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REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT).

The Fourth Department determined a report concerning an investigation by the Department of Health which cited defendant health system for failure to inform plaintiff and his family of the unintentional disconnection of a heart-lung machine was not subject to disclosure:

Defendant met its burden of establishing that the information contained in the report was ” generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j’ “… . Thus, the information contained in the report is expressly exempted from disclosure under CPLR article 31 pursuant to the confidentiality conferred on information gathered by defendant in accordance with Education Law § 6527 (3) and Public Health Law § 2805-m … . Contrary to plaintiff’s contention that the privilege is “negated” because the report purportedly contains information that was improperly omitted from Pasek’s [plaintiff’s] medical records, it is well settled that “information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy”… . Indeed, the purpose of the privilege “is to enhance the objectivity of the review process’ and to assure that medical review [or quality assurance] committees may frankly and objectively analyze the quality of health services rendered’ by hospitals . . . , and thereby improve the quality of medical care” … . Pasek v Catholic Health Sys., Inc., 2018 NY Slip Op 02069, Fourth Dept 3-23-18

NEGLIGENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/MEDICAL MALPRACTICE ( REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))

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ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a strong two-justice dissent, affirmed defendant’s murder conviction despite the introduction of highly prejudicial evidence of unrelated crimes and defense counsel’s failure to object to that inadmissible propensity evidence. The majority decided not to address the inadmissible propensity evidence because defense counsel did not object to it (error not preserved for appeal). The majority further determined that allowing the jury to hear the inadmissible propensity evidence was a valid defense strategy (painting the admission to the charged crime and other crimes as merely tough talk):

We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . It “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel’s summation, was that defendant did not kill the victim; he was merely “talking tough” because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just “trying to sound bigger than he really was.” Defense counsel urged the jury to find defendant’s statements unworthy of belief because defendant was frightened and “puffing.” In an effort to deflect the jury’s attention from defendant’s admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant’s confession to the [charged] homicide. In other words, extracting defendant’s admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury’s attention on defendant’s admissions of guilt. People v Anderson, 2018 NY Slip Op 02105, Fourth Dept 3-23-18

CRIMINAL LAW (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/UNCHARGED CRIMES (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/PROPENSITY EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (OVERRULING PRECEDENT) (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a hearing on his motion to withdraw his guilty plea based upon the People’s failure to disclose the autopsy and toxicology reports relating to the two persons on a motorcycle who died after colliding with defendant’s truck. The reports indicated high blood alcohol levels. The Fourth Department noted that the reports constituted Brady material and held that a defendant does not waive a Brady violation by pleading guilty. Prior Fourth Department decisions to the contrary are no longer to be followed:

… [W]e reject the People’s contention that defendant forfeited his right to raise the alleged Brady violation by pleading guilty … . Brady is premised upon considerations of fairness and due process … , and we conclude that it would undermine the prosecutor’s Brady obligations if a defendant is deemed to have forfeited his or her right to raise an alleged Brady violation by entering a plea without the knowledge that the People possessed exculpatory evidence… . To the extent that our prior decisions hold that a defendant, by pleading guilty, forfeits the right to raise an alleged Brady violation (see e.g. People v Brockway, 148 AD3d 1815, 1816 [4th Dept 2017]; People v Chant, 140 AD3d 1645, 1648 [4th Dept 2016], lv denied 28 NY3d 970 [2016]; People v Chinn, 104 AD3d 1167, 1168 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]), they are no longer to be followed. …

We reject the People’s contention that the reports do not contain exculpatory material and that they were thus under no obligation to disclose them. Rather, we agree with defendant that evidence of the motorcycle operator’s intoxication is relevant with respect to the cause of the fatal accident and defendant’s culpability therefor and, here, the toxicology report states that two blood samples obtained from the motorcycle operator indicated blood alcohol concentrations of .081 and .098. Moreover, the exculpatory value of that evidence is enhanced by defendant’s initial account of the accident to State Police officers at the scene, wherein defendant asserted that the accident occurred when the motorcycle was passing another vehicle and suddenly appeared “right in front of him.” People v Wilson, 2018 NY Slip Op 02106, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/BRADY MATERIAL  (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (BRADY VIOLATION DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))

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HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on defendant’s motion to vacate his conviction, even though the issues were raised or could have been raised in a prior motion to vacate. The defendant presented evidence that defendant’s cell phone was pinged, not defendant’s girlfriend’s cell phone. Therefore defendant had standing to challenge the pinging of the cell phone. The defendant’s motion raised the issue whether a police officer lied when he testified the girlfriend’s cell phone was pinged, and whether evidence that the girlfriend’s phone was broken at the relevant time (presented to the grand jury) was withheld from the defendant:

… [D]efendant submitted police reports wherein the officer who had testified at the suppression hearing (testifying officer) stated that law enforcement officers were “pinging” a phone that belonged to defendant. Defendant further submitted affidavits from the minor [his girlfriend] and her grandmother, who had sought the aid of law enforcement, indicating that the minor’s phone had broken days before the police action and that they had informed the testifying officer and prosecutor of that fact either the day on which the police pinged the cell phone or, at the very least, at some date before the suppression hearing. Indeed, the minor averred that she had testified before the grand jury that her phone had broken and that defendant’s cell phone was the only phone that she and defendant had used during the relevant time period. Defendant contends that the minor’s grand jury testimony constituted exculpatory evidence that was not disclosed to the defense despite a specific request therefor.

It is well settled that prosecutors have the duty “not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness”… . Defendant has submitted credible documentary evidence establishing that the testifying officer’s testimony at the suppression hearing was false and that the prosecutor knew or should have known that the testimony was false … . Moreover, defendant has submitted credible documentary evidence establishing that the prosecutor failed to disclose material, exculpatory evidence … . People v Reed, 2018 NY Slip Op 02068, Fourth Dept 3-23-18

CRIMINAL LAW (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/FALSE TESTIMONY (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/POLICE OFFICERS (CRIMINAL LAW, FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/PROSECUTORS (FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))

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DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

The Fourth Department determined Supreme Court should not have required defendant to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing:

We … agree with defendant that the court erred in requiring him to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing … . Contrary to the People’s contention, the court’s error cannot be deemed harmless, inasmuch as the evidence apart from the DNA evidence is not overwhelming, and there is a reasonable possibility that the error contributed to the conviction … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings on the People’s motion following the assignment of counsel to represent defendant thereon. People v Pressley, 2018 NY Slip Op 02114, Fourth Dept 3-23-18

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, BUCCAL SWAB, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/BUCCAL SWAB (CRIMINAL LAW, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/DNA (CRIMINAL LAW, BUCCAL SWAB, ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))

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FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP).

The Court of Appeals determined the trial court properly ordered a Frye hearing in this strangulation/drowning murder case. The court further found that testimony about an argument between defendant and the victim a month before the murder, in which the defendant threatened to kill the victim, was double hearsay and was not admissible under any hearsay exception. The error was deemed harmless. The Court explained the criteria for ordering a Frye hearing:

Under the Frye standard, expert testimony is admissible only if a scientific “principle or procedure has gained general acceptance’ in its specified field” … . The process is meant to assess “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” … . Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted.

“The Frye inquiry is separate and distinct from the admissibility question applied to all evidence — whether there is a proper foundation — to determine whether the accepted methods were appropriately employed in a particular case” … . The proper procedure for addressing concerns about foundation can include an in limine hearing where the trial court determines whether ” there is simply too great an analytical gap between the data and the opinion proffered'” … . The question is whether the expert’s opinion sufficiently relates to existing data or “is connected to existing data only by the ipse dixit of the expert” … .

To the extent that the trial court improperly employed the Frye procedure to rule on the foundation of the defense expert’s testimony, any such error was harmless. People v Brooks, 2018 NY Slip Op 01956, CtApp 3-22-18

CRIMINAL LAW (EVIDENCE, FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/EVIDENCE (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/FRYE HEARING (CRIMINAL LAW,  FRYE HEARING PROPERLY ORDERED, CRITERIA EXPLAINED, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))/HEARSAY (CRIMINAL LAW, DOUBLE HEARSAY ABOUT PRIOR THREAT TO KILL SHOULD NOT HAVE BEEN ADMITTED, ERROR HARMLESS (CT APP))

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REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, reversing the appellate division, over a two-judge dissenting opinion, determined the trial court properly refused to instruct the jury on the justification defense. The dissent laid out the facts. At the time of the shooting defendant (Sanchez), who had just been beaten up, and defendant’s friends were confronted by several people who apparently had a knife and broken bottles. Although the defendant had retrieved a gun from a car and returned to the confrontation, it was defendant’s friend who took the gun and fired:

Viewing the evidence in the light most favorable to defendant … , the trial court properly declined to charge the jury on the justification defense because, even assuming that the jury could rationally find that defendant subjectively believed he had been threatened with the imminent use of deadly physical force, “the jury could not rationally conclude that his reactions were those of a reasonable [person] acting in self-defense” … . Further, on this record, there was no reasonable view of the evidence that defendant could not safely retreat at the time that deadly physical force was used … .

From the dissent:

Lurking somewhere beneath the majority’s opinion is the thought that you mustn’t bring a gun to a knife fight. We should keep in mind that, although there is no evidence that the group threatening Mr. Sanchez and his friends was armed with guns, courts of this state have held that the threat of deadly force may exist when a group of people attacking an individual is not armed at all … or when, in a one-on-one altercation, an unarmed victim “grabs” at a defendant’s gun … . Courts have also characterized a variety of items as dangerous instruments which, if used as part of a real or threatened attack, might justify the use of deadly force … . People v Sanchez, 2018 NY Slip Op 01957, CtApp 3-22-18

CRIMINAL LAW (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/EVIDENCE (CRIMINAL LAW, (JUSTIFICATION DEFENSE, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))/JUSTIFICATION DEFENSE (CRIMINAL LAW, REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD THAT THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE JUSTIFICATION DEFENSE, STRONG TWO-JUDGE DISSENT (CT APP))

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FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT).

The Fourth Department, annulling the respondent-college’s determination and expunging the petitioner-student’s record, determined the finding that the petitioner had nonconsensual sex with another student was not supported by substantial evidence:

Respondent sanctioned petitioner by placing him on persona non grata status, barring him from the college campus, and making a notation of a disciplinary violation on petitioner’s academic transcript. This Court may review whether “the determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence” … . “Substantial evidence” is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… . We conclude that respondent’s determination that the complainant lacked the ability to consent because of her incapacitation is not supported by substantial evidence. The complainant’s testimony at the disciplinary hearing contradicted her version with respect to the sequence of events made in her statement to the Buffalo Police Department, which statement was the most contemporaneous to the incident. Moreover, the affidavit and testimony of the witness who was with the complainant the morning following the incident was consistent with the complainant’s earlier version of the sequence of events, which establishes that she could not have been incapacitated at the time of the incident. Thus, considering the record as a whole, respondent’s determination is not supported by substantial evidence and must be annulled … . Matter of West v State Univ. of N.Y. at Buffalo, 2018 NY Slip Op 01839, Fourth Dept 3-16-18

EDUCATION-SCHOOL LAW (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/COLLEGES AND UNIVERSITIES (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/SEXUAL MISCONDUCT (COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/DISCIPLINARY PROCEEDINGS (COLLEGES AND UNIVERSITIES) (FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/ADMINISTRATIVE LAW (COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))/EVIDENCE (ADMINISTRATIVE LAW, COLLEGES AND UNIVERSITIES, FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT))

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TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined: (1) the court erred when ii refused to reopen the proof after a video played for the first time during summation demonstrated defendant’s estranged wife, the alleged victim, had apparently not testified truthfully; and (2) defense counsel was ineffective for failing to view the entire video before trial. The video was from a convenience store. The estranged wife testified that the defendant fired shots at her as she was driving two minutes after leaving the convenience store. She testified she was driving a green Lexus with one child when the shots were fired. The video apparently showed her leaving the convenience store in a blue-gray Nissan with two children:

… [T]he decision to permit a party to reopen the case, at least prior to its submission to the jury, lies within the discretion of the trial court … . A trial court’s discretion to preclude evidence is nonetheless “circumscribed by the defendant’s constitutional rights to present a defense and confront his [or her] accusers” … , because “[a] defendant always has the constitutional right to present a complete defense”… and “to put before a jury evidence that might influence the determination of guilt” … . …

Here, defendant’s arguments in support of his motion to reopen the proof implicated the constitutional aspects of his contention raised on appeal, i.e., that reopening the proof was necessary to afford him a fair trial and his right to present a defense to the allegations upon which he was being prosecuted. To the extent that defendant did not preserve the constitutional aspects of his contention for our review by failing to raise them sufficiently before the trial court … , we exercise our power to review those aspects of his contention as a matter of discretion in the interest of justice … . People v Owens, 2018 NY Slip Op 01712, Fourth Dept 3-16-18

CRIMINAL LAW (TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, REOPEN PROOF, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, (TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))/TRIALS (CRIMINAL LAW, REOPEN PROOF, TRIAL JUDGE SHOULD HAVE ALLOWED DEFENSE COUNSEL TO REOPEN THE PROOF AFTER A VIDEO PLAYED DURING SUMMATION DEMONSTRATED THE ALLEGED VICTIM HAD NOT TESTIFIED TRUTHFULLY, DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO VIEW THE ENTIRE VIDEO PRIOR TO TRIAL (FOURTH DEPT))

, ,

EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction in the interest of justice, determined the expert evidence on child sexual abuse accommodation syndrome (CSAAS) was improperly admitted to prove the crime took place, depriving defendant of a fair trial:

… [W]e acknowledge that expert testimony concerning CSAAS and similar psychological syndromes has long been admissible to explain the behavior of a victim that might be puzzling to a jury … . Here, however, the expert witness did not confine her testimony to “educat[ing] the jury on a scientifically recognized pattern of secrecy, helplessness, entrapment [and] accommodation’ experienced by a child victim” … . Instead, the expert explained “grooming” and other behaviors associated with perpetrators of child sexual abuse. Her detailed description of a typical perpetrator’s modus operandi, moreover, closely tracked the victim’s testimony concerning defendant’s conduct, and the prosecutor on summation urged the jury to conclude that defendant’s interactions with the victim fit the description of a typical perpetrator’s conduct as described by the expert. In sum, that part of the testimony of the expert describing the conduct of a typical perpetrator was not directed at explaining the victim’s behavior. Rather, it was presented “for the purpose of proving that the [victim] was sexually abused” … , which purpose was reinforced by the prosecutor’s summation. People v Ruiz, 2018 NY Slip Op 01722, Fourth Dept 3-16-18

CRIMINAL LAW (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EXPERT OPINION (CRIMINAL LAW, (EXPERT EVIDENCE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) WAS IMPROPERLY ADMITTED TO SHOW THE VICTIM WAS ABUSED, CONVICTIONS REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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