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DOCTOR WHO OPERATED A PILL MILL FOR PERSONS ADDICTED TO OPIOIDS PROPERLY CONVICTED OF MANSLAUGHTER FOR OVERDOSE DEATHS (FIRST DEPT).

The First Department determined defendant, a doctor accused of operation a “pill mill” for persons addicted to opioids and Xanax, was properly convicted of manslaughter in the overdose deaths of two persons to whom he has supplied drugs:

Defendant argues that the manslaughter convictions should be reversed because, as a matter of law, the sale of a controlled substance can never support a homicide charge in the absence of express legislative authorization. He bases this position on a [2nd] Department decision, People v Pinckney (38 AD2d 217 [2nd Dept 1972] … ). * * *

… Nothing in Pinckney suggests that one who provides a controlled substance, whether it be heroin by a street dealer, or opioids by a medical doctor, can never be indicted on a manslaughter charge. Indeed, in People v Cruciani (36 NY2d 304 [1975]), the [Ct.] of Appeals affirmed the second degree manslaughter conviction of the defendant, who injected the victim with heroin, because he knew she was already in a highly intoxicated state. The Cruciani Court distinguished Pinckney, because in the latter case there was not “any proof, as here, of awareness of the ongoing effect of drugs in the victim’s body at the time any self-inflicted injection might have been made, or, beyond the general knowledge of the injuriousness of drug-taking, of a real threat to life. The remoteness of that fatal injection from the fact of sale diffused intent and scienter by possibly unknown or intervening events beyond Pinckney’s control” … .

At bottom, all that was needed for the manslaughter charge to be sustained was for the People to satisfy its elements. That is, that defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [death] [would] occur . . . The risk [being] of such nature and degree that disregard thereof constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation” … .

The question then becomes whether the People presented sufficient evidence to establish that defendant consciously disregarded the risk that Haeg and Rappold would die as a result of his prescribing practices. … People v Stan XuHui Li, 2017 NY Slip Op 08438, First Dept 11-30-17

CRIMINAL LAW (MANSLAUGHTER, PILL MILL, DOCTOR WHO OPERATED A PILL MILL FOR PERSONS ADDICTED TO OPIOIDS PROPERLY CONVICTED OF MANSLAUGHTER FOR OVERDOSE DEATHS (FIRST DEPT))/EVIDENCE (OPIOIDS, PILL MILL, DOCTOR WHO OPERATED A PILL MILL FOR PERSONS ADDICTED TO OPIOIDS PROPERLY CONVICTED OF MANSLAUGHTER FOR OVERDOSE DEATHS (FIRST DEPT))/OPIOIDS (CRIMINAL LAW, MANSLAUGHTER, PILL MILL, DOCTOR WHO OPERATED A PILL MILL FOR PERSONS ADDICTED TO OPIOIDS PROPERLY CONVICTED OF MANSLAUGHTER FOR OVERDOSE DEATHS (FIRST DEPT))/PILL MILL (CRIMINAL LAW, MANSLAUGHTER, PILL MILL, DOCTOR WHO OPERATED A PILL MILL FOR PERSONS ADDICTED TO OPIOIDS PROPERLY CONVICTED OF MANSLAUGHTER FOR OVERDOSE DEATHS (FIRST DEPT))

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PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, determined the prosecution could not use the doctrine of collateral estoppel to fulfill its proof requirements at the grand jury stage. Defendant had been convicted of attempted murder, which included the intent to kill. After the victim died, the People indicted the defendant for murder. The grand jury was told the intent element had already been proven and the grand jury need only consider causation. The Third Department noted the difference between the application of collateral estoppel in civil and criminal cases. From the defendant’s perspective, using the collateral estoppel doctrine in this context violated defendant’s constitutional rights:

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While the People argue that their offensive use of collateral estoppel is fair play, in that had defendant been acquitted of attempted murder, he would defensively rely on collateral estoppel principles to argue against a subsequent murder trial, this analysis overlooks the obvious and critical difference between an accused’s defensive use of this doctrine and a prosecutor’s strategic use of it against an accused. An accused’s defensive invocation of this doctrine implicates and protects constitutional rights — to a jury trial, to present a defense, to due process and to not be placed twice in jeopardy, among others — whereas the People’s affirmative use is for matters of expediency and economy and lacks a constitutional imperative  … . A California intermediate appellate court that confronted this identical issue over 20 years ago similarly concluded that this strategic use of collateral estoppel was inconsistent with due process, noting that “the pursuit of judicial economy and efficiency may never be used to deny a defendant . . . a fair trial,” and that instructing a jury that a murder trial was limited to causation created an impermissible “gravitational pull towards a guilty verdict” … . People v Morrison, 2017 NY Slip Op 08405, Third Dept 11-30-17

CRIMINAL LAW (PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT))/COLLATERAL ESTOPPEL (CRIMINAL LAW, PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, GRAND JURY, COLLATERAL ESTOPPEL, PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT))/GRAND JURY (COLLATERAL ESTOPPEL, EVIDENCE, PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, EVIDENCE, COLLATERAL ESTOPPEL, PROSECUTION CAN NOT USE THE DOCTRINE OF COLLATERAL ESTOPPEL, BASED UPON A PRIOR ATTEMPTED MURDER CONVICTION, TO PROVE INTENT IN A MURDER PROSECUTION STEMMING FROM THE DEATH OF THE SAME VICTIM, EVIDENCE PRESENTED TO THE GRAND JURY INSUFFICIENT, INDICTMENT DISMISSED (THIRD DEPT))

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PAIN AND PRESENCE OF BULLET FRAGMENTS FOUR YEARS AFTER THE SHOOTING WAS SUFFICIENT PROOF OF SERIOUS PHYSICAL INJURY, DISSENT DISAGREED (FIRST DEPT).

The First Department, over a dissent, affirmed the first degree assault convictions. The dissent argued the proof of “serious physical evidence” was not sufficient:

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The element of serious physical injury … required for the assault convictions  … was established by evidence showing that four years after the complainant was struck by a bullet, he still felt pain and the bullet fragments in his leg and could not engage in sports at the same level as before the incident. This proof sufficiently shows a protracted impairment of health or protracted impairment of the function of a bodily organ to support a finding of serious physical injury … . * * *

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From the dissent:

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There is no proof of injury connected to the bullet fragments, nor is there proof that [the victim’s] life was endangered by the presence of the fragments … .Notably, the People’s expert was unable to opine as to whether [the victim] had suffered permanent deficits associated with the injury.

The fact that [the victim] suffered a gunshot wound does not ipso facto establish that he suffered a “serious physical injury” … . People v Garland, 2017 NY Slip Op 08302, First Dept 11-28-17

 

CRIMINAL LAW (PAIN AND PRESENCE OF BULLET FRAGMENTS FOUR YEARS AFTER THE SHOOTING WAS SUFFICIENT PROOF OF SERIOUS PHYSICAL INJURY, DISSENT DISAGREED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, ASSAULT, SERIOUS PHYSICAL INJURY, PAIN AND PRESENCE OF BULLET FRAGMENTS FOUR YEARS AFTER THE SHOOTING WAS SUFFICIENT PROOF OF SERIOUS PHYSICAL INJURY, DISSENT DISAGREED (FIRST DEPT))/ASSAULT (CRIMINAL LAW, SERIOUS PHYSICAL INJURY, PAIN AND PRESENCE OF BULLET FRAGMENTS FOUR YEARS AFTER THE SHOOTING WAS SUFFICIENT PROOF OF SERIOUS PHYSICAL INJURY, DISSENT DISAGREED (FIRST DEPT))/SERIOUS PHYSICAL INJURY (CRIMINAL LAW, ASSAULT, PAIN AND PRESENCE OF BULLET FRAGMENTS FOUR YEARS AFTER THE SHOOTING WAS SUFFICIENT PROOF OF SERIOUS PHYSICAL INJURY, DISSENT DISAGREED (FIRST DEPT))

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PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this traffic accident case should have been granted. Defendants were in the far right lane when plaintiff attempted to turn right from the center lane, crossing in front of defendants:

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[The] evidence demonstrated, prima facie, that the plaintiff violated Vehicle and Traffic Law §§ 1128(a) and 1163, and that defendant driver was free from fault in the happening of the accident … . This evidence also demonstrated, prima facie, that the plaintiff’s actions were the sole proximate cause of the subject accident.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit, which contradicted admissions he made in the certified motor vehicle report, was insufficient to defeat the defendants’ motion for summary judgment because it merely raised what appear to be feigned issues of fact … . Park v Sanchez, 2017 NY Slip Op 08279, Second Dept 11-22-16

 

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE,  PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/EVIDENCE (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT,  PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, PLAINTIFF’S CROSSING IN FRONT OF DEFENDANT DRIVER IN AN ATTEMPT TO MAKE A RIGHT TURN FROM THE CENTER LANE VIOLATED THE VEHICLE AND TRAFFIC LAW AND CONSTITUTED THE SOLE PROXIMATE CAUSE OF THE TRAFFIC ACCIDENT, PLAINTIFF’S OPPOSING PAPERS RAISED ONLY FEIGNED ISSUES OF FACT (SECOND DEPT))

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EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case, determined the record did not support the awarding of sole custody to the maternal grandmother, in this appeal by the parents:

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While we accord considerable deference to Family Court’s credibility assessments and factual findings on appeal, we conclude from our review of the trial testimony, without factoring in the Lincoln hearing, that petitioner failed to meet her threshold burden of establishing extraordinary circumstances. The record indicates that the mother and the father were only briefly incarcerated, during which time the children resided with the paternal grandmother — not the maternal grandmother. Upon their release, the mother and the father soon moved into the paternal grandmother’s home and the father obtained full-time employment — a sequence that does not establish an extended disruption of the mother and the father’s custody … . Moreover, while DSS made a finding of neglect, a DSS representative informed Family Court … that DSS did not have any ongoing child protective concerns. In doing so, DSS recognized that the father’s brother, a level one sex offender, lived in the paternal grandmother’s home. There is no evidence that the brother ever mistreated the children… . The father testified that he trusts his brother to be around the children, but would not and does not leave the children alone with him. The mother is not employed and is at home with the children.

As for the maternal grandmother, the record shows that she has never spent more than a couple of hours with the children and would only see them a few times each year. …

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Family Court’s decision … raises an additional concern. Specifically, the court’s reference to “another male whose presence around children is questionable” — a person that the court then characterized as an undesirable — is not based on any testimony during the trial. As explained by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d 270 [1969]), any new information adverse to the parents derived during a Lincoln hearing may not be considered by the court “without in some way checking on its accuracy during the course of the open hearing” … . Under the circumstances presented, we conclude that the matter must be remitted to Family Court for further proceedings to address the circumstances concerning the other male in the paternal grandmother’s home and to determine whether or not there has been a showing of extraordinary circumstances based on the totality of the evidence and, if so, what disposition is in the best interests of the children. Matter of Shaver v Bolster, 2017 NY Slip Op 08232, Third Dept 11-22-17

 

FAMILY LAW (CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/CUSTODY (FAMILY LAW, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, MODIFICATION OF CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))/LINCOLN HEARING (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))

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EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support child abuse and neglect findings against the respondent mother. Injuries to the child were caused by father. But the evidence did not support the finding that mother knew or should have known father had injured the child:

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Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child’s leg … , she had not noticed anything unusual or concerning with respect to the younger child. …

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Nor do we find that respondent neglected the younger child by failing to seek medical care for the child when she observed redness and swelling in his leg … . Respondent testified that the child was not crying, that she thought the redness and swelling could be a reaction to vaccines that the child had a few days earlier and that she continually monitored the child’s condition that evening and throughout the next day. According to respondent, prior to leaving for work the following morning, she directed the father to monitor the child’s leg and let her know if it got worse. Respondent testified that she checked in with the father on her lunch break, scheduled an appointment with the child’s pediatrician for immediately after work and instructed the father to take the child to the doctor earlier if he determined that it could not wait. Under these circumstances, the record does not support a finding that respondent neglected the younger child by, as petitioner contends, failing to secure prompt medical attention … . Matter of Lucien HH. (Michelle PP.), 2017 NY Slip Op 08224, Third Dept 11-22-17

 

FAMILY LAW (CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))

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IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT).

The First Department noted that the trial court’s denial of a Frye hearing about DNA testing was properly denied based upon the results of an eight-month long Frye hearing on the same issues in a court of coordinate jurisdiction:

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The motion court’s pretrial ruling … denying defendant’s motion to exclude, or alternatively to conduct a Frye … hearing on, expert testimony relating to high sensitivity, or low copy number (LCN) DNA testing, was a provident exercise of discretion. At the time that the motion court’s ruling was made, a court of coordinate jurisdiction, following an eight-month Frye hearing, had issued a decision holding that LCN DNA testing was “generally accepted as reliable in the forensic scientific community” and “not a novel scientific procedure” … . “A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” … . …

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Likewise, the trial court’s denial of defendant’s renewed motion for a Frye hearing … , which motion was recast to include evidence relating to both LCN DNA testing and a then-recently issued FST DNA testing report, was a provident exercise of discretion. The trial court’s ruling was consistent with prior determinations of courts of coordinate jurisdiction that these procedures were not novel scientific techniques and were generally accepted by the relevant scientific community … . People v Gonzalez, 2017 NY Slip Op 08191, First Dept 11-21-17

 

CRIMINAL LAW (EVIDENCE, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/FRYE HEARINGS (CRIMINAL LAW DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/DNA (CRIMINAL LAW, FRYE HEARINGS, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))

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MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to vacate his conviction based upon recanting testimony was properly denied without a hearing. The court emphasized the weakness of recanting testimony:

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“There is no form of proof so unreliable as recanting testimony” … , and such testimony is “insufficient alone to warrant vacating a judgment of conviction” … . “Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witness’s demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” … .

Here, the victim gave abundant testimony at trial that amply supported his ultimate statement that he had “[n]o doubt” that defendant was the shooter. In contrast, the victim’s affidavit was prepared more than 10 years following the shooting, after the victim had become an inmate at the same prison in which defendant is incarcerated, and the victim blamed an individual identified only as “Marvin,” who was alleged to be deceased since 2008 … . We therefore conclude that, “[n]otwithstanding the absence of an evidentiary hearing, the totality of the parties’ submissions along with the trial record warrant a factual finding that the recantation is totally unreliable” … , and that the court properly denied defendant’s motion. People v Pringle, 2017 NY Slip Op 08131, Fourth Dept 11-17-17

 

CRIMINAL LAW (MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, RECANTING TESTIMONY, MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT))/CONVICTION, MOTION TO VACATE (RECANTING TESTIMONY, MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT))/RECANTING TESTIMONY (CRIMINAL LAW, (MOTION TO VACATE CONVICTION BASED UPON RECANTING TESTIMONY PROPERLY DENIED WITHOUT A HEARING, WEAKNESS OF RECANTING TESTIMONY EMPHASIZED (FOURTH DEPT))

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DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a dissenting opinion, determined plaintiff properly survived defendants’ summary judgment motion in this stairway fall case. Plaintiff’s decedent died before he was deposed. There was a video of the fall but it was destroyed after decedent’s daughter requested a copy of it. The motion court held plaintiff was entitled to an adverse inference. The complaint alleged the cause of the fall was inadequate illumination and submitted a supporting affidavit by an expert:

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The dissent contends … that the issue of proximate cause must be decided as matter of law in favor of defendants because “none of [the witness to the accident or who reviewed the videotape of the accident] claimed that the decedent misstepped or lost his balance due to inadequate lighting.” The law, however, does not apply such a stringent requirement. To be sure, a plaintiff’s inability to identify the cause of a fall is fatal to an action because a finding that the defendant’s negligence proximately caused a plaintiff’s injuries would be based on speculation … . However, this simply requires that the evidence identifies the defect or hazard itself and provides sufficient facts and circumstances from which causation may be reasonably inferred … .

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The dissent cannot and does not dispute that inadequate lighting itself may constitute a dangerous condition where the inadequacy of lighting renders the appearance of premises deceptive. Such deception occurs by the illusion that two areas of the same premises are on the same level whereas, in fact, there is a change in floor level to which the available lighting does not call sufficient attention.

… [W]e find that the evidence adduced by defendants failed to eliminate all issues of fact as to whether this alleged dangerous condition on the subject stairway contributed to the decedent’s fall. Haibi v 790 Riverside Dr. Owners, Inc., 2017 NY Slip Op 08102, First Dept 11-16-17

 

NEGLIGENCE (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/SLIP AND FALL (INADEQUATE LIGHTING,  DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/LIGHTING (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/ILLUMINATION  (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/INADEQUATE LIGHTING (SLIP AND FALL, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/STAIRWAY  (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, PROXIMATE CAUSE, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/PROXIMATE CASE (SLIP AND FALL, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/SPOLIATION (SLIP AND FALL, VIDEO DESTROYED, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))/VIDEO (SPOLIATION, SLIP AND FALL, VIDEO DESTROYED, INADEQUATE LIGHTING, DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT))

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PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant store’s (Me-Me’s) motion for summary judgment in this slip and fall case should not have been granted and plaintiff was entitled to an adverse inference charge because a video of the fall had been negligently LOST. Plaintiff alleged she stepped on a grape. Defendant did not demonstrate a lack of notice by submitting evidence of its general cleaning practices:

“In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence”… . To provide constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … . * * *

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Since Me-Me’s loss of the video recording was negligent rather than intentional, and the loss of the recording does not completely deprive the plaintiff of the ability to prove her case, the appropriate sanction is to direct that an adverse inference charge be given at trial with respect to the unavailable recording … . Eksarko v Associated Supermarket, 2017 NY Slip Op 07975, Second Dept 11-15-17

 

NEGLIGENCE (SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/SLIP AND FALL (PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/EVIDENCE (SPOLIATION, SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT)/SPOLIATION (SLIP AND FALL, VIDEO,  PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))/VIDEO (SLIP AND FALL, SPOLIATION,  PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE LACK OF NOTICE IN THIS SLIP AND FALL CASE, NEGLIGENT LOSS OF VIDEO WARRANTED AN ADVERSE INFERENCE CHARGE (SECOND DEPT))

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