OF TESTING MATERIAL STANDARDS (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/CONSUMER PRODUCT SAFETY COMMISSION STANDARDS (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))

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CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s conviction of endangering the welfare of a child should not have been set aside based upon his acquittal on all 27 counts of criminal sexual act involving a 10-year-old child. Because the appeal was brought by the People, the court was statutorily prohibited from considering defendant’s argument that the indictment was jurisdictionally defective:

The Court of Appeals has held that a factual inconsistency in the verdict does not render “the record evidence legally insufficient to support the conviction” … . “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency” … . Thus, in this case, the acquittals of the criminal sexual act and sexual abuse counts did not render the evidence legally insufficient to support the conviction of endangering the welfare of a child … .

Although the Court of Appeals has noted that reviewing courts may consider jury acquittals “in some instances on legal issues such as the sufficiency of the evidence or errors in the admissibility of evidence” … , such consideration is appropriate to the extent that the acquittal provides information about the basis of, or the theory underlying, the jury’s finding of guilt on another count … . With this understanding of the basis or theory of the conviction on that other count, the court may then determine whether there was legally sufficient evidence to support that conviction … . That determination is based on an independent review of the evidence presented at trial, and is not controlled by the jury’s acquittal on the other charge … . People v Sturges, 2018 NY Slip Op 05703, Second Dept 8-8-18

CRIMINAL LAW (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/ENDANGERING THE WELFARE OF A CHILD (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/APPEALS (CRIMINAL LAW, PEOPLE’S APPEAL, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT)

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EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department noted that evidence of a prior conviction of criminal possession of stolen property (a car) should not have been admitted as Molineux evidence to show knowledge and intent in this prosecution for the same genre of offense. Knowledge and intent can be inferred from possession of the car, which was taken by force. There error was deemed harmless however:

The Supreme Court should not have admitted, over objection, evidence of the defendant’s 2009 conviction for criminal possession of stolen property, including the underlying fact that the stolen property was a motor vehicle, to demonstrate knowledge and intent to steal the vehicle … . Here, the defendant’s knowledge and intent could easily be inferred from his possession of the subject vehicle, which was procured by force. “Generally, [e]vidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself'” … . However, as there was overwhelming evidence of the defendant’s guilt, which included his statements to law enforcement authorities and the fact that he and his companion assumed possession of the vehicle, and no significant probability that the error contributed to the defendant’s conviction, the error was harmless … . People v Sands, 2018 NY Slip Op 05701, Second Dept 8-8-18

CRIMINAL LAW (EVIDENCE, MOLINEUX, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOLINEUX,  EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))

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(HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT).

The Second Department determined it was (harmless) error to allow a detective to identify the person depicted in a video as the defendant:

Generally, “lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts,” as it is the jury’s province “to draw the appropriate inferences arising from the facts” … . While, under the proper circumstances, the court has the discretion to allow a lay witness to express his or her opinion that an individual depicted in a surveillance video is the defendant … , here, there was no basis for concluding that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the video …. The detective had arrested the defendant more than two weeks after the crime, and, at that time, briefly interviewed the defendant. “There was no evidence that [the] defendant had changed his appearance prior to trial, and the record is devoid of any other circumstances suggesting that the jury—which had ample opportunity to view [the] defendant—would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Reddick, 2018 NY Slip Op 05608, Second Dept 8-1-18

CRIMINAL LAW (IDENTIFICATION, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/VIDEO (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))/IDENTIFICATION (CRIMINAL LAW, (HARMLESS) ERROR TO ALLOW DETECTIVE TO TESTIFY THE PERSON DEPICTED IN A VIDEO WAS THE DEFENDANT (SECOND DEPT))

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AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the affidavit submitted in support of a warrant application for a DNA swab was insufficient and the motion to suppress should have been granted:

To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place'”… . Here, as the People correctly concede, the affidavit of the detective submitted in support of the search warrant application was conclusory and insufficient to establish probable cause to issue the warrant … . The detective stated that he believed evidence related to the victim’s murder may be found in the defendant’s saliva based on his interview of witnesses, information supplied to him by fellow police officers, and his review of police department records. However, the detective did not identify the witnesses or indicate what information he obtained from them, and did not specify what police department records he reviewed, or what information was contained in the records. People v Augustus, 2018 NY Slip Op 05480, Second Dept 7-25-18

CRIMINAL LAW (EVIDENCE, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DNA (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH AND SEIZURE (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SEARCH WARRANT (DNA, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, AFFIDAVIT IN SUPPORT OF WARRANT FOR A DNA SWAB INSUFFICIENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendants’ motion in limine to strike plaintiff’s expert witness disclosure and preclude the expert from testifying should not have been granted. The court noted that the evidentiary motion was appealable because it involved the merits of this swimming pool injury case and affected a substantial right. The disclosure indicated the expert would testify about New York State code provisions and ANSI/INSPI-4 standards for slides used in swimming pools. Plaintiff alleged she was injured when her head struck the bottom of the pool after sliding into the water head first:

… [T]he court erred in granting that part of the motion to strike the expert witness disclosure and to preclude the expert from testifying with respect to the 2010 Residential Code of New York State (Residential Code) and the ANSI/NSPI-4 standard for aboveground residential swimming pools, and we therefore modify the order accordingly. Section 1.2 of that standard provides that “[a]boveground/onground residential swimming pools are for swimming and wading only. No . . . slides or other equipment are to be added to an aboveground/onground pool that in any way indicates that an aboveground/onground pool may be used or intended for . . . sliding purposes,” and the ANSI/NSPI-4 standard is incorporated in the Residential Code that was in effect at the time of plaintiff’s accident (see 2010 Residential Code of New York State §§ R102.6, G109.1). Inasmuch as the ANSI/NSPI-4 standard applies only to residential pools, and the Residential Code applies to family dwellings (see Residential Code § R101.2), we conclude that the Residential Code section adopting the ANSI/NSPI-4 standard applies to private homeowners. Thus, we further conclude that plaintiff’s expert may properly rely on any violation of the ANSI/NSPI-4 standard as “some evidence” of defendants’ negligence … . Redmond v Redmond, 2018 NY Slip Op 05417, Fourth Dept 7-25-18

NEGLIGENCE (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/EVIDENCE  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/EXPERT OPINION  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/APPEALS  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))/CIVIL PROCEDURE  (PLAINTIFF’S EXPERT WITNESS DISCLOSURE SHOULD NOT HAVE BEEN STRUCK AND THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING ABOUT THE RELEVANT STANDARDS FOR USE OF SLIDES IN SWIMMING POOLS, PLAINTIFF ALLEGEDLY STRUCK HER HEAD ON THE BOTTOM OF THE POOL AFTER SLIDING HEAD FIRST, THE RULING ON THE MOTION IS APPEALABLE BECAUSE IT DEALS WITH THE MERITS AND AFFECTS A SUBSTANTIAL RIGHT (FOURTH DEPT))

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT).

The Fourth Department determined the defendant was not deprived of effective assistance of counsel by (1) the failure to move to suppress evidence found in a garbage bag outside defendant’s grandmother’s house, (2) the failure to move to suppress cell site location information (CSLI), and (3) the failure to object to the prosecutor’s mischaracterization of the the DNA evidence as a match.  Exigent circumstances justified the search of the garbage bag and the warrantless search of the cell-site records, and the prosecutorial misconduct was not flagrant and pervasive:

… [W]e conclude that, in light of the particular circumstances that led the police officers to the premises in search of a recently missing 17-year-old girl, that limited search (of the garbage bag) fell within the recognized emergency exception to the warrant requirement … . …

The Supreme Court recognized that “case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances” … . “One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment . . . Such exigencies include the need to . . . protect individuals who are threatened with imminent harm” … . …

The testimony at trial established that defendant could not be excluded as the source of the DNA found on the victim’s nail and that the chance of randomly selecting an unrelated individual as the source of the DNA was less than one in 114,000. Here, … the sole mischaracterization of the DNA evidence ” did not rise to the flagrant and pervasive level of misconduct [that] would deprive defendant of due process,’ “… . People v Lively, 2018 NY Slip Op 05413, Fourth Dept 7-25-18

CRIMINAL LAW (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO MOVE TO SUPPRESS THE RESULTS OF THE WARRANTLESS SEARCH OF A GARBAGE BAG AND CELL-SITE LOCATION RECORDS WHICH WERE JUSTIFIED BY EXIGENT CIRCUMSTANCES , AND DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF THE STRENGTH OF DNA EVIDENCE (FOURTH DEPT))

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OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT).

The Third Department, over a dissent, determined the officer who stopped the car in which defendant was a passenger had a reasonable basis to frisk the defendant for safety. The frisk resulted in the seizure of a handgun. At the time of the frisk, the officer knew the defendant was out past his parole curfew and suspected defendant had violated his conditions of parole by consuming alcohol. In addition, defendant was riding in an unregistered car and the driver did not have a license:

A suspect’s status as a parolee is a relevant factor to consider when evaluating the reasonableness of a particular search or seizure  … , particularly where, as here, the officer had reason to believe that defendant was then and there violating both the curfew and alcohol conditions of his parole. The hour was late and the driver was driving an unregistered vehicle without a license. Defendant’s evasive, if not flippant, “sales” response as to why he was on parole, coupled with his repeated denial of alcohol use, heightened the volatility of the situation. Cumulatively, these factors validate County Court’s conclusion that the officer had a reasonable basis to conduct the frisk to assure his own safety … . People v Carey, 2018 NY Slip Op 05376, Third Dept 7-19-18

CRIMINAL LAW (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/STREET STOPS (FRISK, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/PAT DOWN SEARCH  (OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SEARCH AND SEIZURE (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/SUPPRESSION (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/EVIDENCE (STREET STOPS, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))/FRISK (PAT DOWN SEARCH, OFFICER HAD A REASONABLE BASIS TO CONDUCT A FRISK OF THE DEFENDANT FOR SAFETY REASONS AFTER A VEHICLE STOP (THIRD DEPT))

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HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND, EVIDENTIARY ARGUMENT NOT RAISED BELOW OR ON APPEAL CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department, over a dissent, affirmed defendant’s conviction for possession of a weapon. In a comprehensive decision too detailed to fairly summarize here the court ruled: the stop of the vehicle in which defendant was a passenger was justified by traffic infractions; the officer’s noticing pictures of firearms on defendant’s phone and the butt of a handgun on defendant’s hip justified asking defendant to step out of the car; defendant’s statement as he got out of the car that he had a handgun on him was admissible; defendant was not entitled to put in evidence his prior statements about his intent to turn the weapon in at the police station; pictures of handguns from defendant’s phone that did not relate to the handgun which was the subject of the possession charge should not have been admitted (harmless error); and defense counsel should have been allowed to cross-examine one of the arresting officers about a federal civil rights suit which had been settled which alleged misconduct with regard to an arrest (harmless error). The court rejected the arguments that the prior statements about turning the handgun in should have been admitted as prior consistent statements or under the state of mind exception to the hearsay rule:

… [A]s an essential part of its case-in-chief, the prosecution elicited, through the testimony of a police officer, the defendant’s statement regarding his intent to surrender the gun. As was his right, the defendant elected not to take the stand and subject himself to cross-examination, instead relying upon the officer’s testimony to establish his defense of temporary lawful possession of the weapon. Having so elected, he foreclosed any possibility that the prosecutor would cross-examine him and challenge his defense as a recent fabrication during such questioning. Thus, since the requisite claim of a recent fabrication was absent, the defendant could not adduce evidence of a prior consistent statement to rebut it … . * * *

… [O]our dissenting colleague instead primarily argues that [the] proffered testimony regarding the defendant’s alleged statement to her of his intention to surrender the gun should have been admitted as evidence of the defendant’s state of mind rather than for the truth of its contents, thereby obviating any hearsay objection. However, the defendant never advanced this “state of mind” argument at the trial level, nor does he currently contend on this appeal that his purported statement to Armstrong should have been admitted as evidence of his state of mind. Accordingly, this issue is both unpreserved for appellate review … and not before this Court for consideration on the present appeal … . People v Watson, 2018 NY Slip Op 05342, Second Dept 7-18-18

CRIMINAL LAW (EVIDENCE, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/APPEALS (CRIMINAL LAW, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND, EVIDENTIARY ARGUMENT NOT RAISED BELOW OR ON APPEAL CANNOT BE CONSIDERED (SECOND DEPT))/PRIOR CRIMES  (EVIDENCE, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/MOLINEUX HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/POLICE OFFICERS (CROSS-EXAMINATION, HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/PRIOR CONSISTENT STATEMENT HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/STATE OF MIND (HEARSAY, , HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))/HEARSAY (HARMLESS ERROR TO ADMIT EVIDENCE OF PRIOR CRIMES, HARMLESS ERROR TO PROHIBIT CROSS-EXAMINATION OF ARRESTING OFFICER ABOUT A SETTLED FEDERAL CIVIL RIGHTS SUIT, STATEMENTS MADE BY DEFENDANT NOT ADMISSIBLE AS PRIOR CONSISTENT STATEMENTS OR AS EVIDENCE OF STATE OF MIND (SECOND DEPT))

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