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FAILURE TO RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two judge dissenting opinion, determined defendant’s objection to a juror who spoke out during the about defense counsel’s repeated use of a racial slur was not preserved for appeal. Defense counsel did not make the specific objection relied upon on appeal and was silent when objections were made by another defense attorney. The court further held that references to gang structure in the prison where the assault occurred were admissible to show the defendant’s motive and intent to join the assault:

To preserve an issue of law for appellate review, “counsel must register an objection and apprise the court of grounds upon which the objection is based at the time’ of the allegedly erroneous ruling or at any subsequent time when the court had an opportunity of effectively changing the same'” … . * * *

We are unpersuaded, first, by defendant’s argument that because his counsel referred to Juror Six as “grossly unqualified,” he preserved his Buford claim that the trial court had to make an inquiry into the juror’s ability to be impartial. What defendant ignores is that counsel’s reference to Juror Six being grossly unqualified was raised solely in relation to his consistent position that the only way to protect defendant’s right to a fair and impartial jury was to grant the specific remedy of a mistrial. Counsel argued vigorously that Juror Six had irreversibly tainted the entire jury——a defect in the process that would require more than the discharge of a single juror … . That being the case, counsel’s failure to join another codefendant’s request for a Buford inquiry after the court denied the mistrial motion makes plain the singular course set by counsel. …

Defendant’s alternative argument, that he preserved the issue for appellate review by way of his codefendant’s objection, is similarly unpersuasive. The Court has, in a different context, rejected the proposition that an issue is preserved for appellate review, notwithstanding a defendant’s failure to expressly present the matter to the trial court, merely because another party or codefendant protested or objected. * * *

… [T]he testimony elicited by the People about the Bloods was probative of defendant’s motive and intent to join the assault on complainant, and provided necessary background information on the nature of the relationship between the codefendants, thus placing the charged conduct in context … . The testimony was intended to explain why defendant and one of the codefendants were quick to join in the fight, as well as the gang-related meaning of the words complainant alleged that the codefendant used during and after the attack. In fact, very little of the investigator’s testimony focused on sensational details about the Bloods. The testimony described how members are identified and briefly discussed how carrying out an act of violence on behalf of a member might allow another member to rise in the gang’s hierarchy. People v Bailey, 2018 NY Slip Op 04383, CtApp 6-14-18

CRIMINAL LAW (APPEALS, EVIDENCE, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/APPEALS (CRIMINAL LAW, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/EVIDENCE (CRIMNAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/GANGS (CRIMINAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))

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DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a concurring opinion, determined that defendant was properly convicted of depraved indifference assault in connection with the long-term abuse and serious injury inflicted on his live-in girlfriend. The court noted that there is no conflict between the intention to inflict serious injury and a finding of depraved indifference in assault cases (grave risk of death). The court further noted that the circumstances giving rise to depraved indifference assault need not fit into the narrow exceptions carved out for depraved indifference murder:

Here, the trial court instructed the jury … that they could find defendant acted with depraved indifference to human life if, “having a conscious objective not to kill but to harm, he engages in . . . a brutal, prolonged and potentially fatal course of conduct against a particularly vulnerable victim.” The failure of either party to object to the charge meant that “the law as stated in that charge became the law applicable to the determination of the rights of the parties . . . and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged”… . Thus, “the legal sufficiency of defendant’s conviction must be viewed in light of the court’s charge as given without exception” … .

Viewed as such, the jury could reasonably conclude that the victim’s injuries were so severely debilitating that the repeated trauma rendered her particularly vulnerable. In fact, the victim could barely move and speak before she lapsed into a coma. The People also presented sufficient evidence from which the jury could infer that the victim’s injuries persisted for a prolonged period of time. * * *

… [D]defendant is incorrect that depraved indifference assault must fit into one of the narrow exceptions for bringing depraved indifference murder charges in one-on-one killings. * * * … [D]epraved indifference assault should not be constrained to the exceptions to the rule against charging depraved indifference murder in one-on-one killings. People v Wilson, 2018 NY Slip Op 04380, CtApp 6-14-18

CRIMINAL LAW (EVIDENCE, DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/EVIDENCE (CRIMINAL LAW, DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/DEPRAVED INDIFFERENCE ASSAULT (DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))/ASSAULT (DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP))

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STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP).

The Court of Appeals, over an extensive three-judge dissenting opinion, determined that the alleged declarations of three witnesses who testified at the hearing on defendant’s motion to vacate his conviction did not meet the criteria for declarations against penal interest. Therefore the statements were not admissible and the motion to vacate was properly denied. The decision is fact-specific and cannot be fairly summarized here. The defendant was convicted of kidnapping Allen, who has not been seen since she disappeared in 1994:

At the hearing defendant called as witnesses all three declarants of the hearsay statements proffered as admissions against penal interests, as well as additional witnesses who testified to inculpatory statements alleged to have been made by each of the declarants. The declarants denied making the admissions and any complicity in Allen’s kidnapping. Nevertheless, enabled by the speculative nature of the disparate admissions containing few details, defendant pursued more than one theory of complicity at the hearing — attempting to establish that, either singly or in combination, the declarants were involved in the kidnapping or the murder or the disposal of Allen’s body … . * * *

In order to be admissible under that exception, “the following elements must be present: first, the declarant must be unavailable as a witness at [the hearing]; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability” … . …

.. [T]the record supports County Court’s determination that the independent corroboration necessary for admissibility of the declarations against penal interest was not sufficient. The requisite independent evidence circumvents fabrication and augments the trustworthiness of the declaration. “By imposing such a requirement, a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions” … . As we have explained, this determination of the reliability of proffered declarations against penal interest “involves a delicate balance of diverse factors and is entrusted to the sound discretion of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability. The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . People v Thibodeau, 2018 NY Slip Op 04378, CtApp 6-14-18

CRIMINAL LAW (EVIDENCE, DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/EVIDENCE (CRIMINAL LAW, DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/HEARSAY (CRIMINAL LAW,  DECLARATIONS AGAINST PENAL INTEREST, STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/DECLARATIONS AGAINST PENAL INTEREST (STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))/VACATE CONVICTION, MOTION TO (STATEMENTS ALLEGED TO EXCULPATE DEFENDANT DID NOT MEET THE CRITERIA FOR DECLARATIONS AGAINST PENAL INTEREST, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED (CT APP))

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THERE IS NO ACTUAL INNOCENCE GROUND FOR VACATION OF A GUILTY PLEA UNDER CRIMINAL PROCEDURE LAW 440.10 (h) (CT APP).

The Court of Appeals, reversing the Appellate Division, over a concurring opinion and a two-judge dissent, determined defendant’s motion to vacate her conviction (by guilty plea) on actual innocence grounds should not have been granted. Actual innocence, the court held, is not a ground for relief in this context. Defendant was a nurse who pled guilty to endangering the welfare of a disabled person. Defendant had given the severely disabled child a bath and the child apparently sustained third degree burns. In support of her motion to vacate, the defendant presented expert evidence, including biopsy testing, that the apparent burns were the result of an allergic reaction (TEN/SJS). Defendant had been sued civilly and won, despite being precluded from contesting liability:

​The evidence at issue here was not newly discovered. The information regarding TEN/SJS and the existence of the biopsy testing were a part of the victim’s medical records, and the possibility of obtaining a medical expert on behalf of defendant had been discussed with defense counsel before the guilty plea was entered. Since the evidence put forth in support of defendant’s actual innocence claim was discoverable before the guilty plea had her attorney pursued that course of investigation, defendant’s challenge to her conviction falls squarely within CPL 440.10 (1) (h) … .

Moreover, although defendant provided the biopsy results and an expert affidavit to support the conclusion that she was innocent of scalding the victim with hot water, that evidence only raises some doubt as to her guilt by setting up a battle of experts. It does not establish her factual innocence — particularly in light of the significant barrier presented by her inculpatory statements and guilty plea. …

Permitting a collateral attack on a guilty plea based on a claim of new evidence that contradicts the solemn admission of guilt entered during the course of a judicial proceeding free of constitutional error would have enormous ramifications to the efficacy of our criminal justice system. The legislature has not sanctioned such claims in CPL 440.10 with the exception of the production of DNA evidence demonstrating the identity of the actual assailant, and even that narrow exception has legislatively imposed procedural limitations … . Defendant nonetheless asks us to judicially create this extraordinary path for a defendant who has pleaded guilty. We decline to do so. …

… [W]here the defendant has been convicted by guilty plea, there is no actual innocence claim cognizable under CPL 440.10 (1) (h). People v Tiger, 2018 NY Slip Op 04377, CtApp 6-14-18

CRIMINAL LAW (ACTUAL INNOCENCE, THERE IS NO ACTUAL INNOCENCE GROUND FOR VACATION OF A GUILTY PLEA UNDER CRIMINAL PROCEDURE LAW 440.10 (h) (CT APP))/VACATE CONVICTION, MOTION TO (ACTUAL INNOCENCE, THERE IS NO ACTUAL INNOCENCE GROUND FOR VACATION OF A GUILTY PLEA UNDER CRIMINAL PROCEDURE LAW 440.10 (h) (CT APP))/ACTUAL INNOCENCE (VACATE CONVICTION, MOTION TO, THERE IS NO ACTUAL INNOCENCE GROUND FOR VACATION OF A GUILTY PLEA UNDER CRIMINAL PROCEDURE LAW 440.10 (h) (CT APP))/GUILTY PLEA (ACTUAL INNOCENCE, THERE IS NO ACTUAL INNOCENCE GROUND FOR VACATION OF A GUILTY PLEA UNDER CRIMINAL PROCEDURE LAW 440.10 (h) (CT APP))

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PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action because the proof of mailing of the required notice did not meet the requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . Here, contrary to the plaintiff’s contention, the “affidavit of mailing” of a vice president for loan documentation of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . US Bank N.A. v Sims, 2018 NY Slip Op 04374, Second Dept 6-13-18

​FORECLOSURE (NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, MAILING, NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MAILING (FORECLOSURE,  PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT AUTHENTICATED (SECOND DEPT).

The Second Department determined Supreme Court properly refuse to admit a surveillance video because it was not properly authenticated:

“Testimony from [a] videographer that he [or she] took the video, that it correctly reflects what he [or she] saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape” … . Where the videographer is not called as a witness, the video can still be authenticated with testimony that the video “truly and accurately represents what was before the camera”… . Furthermore, “[e]vidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering” … . Here, given the inability of the witness to testify regarding the editing of the master recording and the accuracy of the video excerpt, and his lack of personal knowledge as to the creation of the proffered disc and how it came into the possession of the plaintiff’s attorneys, we agree with the court’s determination that the plaintiff failed to properly authenticate the video excerpt … . Torres v Hickman, 2018 NY Slip Op 04372, Second Dept 6-13-18

​EVIDENCE (VIDEO, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/AUTHENTICATION (EVIDENCE, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/VIDEO (EVIDENCE, AUTHENTICATION, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/AUTHENTICATION (EVIDENCE, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))

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SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the defendant-school district’s motion for summary judgment in this negligent supervision case was properly denied. And plaintiffs’ motion for an adverse or negative inference jury instruction based on the school district’s destruction of video surveillance evidence was properly granted. Infant plaintiff, a fifth grader, fell from the top of a set of monkey bars while attempting a dangerous cartwheel to a handstand. Apparently he successfully did the stunt just before and fell on his second attempt. The school was aware that infant plaintiff needed some extra supervision because of his past actions. The school preserved only the video of the failed second attempt of the stunt and nothing prior:

… [T]here are triable issues of fact as to whether the infant plaintiff’s alleged prior conduct and his reputation warranted more appropriate supervision, or heightened supervision, and, if so, whether such supervision would have prevented the accident … . The evidence submitted in support of the defendant’s motion for summary judgment did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it… . Additionally, the doctrine of primary assumption of risk is not an applicable defense to the facts herein … . …

… [T]he plaintiffs demonstrated that the defendant had an obligation to preserve surveillance footage of the moments leading up to the infant plaintiff’s accident at the time of its destruction, but negligently failed to do so. Given the nature of the infant plaintiff’s injuries and the immediate documentation and investigation into the cause of the accident by the defendant’s employees, the defendant was clearly on notice of possible litigation and, thus, under an obligation to preserve any evidence that might be needed for future litigation … . The defendant failed to meet this obligation. The defendant acted negligently in unilaterally deciding to preserve only 24 seconds of footage and passively permitting the destruction of the remaining footage, portions of which were undisputedly relevant to the plaintiffs’ case. SM v Plainedge Union Free Sch. Dist., 2018 NY Slip Op 04370, Second Dept 6-13-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (SPOLIATION, NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/SPOLIATION (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))

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ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant’s right to counsel was not violated when he was questioned about a murder while he was represented on an unrelated marijuana charge. Defendant was stopped for traffic violations and arrested when marijuana was found in the car he was driving, a black Hyundai with tinted windows.  An attorney was assigned for the marijuana charge.  A BlackBerry found in the car was subsequently traced to a robbery where a black Hyundai with tinted windows was seen. According to a witness to a shooting, unrelated to the robbery, the shooter arrived and sped away in a black Hyundai with tinted windows. Defendant, when he was represented only on the marijuana charge, was questioned about the robbery and the murder and admitted to being the get-away driver. Supreme Court allowed defendant’s statement about the murder in evidence and defendant was convicted of murder. The Appellate Division held that the statement about the murder should have been suppressed because the robbery and the marijuana charge were related and Supreme Court had suppressed the statement about the robbery. The Court of Appeals held that the proper analysis required looking at the marijuana charge and the murder, not the marijuana charge and the robbery. Because the marijuana charge was completely unrelated to the murder, questioning about the murder did not violate defendant’s right to counsel:

​Under Cohen [90 NY2d 632] the relevant comparison is between the unrepresented and the represented charges. The first category concerns whether “questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel”… . The purpose of the rule is to protect the right to counsel once it has attached; if the questioning on the unrepresented charge will inevitably lead to statements about the represented charge, the statements should be suppressed. However, if the relationship between the unrepresented and the represented charges is insufficient, then “discrete questioning [on the unrepresented charge] by a police officer mindful and respectful of the indelible attachment of defendant’s right to counsel [on the represented charge] would not [] create[] any serious risk of incriminating responses as to the latter crime[]” … . Thus, the question the Appellate Division should have considered is whether the murder charge was sufficiently related to the marijuana charge. No evidence in the record would support that claim; indeed, even [defendant] does not press it. People v Henry, 2018 NY Slip Op 04275, CtApp 6-12-18

CRIMINAL LAW (RIGHT TO COUNSEL, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/ATTORNEYS (RIGHT TO COUNSEL, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/RIGHT TO COUNSEL ( ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/EVIDENCE (CRIMINAL LAW, ALTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))/SUPPRESSION (CRIMINAL LAW, STATEMENTS, RIGHT TO COUNSEL, LTHOUGH DEFENDANT WAS REPRESENTED ON A MARIJUANA CHARGE, QUESTIONING ABOUT AN UNRELATED MURDER DID NOT VIOLATE DEFENDANT’S RIGHT TO COUNSEL, APPELLATE DIVISION SHOULD NOT HAVE SUPPRESSED DEFENDANT’S STATEMENT ABOUT THE MURDER (CT APP))

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CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT).

The Fourth Department determined the trial court properly prohibited cross examination of the plaintiff about his criminal history and plaintiff’s expert properly relied upon hearsay statements by plaintiff’s treating physician:

… [W]hile a civil litigant is granted broad authority to use the criminal convictions of a witness to impeach the credibility of that witness, the nature and extent of cross-examination, including with respect to criminal convictions, remains firmly within the discretion of the trial court … . …

It is well settled that ” opinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is equally well settled, however, that an expert is permitted to offer opinion testimony based upon facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ “… . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ “… , and “provided that it does not constitute the sole or principal basis for the expert’s opinion” … . Tornatore v Cohen, 2018 NY Slip Op 04145, Fourth Dept 6-8-18

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/MEDICAL MALPRACTICE (EVIDENCE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))/CRIMINAL HISTORY (EVIDENCE, MEDICAL MALPRACTICE, CROSS EXAMINATION OF PLAINTIFF ABOUT HIS CRIMINAL HISTORY PROPERLY PRECLUDED IN THIS MEDICAL MALPRACTICE ACTION, EXPERT OPINION PROPERLY RELIED UPON HEARSAY STATEMENTS BY PLAINTIFF’S TREATING PHYSICIAN (FOURTH DEPT))

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DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the portion of defendant’s videotaped statement that was allowed in evidence should have been suppressed, and the jury should not have heard defendant’s grand jury testimony because he was not competent to testify at the time:

… [T]he court erred in suppressing only a portion of his videotaped statement to police investigators inasmuch as the portion of the statement that the court refused to suppress was also obtained prior to the administration of Miranda warnings. Although the court properly determined that defendant was in custody from the outset of the interview, we conclude that the court erred in determining that Miranda warnings were not required before defendant admitted to having a foot fetish inasmuch as “the facts indicated that an interrogational environment existed” from the outset of the interview … . …

Although a defendant is presumed to be competent to testify before the grand jury … , here, we conclude that defendant rebutted that presumption. Indeed, defendant’s grand jury testimony, a rambling, delusional and bizarre narrative of government conspiracy, prompted one grand juror to inquire of defendant whether he had any psychiatric diagnoses. Within days of his testimony at the grand jury, the arraigning court referred defendant for a CPL article 730 psychiatric examination based upon what the court described as “confused, or bizarre behavior” and the inability “to understand charges or court processes.” Shortly thereafter, two psychiatric examiners found that defendant lacked capacity to understand the proceedings against him or to assist in his defense based upon a diagnosis of Delusional Disorder, Paranoid Type. As a result, defendant was involuntarily committed to a psychiatric facility under the auspices of the Office of Mental Health. We thus conclude that defendant rebutted the presumption of competence, and that the court abused its discretion in denying the motion to preclude the grand jury testimony … . People v Perri, 2018 NY Slip Op 04134, Fourth Dept 6-8-18

CRIMINAL LAW (DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/SUPPRESS, MOTION TO  (DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/STATEMENTS (CRIMINAL LAW, PRE-MIRANDA, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/MIRANDA (CRIMINAL LAW, PRE-MIRANDA, DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/GRAND JURY (DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))/COMPETENCE (CRIMINAL LAW, GRAND JURY TESTIMONY, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT))

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