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

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

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

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

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

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

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

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

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

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

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EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction for possession of a controlled substance, determined the circumstantial evidence of constructive possession of the drugs found in an apartment was legally insufficient:​

Although defendant was present in the apartment at the time when the police executed the search warrant, “no evidence was presented to establish that defendant was an occupant of the apartment or that [she] regularly frequented it”… . The People relied primarily on the trial testimony of a police investigator, who testified that defendant was listed in the records management system of the Utica Police Department (UPD) as living at the apartment. The investigator acknowledged on cross-examination, however, that he did not know how the UPD obtained that information and that the information in the records management system is not always current or even accurate. The investigator also testified that he surveilled the building in which the apartment was located “hundreds” of times over the course of a three-week investigation, and that he observed defendant “at that location” only twice. Although the investigator testified that “typical women’s clothing” was found in the apartment, he failed to offer specifics except for three pairs of footwear, which he believed might fit defendant. By contrast, he testified in detail about men’s underwear and men’s deodorant found in a dresser drawer, men’s work boots piled near the dresser, and men’s sweatshirts hanging over a couch. Photographs of the clothing were received in evidence, and those photographs did not depict any “typical women’s clothing,” with the possible exception of one or two pairs of footwear. People v Williams, 2018 NY Slip Op 04173, Fourth Dept 6-8-18

CRIMINAL LAW (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, (EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT))

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BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the claimant (wife of the decedent worker who died of cardiac arrest) was not notified the board would consider a medical file relating to a prior injury:

Here, the Board relied on medical records apparently contained in the case file for a separate claim filed by decedent based on a November 2014 fall at work. … The employer did not request that the Board rely on those 2014 records, nor did it adhere to the procedure for introducing additional evidence into the administrative appeal that was not before the Workers’ Compensation Law Judge… . The Board’s rule provides that, if that procedure is not followed, the Board “will not” consider such new evidence… .

Claimant was prejudiced because she was not on notice — until she received the Board decision — that the Board would rely on documents from another case file. The employer argues that the referenced medical reports cannot be objectionable because they accurately reflect the treatment rendered, but we cannot verify that without reviewing those reports. The employer further argues that no response to the medical records would change the strength of either side’s argument, but that proposition is mere speculation. Either party may have chosen to submit additional medical records reflecting on decedent’s medical treatment from November 2014 until his death in July 2015 had the parties been on notice that this period of treatment would be at issue. Matter of Kaplan v New York City Tr. Auth., 2018 NY Slip Op 04068, Third Dept 6-7-18

WORKERS’ COMPENSATION LAW (BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))/EVIDENCE (WORKERS’ COMPENSATION LAW, BOARD CONSIDERED MEDICAL FILE FROM A PRIOR INJURY WITHOUT NOTICE TO CLAIMANT, DENIAL OF CLAIM REVERSED (THIRD DEPT))

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CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT).

The Third Department, in a custody proceeding, determined out of court statements by a child about abuse by the stepfather were properly deemed admissible because they were sufficiently corroborated:

… [T]he older child’s out-of-court statements concerning the sexual abuse perpetrated upon her by the stepfather did not constitute impermissible hearsay. Where, as here, a child’s out-of-court statements relate to abuse or neglect, such statements are admissible in a Family Ct Act article 6 proceeding so long as they are sufficiently corroborated … . “The relatively low degree of required corroboration may be provided by ‘[a]ny other evidence tending to support the reliability of the [child’s] statements'”… . While the mere repetition of an accusation does not, by itself, provide sufficient corroboration … , “some degree of corroboration can be found in the consistency of the out-of-court repetitions” … . Proof of the abuse of another child can also provide the requisite corroboration … . The sufficiency and “reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record” … .​

The maternal aunt testified that, while babysitting the children … , the older child disclosed that the stepfather comes into her room in the middle of the night and “touches in [her] butt.” The child also revealed the sexual abuse to the father, specifically stating that, while she was locked in her room, the stepfather would pull back the covers and reach into her underwear. The maternal aunt described changes in the older child’s behavior that coincided with the time frame in which the alleged sexual abuse occurred, explaining that the child, who used to be happy and playful, became “unsociable” and “scared,” as if something was bothering her. A therapist whom the older child began seeing following the disclosures testified that the child was “very distant,” “detached” and “withdrawn” during their interactions and opined that the child exhibited behavior that was consistent with that of a four-year-old who may have experienced trauma. Further, a woman whose father had previously lived with the stepfather provided detailed and graphic testimony of her own sexual abuse at the hands of the stepfather when she was a young girl. During interviews with the State Police, both this woman as well as her sister confirmed that they had been sexually abused by the stepfather when they were younger. In view of this proof, and according due deference to Family Court’s factual findings and credibility assessments, we conclude that the older child’s statements were adequately corroborated … . Matter of Cory O. v Katie P., 2018 NY Slip Op 04046, Third Dept 6-7-18

FAMILY LAW (EVIDENCE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/HEARSAY (FAMILY LAW, ABUSE, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/CORROBORATION (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))

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DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT).

The Third Department withheld decision and directed the People to provide defense counsel with certain trial exhibits counsel was unable to access prior to perfecting the appeal:

Defendant contends, among other things, that the People deprived him of an opportunity to develop an effective argument on appeal by failing to provide him with certain video and photographic exhibits that were introduced into evidence at trial in a format that he could readily view … . Specifically, defendant avers that, although the People provided him with copies of 14 DVDs introduced as exhibits at trial, he was unable to view the contents of exhibit Nos. 9, 10, 11, 12, 13, 14, 18 and 108.

Defendant has a “fundamental right to appellate review of a criminal conviction” … and, to that end, it is well-settled that the People “‘must provide a record of trial sufficient to enable a defendant to present reviewable issues on appeal'” … . Here, there is no dispute that the subject exhibits were admitted into evidence, were viewed by the juries at both of defendant’s trials and are now a part of the record from which defendant may prepare his appellate arguments and this Court may conduct meaningful appellate review. Based upon our own efforts to view these exhibits, we find defendant’s observation to have merit. People v Haggray, 2018 NY Slip Op 04036, Third Dept 6-7-18

CRIMINAL LAW DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))/APPEALS (CRIMINAL LAW, DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, APPEALS, DECISION WITHHELD AND PEOPLE DIRECTED TO PROVIDE DEFENSE APPELLATE COUNSEL WITH TRIAL EXHIBITS COUNSEL WAS UNABLE TO ACCESS (THIRD DEPT))

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DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT).

The Third Department, in an appeal by the People of a suppression ruling, determined the suppression motion should have been denied in its entirety. Defendant never made a motion to suppress information taken from his cell phone. Yet County Court apparently speculated that the police must have searched defendant’s cell phone before the Miranda warnings were given:

… [T]he detectives approached defendant outside his place of employment and asked him to accompany them to the police station. Defendant voluntarily agreed and they drove him to the station without placing him in handcuffs. The videotaped statement indicates that, during the ride and before entering the interview room, they engaged in general conversation regarding defendant’s background, education, employment and family life, but did not discuss the criminal investigation. Inside the interview room, defendant was initially not restrained. The detectives asked if he would like water and provided him a drink. Later, they obtained a cigarette and allowed him to smoke it, and permitted him to make a phone call. At the beginning of the conversation in the interview room, a detective administered Miranda warnings and defendant stated that he was willing to talk to them and answer questions. Defendant was not threatened or coerced during the interview.

County Court did not rely on these facts, but instead focused on what it deemed “the troubling and unavoidable issue that, prior to entering the interview room and prior to Miranda warnings, . . . defendant’s phone had already been seized by the police.” The court highlighted the People’s failure at the hearing to address this seizure of the phone even though, as discussed above, the People were not on notice that anything related to the phone was being challenged by defendant. The court chastised the People for failing to acknowledge or explain “the circumstances under which . . . defendant’s phone was seized and potentially searched, pre-Miranda.” The record contains no factual support for, and actually belies, the court’s speculative assertion that the phone was searched before Miranda warnings were administered, because the video shows that, when the detective eventually brought the phone into the interview room and obtained defendant’s consent to look at some of its features, defendant had to unlock the phone with either a password or swiping pattern. People v Moore, 2018 NY Slip Op 04042, Third Dept 6-7-18

CRIMINAL LAW (SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/APPEALS (CRIMINAL LAW, SUPPRESSION, PEOPLE’S APPEAL,  DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))/SEARCH AND SEIZURE (SUPPRESSION, DEFENDANT DID NOT MOVE TO SUPPRESS INFORMATION OBTAINED FROM HIS CELL PHONE, COUNTY COURT ERRED IN SUPPRESSING THAT EVIDENCE, SUPPRESSION MOTION SHOULD HAVE BEEN DENIED (THIRD DEPT))

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UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT).

The Third Department, over a partial two-justice dissent, determined the evidence did not support the serious physical injury element of assault first and reduced the conviction to attempted assault first. The victim was shot in the leg. The dissenters argued the serious physical injury element had been proven. The majority focused on weaknesses of the evidence of serious physical injury and found it deficient under a weight of the evidence analysis:

… [T]he weight of the evidence does not support a finding that the victim sustained a serious physical injury. Serious physical injury is defined as a “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” … . As to whether the victim sustained a physical injury that created a substantial risk of death, the victim testified that, following the shooting, he was in “miraculous pain,” he underwent two surgeries, his tibia bone was “shattered” and pins were inserted to hold the bones in place. The pins, however, were removed four months after their insertion, at which point the pain subsided. The victim then wore a cast on his leg for 1½ months. Although the victim’s injuries are by no means trivial, they fall short of constituting injuries that create a substantial risk of death. There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening … .

* * * … [A]lthough the victim’s testimony and the photographs show a significant injury immediately following the shooting, there was no corresponding proof regarding its long-term effects … . …​

As to whether the victim sustained a serious and protracted disfigurement, we note that the victim showed his scar to the jury. There was, however, no contemporaneous description of what the jury saw to demonstrate the extent of such scarring, nor can such extent be discerned from the photographs entered into evidence … . People v Marshall, 2018 NY Slip Op 04038, Third Dept 6-7-18

CRIMINAL LAW (ASSAULT, SERIOUS PHYSICAL INJURY, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/ASSAULT (SERIOUS PHYSICAL INJURY, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/SERIOUS PHYSICAL INJURY (ASSAULT, UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))/WEIGHT OF THE EVIDENCE ( UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE MAJORITY DETERMINED THE EVIDENCE OF SERIOUS PHYSICAL INJURY IN THIS ASSAULT FIRST PROSECUTION WAS INSUFFICIENT (THIRD DEPT))

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EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT).

The First Department, affirming the denial of summary judgment and the denial of the motion to set aside the verdict in this probate action, determined evidence included in a settlement letter and hearsay relied upon an expert witness were properly admitted. The court further found that the missing witness jury instruction for the decedent’s treating doctors was proper, but the missing witness jury instruction for the attorney who drafted the will, who lives in Florida, was (harmless) error. The jury revoked preliminary letters:

Although CPLR 4547 precludes presentation of evidence of settlement negotiations, it expressly exempts exclusion of evidence, which is otherwise discoverable, solely because such evidence was presented during the course of settlement negotiations.

The list of paintings that was signed by proponent as part of the settlement conference in Shanghai was admitted into evidence because it included a factual admission that proponent possessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible, notwithstanding that the factual statement was contained in a settlement document … . …

The court’s missing witness charge with respect to the attorney, Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and was unavailable to proponents … . …

A psychiatrist’s opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is “of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on [] trial” … . The court properly permitted the expert to testify, despite his conversations with objectant, since she was subject to full cross-examination at trial. Matter of Chi-ChuanFile Wang, 2018 NY Slip Op 04090, First Dept 6-7-18

​CIVIL PROCEDURE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EVIDENCE (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/TRUSTS AND ESTATES (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/SETTLEMENT NEGOTIATIONS  (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/CPLR 4547 (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/JURY INSTRUCTIONS (MISSING WITNESSES, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/MISSING WITNESS INSTRUCTION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/EXPERT OPINION (EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))/HEARSAY (EXPERT OPINION, EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT))

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PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ motion for a continuance to allow their expert to testify in this medical malpractice action should have been granted.

When the expert … arrived in the late morning of December 1, 2016, he did not have his original file with him. According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. …

On December 2, 2016, plaintiffs’ expert did not appear. …

We conclude that plaintiffs’ motion for a continuance should have been granted … . The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs … . Normandin v Bell, 2018 NY Slip Op 04053, Third Dept 6-7-18

​CIVIL PROCEDURE (CONTINUANCE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/MEDICAL MALPRACTICE (EXPERT WITNESS, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CONTINUANCE (PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT))

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