Evidence – Page 279 – New York Appellate Digest

Appeals, Attorneys, Criminal Law, Evidence

FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing defendant’s conviction in the interest of justice, determined the failure to instruct the jury witnesses were accomplices as a matter of law requiring corroboration of their testimony was reversible error, and defense counsel’s failure to request the instruction constituted ineffective assistance:

We conclude that the lack of an accomplice corroboration charge (see CPL 60.22) warrants a new trial, and we reach this unpreserved issue in the interest of justice. The People’s case against defendant was based almost entirely on the testimony of three witnesses, each of whom was either an accomplice as a matter of law or a person who could reasonably be viewed by the jury as an accomplice as a matter of fact… . While there was some nonaccomplice evidence, it was far from extensive … . In fact, one of the only other witnesses undermined the accomplice testimony by establishing that defendant was not initially identified as a perpetrator of the underlying assault.

Moreover, we conclude that counsel’s admittedly nonstrategic failure to request the instruction constituted ineffective assistance under all the circumstances of the case … . People v Douglas, 2018 NY Slip Op 02397, First Dept 4-5-18

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/INEFFECTIVE ASSISTANCE (FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/ACCOMPLICES (CRIMINAL LAW, EVIDENCE, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))/CORROBORATION (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT))

April 5, 2018

Appeals, Criminal Law, Evidence

FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT).

The Third Department, reversing defendant’s conviction in the interest of justice, determined the jury should have been instructed that a witness, Dozier, was an accomplice as a matter of law and his testimony therefore required corroboration:

… “[T]o be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial”… .

Here, Dozier’s unimpeached testimony established that he was at the second-floor apartment on the day in question to purchase crack cocaine … . He was arrested and charged, along with defendant and the remaining codefendants, with crimes stemming from his presence in the apartment on that date and thereafter pleaded guilty to criminal possession of a controlled substance in the third degree in exchange for his truthful testimony against defendant. Because Dozier “could have been (and was) charged with a crime ‘based upon the same or some of the same facts or conduct’ upon which the charges against defendant were based,” he was an accomplice as a matter of law … . County Court was therefore required to instruct the jury that Dozier was an accomplice as a matter of law and that defendant could not be convicted on Dozier’s testimony absent corroborative evidence (seeCPL 60.22 [1]). “Failure to so charge the jury was necessarily harmful error,” given that the case against defendant rested substantially — if not exclusively — upon the testimony of Dozier … . People v Pettus, 2018 NY Slip Op 02366, Third Dept 4-5-18

CRIMINAL LAW (ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE REVERSAL, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/INTEREST OF JUSTICE (APPEALS, CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/ACCOMPLICES (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/JURY INSTRUCTIONS, (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/CORROBORATION (CRIMINAL LAW, ACCOMPLICES, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ACCOMPLICE, FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT))

April 5, 2018

Criminal Law, Evidence

REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing defendant’s conviction, determined the jury should have been allowed to hear and see the videotaped statements made by the detective to the defendant prior to the Miranda warnings and defendant’s confession to the possession of drugs found in her house. Defendant’s son had also been arrested and the detective told defendant her son was involved in a shooting and was going to prison. Defendant argued at trial that she falsely confessed to the possession of the drugs in an effort to protect her son:

… [T]he pre-Miranda portion of the recorded interview does not constitute impermissible hearsay. It consists of statements by the detective to defendant concerning her son’s gang membership, extensive criminal behavior and suspected involvement in the shooting that took place the night before. Defendant did not seek to introduce this portion of the recording to prove the truth of any of the statements made therein. Rather, she sought to put this evidence before the jury “to establish [her] state of mind upon hearing [them]” … .

Further, the substance of the pre-Miranda portion of the interrogation was relevant and material to the state of mind purposes for which defendant sought to offer it. It is beyond cavil that the circumstances surrounding the making of a confession, including the manner in which it was extracted, are relevant to the question of its voluntariness … . Thus, the statements and representations made by the detective during the pre-Miranda portion of the interrogation, and the environment in which they were uttered, had a bearing on whether defendant’s inculpatory statements were the product of a “‘free and unconstrained'” state of mind … . …

Under defendant’s theory of the case, the statements made by the detective during the pre-Miranda portion of the recording not only went to the voluntariness of her confession, but also established why she confessed falsely. Accordingly, County Court’s evidentiary rulings here excluded evidence directly relevant to a central issue in this case — defendant’s state of mind at the time that she confessed to possessing the drugs. People v Hall, 2018 NY Slip Op 02368, Third Dept 4-5-18

CRIMINAL LAW (REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/HEARSAY (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/CONFESSIONS (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/STATE OF MIND (HEARSAY, CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))

April 5, 2018

Appeals, Criminal Law, Evidence

ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial court’s allowing Sandoval evidence of a prior robbery which was the subject of a pending appeal was error, and the error was not harmless under the facts:

We … reverse the judgment of conviction because of an erroneous Sandoval ruling made by the Supreme Court … . At trial, the court permitted the defendant to be cross-examined about a prior robbery conviction which, at that time, was the subject of a pending appeal … . However, the Court of Appeals has held, and the People concede, that defendants may not be examined “about the underlying facts of an unrelated criminal conviction on appeal, for the purpose of impeaching his credibility” …

Sandoval errors are subject to harmless error analyses … . Here, however, we cannot conclude that the evidence of guilt was overwhelming or that there was no reasonable possibility that the error might have contributed to the conviction … . People v Wahaab, 2018 NY Slip Op 02332, Second Dept 4-4-18

CRIMINAL LAW (ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW, EVIDENCE, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))

April 4, 2018

Criminal Law, Evidence

DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).

The Second Department determined defendant’s conviction for possession of a weapon violated the protection against double jeopardy. Defendant had pled guilty to possession of the same weapon in a different county. However, proof the conviction was admissible in the trial under Molineux criteria:

Prior to the defendant’s trial in this case, the defendant pleaded guilty in Nassau County to possessing the same gun that was used in the instant robbery. There was no evidence offered at trial to show that the defendant’s possession of the gun was not continuous. Thus, the defendant’s possession of the same gun on December 14, 2011, in Kings County in connection with the instant robbery, and on December 20, 2011, in Nassau County, constituted a single offense for which he could be prosecuted only once … . …

… [T]he Supreme Court properly admitted evidence of the defendant’s conviction in Nassau County … , the underlying facts of that conviction, including that the gun was recovered during a car stop in Nassau County … , and ballistics evidence showing that the loaded gun recovered from defendant’s car … , was the same gun used in the instant robbery committed in Kings County … . Evidence of the defendant’s conviction in Nassau County of criminal possession of a weapon in the fourth degree was probative of the defendant’s intent to commit the instant robbery in the complainant’s home, was inextricably interwoven with the instant robbery, and was necessary to complete the narrative of events leading to the defendant’s arrest in the instant robbery case … . In addition, the probative value of this evidence outweighed the risk of prejudice to the defendant … , and the court’s limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence … . People v Wright, 2018 NY Slip Op 02347, Second Dept 4-4-18

CRIMINAL LAW (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/DOUBLE JEOPARDY (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))

April 4, 2018

Civil Procedure, Contract Law, Evidence, Real Estate

CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an enforceable real estate purchase contract had been formed and plaintiff’s motion to conform the complaint to the proof at trial should have been granted. The court noted that the parties’ expectation that a more formal contract will be executed later is not really relevant:

Although Berger [defendant’s principal] testified that he expected that a final contract would be signed after it had been put in “proper form” by an attorney, “the existence of a binding contract is not dependent on the subjective intent of [the parties]” … . “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . Notably, the … contract contains all of the essential terms of a contract for the sale of real property, designated the parties, and identified and described the subject matter of the contract . The contract was signed … , and all changes to the contract were initialed … . Moreover, the contract contained no provision indicating that an additional signed agreement would be necessary to create a binding agreement … and, even where the parties “anticipat[e] that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement” … . …

The Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion to conform its complaint to the proof at trial (see CPLR 3025[c]). “[A]bsent prejudice, courts are free to permit amendment even after trial” … . “The burden of establishing prejudice is on the party opposing the amendment” … . “Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” … . Here, in opposition to the plaintiff’s motion, the defendants failed to show that the amendment would hinder the preparation of their cases or prevent them from taking some measure in support of their positions at trial and, therefore, the plaintiff’s motion to conform its complaint to the proof should have been granted. Metropolitan Lofts of NY, LLC v Metroeb Realty 1, LLC, 2018 NY Slip Op 02319, Second Dept 4-4-18

CONTRACT LAW CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/COMPLAINT (CONFORM TO PROOF AT TRIAL, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, COMPLAINT, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFORM TO PROOF AT TRIAL (CIVIL PROCEDURE, COMPLAINT, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

April 4, 2018

Civil Procedure, Evidence, Labor Law-Construction Law

INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP).

The Court of Appeals, in a memorandum which did not describe the facts, reversing the appellate division, determined the award of summary judgment to the plaintiff in this Labor Law 240 (1) action was premature. There was insufficient evidence of how the accident occurred and discovery might aid in that regard:

Here, where there is insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months, summary judgment was prematurely granted … . Somereve v Plaza Constr. Corp., 2018 NY Slip Op 02288, CtApp 4-3-18

LABOR LAW-CONSTRUCTION LAW (INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/CIVIL PROCEDURE (SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/EVIDENCE (SUMMARY JUDGMENT, LABOR LAW-CONSTRUCTION LAW, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/CIVIL PROCEDURE (SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, EVIDENCE, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))/DISCOVERY (LABOR LAW-CONSTRUCTION LAW, SUMMARY JUDGMENT, INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP))

April 3, 2018

Attorneys, Criminal Law, Evidence

DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined (1) defendant, who wanted to question witnesses with the aid of standby counsel, did not make an unequivocal request to represent himself requiring a searching inquiry by the court, and (2) the defendant, who did not notify the People of his wish to present psychiatric testimony (required by CPL 250.10), was properly precluded from presenting psychiatric testimony for the purpose of calling into question the voluntariness of his confession:

Defendant urges that a court presented with a request to proceed pro se with “standby counsel” should make an in-depth inquiry whether defendant still desires to represent himself, once defendant is informed that dual representation will not be provided. We hold that further colloquy by the trial court is not constitutionally required when a defendant remains equivocal, despite having been informed by the court on more than one occasion that his right to self-representation includes a waiver of the right to an attorney, as here. When a defendant asks to proceed “pro se with standby counsel” and the trial court explains the scope of the right to proceed pro se, and specifically denies the defendant’s request for hybrid representation, the better practice would be to again ask the defendant if he or she still wants to proceed without counsel. Nevertheless, “[w]hile such inquiries may be the better practice, we will not compel courts to engage in any particular catechism” before denying an equivocal request to proceed pro se because “[n]either our Constitution nor our precedent requires it” … . * * *

Defendant narrowly construes the phrase “any other defense” in CPL 250.10 (1) (c) to be limited to psychiatric evidence offered in support of a complete defense to an element of the crime, such as mens rea; he does not interpret the statute to include a defense strategy to offer evidence that allows the jury to negate the prosecution’s evidence of guilt. As explained below, this argument ignores the legislative intent, our precedent espousing the very purpose of notice, and the fact that, if a defendant’s confession was the primary evidence of guilt and the defendant raises the issue of voluntariness at trial, then voluntariness could be a complete defense to the crime … . Notably, our Court has previously labeled a defendant’s challenge to the voluntariness of his statement pursuant to CPL 710.70 a “defense” … . People v Silburn, 2018 NY Slip Op 02286, CtApp 4-3-18

CRIMINAL LAW (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/ATTORNEYS (DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/EVIDENCE (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PSYCHIATRIC OPINION (CRIMINAL LAW, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/EXPERT OPINION (CRIMINAL LAW, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/PRO SE (CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/NOTICE (CRIMINAL LAW, CPL 250.10, PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/CONFESSIONS (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))/CPL 250.10 (CRIMINAL LAW, VOLUNTARINESS, ,PSYCHIATRIC OPINION, DEFENDANT’S WISH TO PRESENT PSYCHIATRIC TESTIMONY TO QUESTION THE VOLUNTARINESS OF HIS CONFESSION WAS PROPERLY DENIED BECAUSE CPL 250.10 NOTICE WAS NOT PROVIDED (CT APP))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, DEFENDANT’S REQUEST TO QUESTION WITNESSES WITH THE AID OF STANDBY COUNSEL WAS NOT AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF REQUIRING A SEARCHING INQUIRY (CT APP))

April 3, 2018

Attorneys, Criminal Law, Evidence

ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department noted that a text message from defendant indicating he needed money “just in case for a lawyer” should not have been admitted in evidence in this homicide case. The error was deemed harmless however:

The People should not have been permitted to introduce, as evidence of defendant’s consciousness of guilt, a text exchange the day after the crime in which defendant indicated that he needed money “just in case for a lawyer.” This evidence was an improper infringement of defendant’s right to counsel … . However, under all the circumstances, including the overwhelming evidence of defendant’s guilt, which included the testimony of one of the victims, any error in the admission of the text exchange and related summation comment on it was harmless beyond a reasonable doubt … . The circumstantial evidence was compelling, and it led to an inescapable inference that the deceased and surviving victims were shot by defendant, the only other occupant of the car in which the shootings took place. People v Suero, 2018 NY Slip Op 02269, First Dept 3-29-18

CRIMINAL LAW (EVIDENCE, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT))

March 29, 2018

Administrative Law, Evidence, Vehicle and Traffic Law

APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

March 29, 2018

FAILURE TO INSTRUCT THE JURY THAT WITNESSES WERE ACCOMPLICES AS A MATTER OF LAW REQUIRING CORROBORATION OF THEIR TESTIMONY WAS REVERSIBLE ERROR, DEFENSE COUNSEL’S FAILURE TO REQUEST THE INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE, ISSUE REACHED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

FAILURE TO INSTRUCT THE JURY THAT A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW REQUIRED REVERSAL (THIRD DEPT).

REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT).

ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT).

DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).

CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

INSUFFICIENT EVIDENCE OF HOW THE ACCIDENT OCCURRED IN THIS LABOR LAW 240 (1) ACTION, DISCOVERY MAY AID THE INQUIRY, SUMMARY JUDGMENT AWARD WAS PREMATURE (CT APP).

ALLOWING IN EVIDENCE DEFENDANT’S TEXT THAT HE MAY NEED MONEY FOR AN ATTORNEY WAS (HARMLESS) ERROR BECAUSE IT WAS AN INFRINGEMENT ON THE RIGHT TO COUNSEL (FIRST DEPT).

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