You are here: / Evidence
, ,

SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP).

The Court of Appeals affirmed the Appellate Division’s determination that suppression of all evidence was required in this traffic stop case. Judge Garcia wrote an extensive dissenting opinion questioning the continued viability of the DeBour criteria for the analysis of encounters with the police. The dissenting opinion is well-worth reading but is not summarized here. The majority noted that a suppression ruling that is not reduced to writing is appealable:

The Appellate Division did not err in rejecting the People’s argument that defendant could not challenge on appeal a suppression ruling that was not reduced to writing. Record evidence supports the Appellate Division’s suppression determination and, accordingly, that determination is beyond this Court’s further review. To the extent the dissent questions the continued utility of the DeBour paradigm for analyzing encounters between police and members of the public (People v DeBour, 40 NY2d 210 [1976]) and suggests that People v Garcia (20 NY3d 317 [2012]) was wrongly decided, those questions are not presented here where the parties litigated this case within the framework of our existing precedent. People v Gates, 2018 NY Slip Op 03096, CtApp 5-1-18

​CRIMINAL LAW (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/EVIDENCE (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, ORAL RULINGS, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SUPPRESSION (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SEARCH AND SEIZURE (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/DE BOUR (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))

, , ,

CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict in this medical malpractice, wrongful death case should not have been granted. Decedent was suffering from a life-threatening but eminently treatable condition (unstable angina) when he saw the defendant doctor.  Decedent died three days later. The doctor testified decedent had refused to go to the hospital. Credibility issues were raised about the substance of the defendant’s testimony. The Fourth Department noted that credibility issues are for the jury and should not be considered on a motion to set aside a verdict:

Defendant testified at trial that he recognized the life-threatening condition and conveyed to decedent “that he should go to the hospital” (emphasis added). Defendant further testified that he knew that “there needed to be more testing done,” but that decedent “adamant[ly]” “refused” to go to the hospital and “didn’t give [defendant] a good reason why.” Defendant’s notes, however, do not reflect any urgency. Indeed, the only notation made by defendant concerning that conversation was, “Discussed admit on Fri of holiday [weekend], declined.”

Moreover, despite the fact that defendant claimed to have recognized the severity of decedent’s condition, he did not set up any follow-up appointment with a cardiologist for over five days and admitted that he was “surprised” to learn of decedent’s death three days after his appointment with decedent.

As with most wrongful death cases, this case is complicated by the death of decedent, the only person who could have directly refuted defendant’s factual testimony. The Noseworthy doctrine thus provides that in a wrongful death case, such as this, “a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” … . The doctrine “applies only to such factual testimony as the decedent might have testified to, had [he or she] lived’ ” … , and the “lesser degree of proof pertains to the weight which the circumstantial evidence may be afforded by the jury, not to the standard of proof the plaintiff must meet” … .

Here, the only direct testimony regarding whether defendant recognized the severity of decedent’s condition and explained that to him “came from defendant . . . and, implicit in the court’s findings is that his testimony was credible. Issues of credibility, however, are for the jury” … . We agree with plaintiff that there are issues with respect to defendant’s credibility, and those issues should not have been determined by the court. In our view, this is not a case in which there is “absolutely no showing of facts from which negligence may be inferred” … , and we thus conclude that the court erred in granting defendant’s motion for a directed verdict. Bolin v Goodman, 2018 NY Slip Op 02920, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/MEDICAL MALPRACTICE (CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH,  CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/WRONGFUL DEATH (NOSEWORTHY DOCTRINE, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/NOSEWORTHY DOCTRINE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))

, ,

THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).

The Fourth Department determined a County Court judge did not have the authority to grant the defense request for a videotape of an interview of the child (alleged) victim in this sexual offense case. The child was interviewed by a private child advocacy group (Bivona). The only ground upon which the court could grant the request was that the videotape constituted exculpatory (Brady) material. However, the judge did not conduct an in camera review of the tape, and therefore had no basis for determining the tape was exculpatory. The petitioner here (the DA) brought this Article 78 proceeding to prohibit the respondent (the judge) from allowing defense counsel to review the tape:

… [R]espondent issued a written order acknowledging that the video recording did not constitute Rosario material and that he thus lacked any authority to order its disclosure on that ground … . Instead, respondent concluded that the video recording could potentially contain exculpatory evidence, which petitioner would be obligated to disclose under Brady v Maryland … . Respondent determined that neither he nor the “untrained prosecutor” could make the determination whether the person interviewing the child “employ[ed] suggestive interrogation techniques.” Rather, “only defense counsel, with full knowledge of the defendant’s case[, could] make the proper assessment.” As a result, respondent again ordered petitioner to permit defendant’s attorney to inspect the video recording. * * *

… [A] prosecutor possesses some discretion in deciding what evidence should be disclosed to the defense … but, “where a request [for Brady material] is made and there is some basis’ for believing that the prosecutor may be in possession of potentially exculpatory material, deference to the prosecutor’s discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court’ “… . Nevertheless, “[d]iscovery which is unavailable pursuant to the statute may not be ordered based on principles of due process because there is no general constitutional right to discovery in criminal cases’ “… .

Here, there has been no determination that the video recording contains exculpatory evidence, and thus defendant has no right to disclosure thereof. Inasmuch as respondent required petitioner to disclose evidence before determining whether defendant is entitled to such disclosure, we conclude that respondent acted in excess of his authority and that a writ of prohibition is the appropriate remedy … . Matter of Doorley v Castro, 2018 NY Slip Op 02939, Fourth Dept 4-27-18

CRIMINAL LAW (EVIDENCE, JUDGES, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/JUDGES (CRIMINAL LAW, EVIDENCE, PROHIBITION,  THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/PROHIBITION (JUDGES, CRIMINAL LAW, EVIDENCE, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))

, ,

THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that the trial judge reserved decision on defendant’s motion for a trial order of dismissal on the resisting arrest charge. Because the judge never ruled on the motion, the matter was remitted for a ruling:

Defendant also challenges the sufficiency of the evidence with respect to the conviction of resisting arrest. We note that Supreme Court denied defendant’s motion for a trial order of dismissal with respect to the charges of burglary in the third degree and petit larceny but reserved decision with respect to the resisting arrest charge. The matter was submitted to the jury, which returned a verdict convicting defendant of all charges. The court never ruled on the remainder of the motion. Thus, we do not address defendant’s contention with respect to the resisting arrest charge because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof’ ” … . We therefore hold the case in appeal No. 1, reserve decision, and remit the matter to Supreme Court for a ruling on the remainder of the motion. People v Hymes, 2018 NY Slip Op 02942, Fourth Dept 4-27-18

​CRIMINAL LAW (TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))

,

IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

The Fourth Department determined defendant motion to vacate his conviction should not have been denied without a hearing. A prosecution witness recanted her trial testimony:

The motion was based on the affidavit of a prosecution witness who recanted her trial testimony that defendant admitted to her that he started a certain house fire. That testimony formed the basis for defendant’s conviction of arson in the second degree. Notably, the witness averred that, “Before the trial[,] the police investigator told me if I testified on [defendant’s] behalf they would take my daughter away. I am still concerned about this.” The People did not submit an opposing affidavit from any of the police officers involved in the case. The court denied the motion without a hearing upon finding that the witness’s recantation was unreliable.

We conclude based on the totality of the circumstances that the court erred in denying that part of the motion with respect to the conviction of arson in the second degree without first holding a hearing … . The witness’s “trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant” for setting the fire at issue in the arson in the second degree count … .  People v Grant, 2018 NY Slip Op 02951, Fourth Dept 4-27-18

​CRIMINAL LAW (VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/ EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/VACATE CONVICTION, MOTION TO  (RECANTED TESTIMONY, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/RECANTED TESTIMONY (VACATE CONVICTION,  IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))

,

JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the sentencing court did not take certain mitigating factors into consideration and indicated defendant was sentenced harshly because he had decided to go to trial:

Here, the indictment charged defendant with harassment in the second degree on the ground that … he slapped the complainant with the intent to harass, annoy, or alarm her. Nevertheless, the court instructed the jury that it could find him guilty if he shoved her or subjected her to other forms of physical contact. The evidence at trial could have established either theory. Therefore, that part of the judgment convicting defendant of harassment in the second degree must be reversed … . …

… [T]he sentence imposed for rape in the first degree is unduly harsh and severe. The alleged incident occurred in the context of an intimate relationship that lasted several months between two otherwise consenting adults who were close in age. The complainant had the opportunity to report the incident to the police immediately after it happened but chose not to do so. In the recorded conversations between defendant and the complainant, which occurred two to three months after the incident, the complainant repeatedly expressed satisfaction with her relationship, and a willingness to use the criminal justice system to gain the upper hand in it. We note that defendant’s history of contacts with the criminal justice system is not extensive, and thus it does not weigh heavily against him.

The record does not indicate that the sentencing court considered any of the above substantial mitigating factors in imposing the sentence. To the contrary, the court expressed only that it wished to impose a sentence for rape in the first degree in excess of the offers made during the plea bargaining process. Indeed, the sentence of 18 years of incarceration is double that of the most recent plea offer. It is well established that a defendant may not be punished for exercising his constitutional right to a trial … . Although a sentence after trial usually will be harsher than a sentence accompanying a prior plea offer … , a defendant’s refusal to plead guilty does not absolve the court of its responsibility to consider appropriate sentencing factors … . People v Morales, 2018 NY Slip Op 02958, Fourth Dept 4-27-18

​CRIMINAL LAW (JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/HARSH AND SEVERE (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))

,

A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT).

The Fourth Department noted that defendant had requested a restitution hearing and therefore the court was required to hold one. Defendant’s conviction in her first trial was reversed and a new trial was ordered. Even though a hearing had been held in the first proceeding, she was entitled to a hearing after the second trial:

… [T]he court erred in denying her request for a restitution hearing. It is well settled that where, as here, a defendant requests a restitution hearing, Penal Law § 60.27 (2) requires that one be provided, “irrespective of the level of evidence in the record” … . Once we reversed the prior judgment and granted defendant a new trial, she was “restored to the status obtaining before the initial trial” … and, as a result, it is irrelevant that a hearing was held following the first trial. People v Case, 2018 NY Slip Op 02995, Fourth Dept 4-27-18

​CRIMINAL LAW (A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, RESTITUTION, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))

,

VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she swerved to the left, apparently striking plaintiff at that point:

As a general matter, a motorist has a duty to maintain a proper lookout under the driving circumstances presented and to maintain a reasonably safe rate of speed… . A motorist is further “required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound the horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway” … . These principles in mind, defendant testified that she first observed three people at the edge of Route 9N in front of the Algonquin restaurant heading across the road toward the parking lot on the west side. She estimated being “[p]robably about a football field” away when she first saw the pedestrians. She also estimated her speed at 30 miles per hour and acknowledged that she did not slow down. Explaining how the accident occurred, defendant testified as follows: “As I got closer to the people, who I thought were crossing the road, they were not moving and I knew that if I continued I would hit them so I severely twisted my wheel of the car thinking I could get around them.” She stated that, as she turned her wheel to the right, the pedestrians were on her left. She did not decrease her speed prior to swerving and could not remember sounding her horn.

Defendant’s version of the accident places Blanchard in the roadway, while Blanchard testified that she was in the west shoulder area at the time of impact. Even accepting defendant’s version, her testimony confirms that Blanchard was within her view for a distance of about 100 yards and defendant was aware that Blanchard was crossing the road, and yet, defendant did not slow down or sound her horn. Defendant’s own account confirms that she failed to take any evasive action until the last moment. In our view, defendant’s failure to take reasonable measures to avoid hitting Blanchard gives rise to some degree of comparative fault for this accident. As the jury’s verdict exonerating defendant could not have been reached on any fair interpretation of this evidence, a new trial is in order. Blanchard v Chambers, 2018 NY Slip Op 02852, Third Dept 4-26-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))

,

THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, reversing County Court, determined that prison personnel violated defendant’s Fourth Amendment rights in the manner a body cavity search was conducted. A packet of cocaine was removed from defendant’s buttocks-area during a strip search. Apparently the package could be seen but did not fall out on its own:

Here, there was probable cause, but no showing or claim of an emergency … . Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant … . Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner… . Also, the record is unclear as to whether [the officer] was wearing gloves. Under the second Bell factor [Bell v Wolfish, 441 US 520], the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. People v Holton, 2018 NY Slip Op 02836, Third Deptp 4-26-18

​CRIMINAL LAW (BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/BODY CAVITY SEARCH (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))

,

DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the evidence was not sufficient to support the “drug factory” jury instruction:

The court’s jury instruction on the drug factory presumption of Penal Law § 220.25(2) was improper. The statutory presumption “does not require that mixing or compounding paraphernalia be found on the premises” … . However, where, as here, the quantity of drugs found does not show “circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale” … , giving the drug factory charge is unwarranted. Here, the officers recovered approximately one gram of crack cocaine divided between 26 “twists.” The fact that a larger bag contained individual twists was not a sufficient basis for the trial court to employ the drug factory presumption … . The presence of an unspecified, untested, white residue on a kitchen counter does not justify the charge, where such is equally consistent with the residue left by household cooking and cleaning products. People v Johnson, 2018 NY Slip Op 02879, First Dept 4-26-18

​CRIMINAL LAW (DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/DRUG FACTORY (CRIMINAL LAW, JURY INSTRUCTIONS, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy