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RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

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THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, over a two-justice dissent, determined the conviction was against the weight of the evidence. Defendant raised the justification defense in this manslaughter case. Once the defense was raised, the People were required to prove, beyond a reasonable doubt, the defendant’s act was not justified. The Fourth Department held that the jury’s finding the defendant’s act was not justified was against the weight of the evidence:

… [T]he People were required to prove either that defendant lacked a subjective belief that her use of deadly physical force was necessary to protect herself against decedent’s use or imminent use of deadly physical force, or that “a reasonable person in the same situation would not have perceived that deadly force was necessary”… . Although the jury found that the People met that burden, we conclude, upon our independent assessment of the proof… , that the jury “failed to give the evidence the weight it should be accorded”… . Defendant’s statements at the scene and in her police interview evinced a belief that deadly force was necessary to protect her from decedent, and we conclude that the People did not demonstrate beyond a reasonable doubt that her belief was objectively unreasonable. Instead, the credible evidence established that decedent was in a drunken rage during a heated argument with defendant, that he had threatened “trouble” if the police came, that he had repeatedly forced open doors in the course of pursuing defendant through the apartment, that he was not deterred even when she armed herself with a knife, that he had cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair to prevent her from leaving the bathroom just before she stabbed him. Under those circumstances, we conclude that the People failed to meet their burden of establishing that defendant lacked a reasonable belief that decedent was about to use deadly physical force against her, even though decedent was not armed … . In other words, this is not a case in which the force employed by defendant ” exceeded that which was necessary to defend [herself]’ ” … . People v Marchant, 2017 NY Slip Op 05918, 4th Dept 7-27-17

CRIMINAL LAW (JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)/JUSTIFICATION DEFENSE (MANSLAUGHTER,  THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT)

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ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT.

The Third Department determined abuse findings were supported by substantial evidence, which was entirely hearsay. The court explained how hearsay is evaluated in the context of a ruling by an administrative agency, here the Justice Center for the Protection of People with Special Needs. Petitioner is an employee of the Office of People with Developmental Disabilities and was accused of abusing a service recipient. It was alleged petitioner held the service recipient down while another employee, Roberts, kicked her:

Petitioner contends that hearsay evidence cannot prevail over credible sworn testimony adduced at an administrative hearing. However, it is well established that “an administrative determination may be based entirely upon hearsay evidence provided such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” … . In addition, an administrative determination may be based entirely on such hearsay evidence even where there is contrary sworn testimony … .

Here, there is substantial evidence in the record to support the Justice Center’s final determination that petitioner engaged in conduct constituting category three abuse. In interviews conducted by an investigator, three eyewitnesses to the incident — two residents of the unit and Monica Sutton, a service provider — made consistent statements about the material facts of the incident, specifically, that petitioner restrained the service recipient on the floor while she was kicked by Roberts. Although the eyewitness statements received at the hearing were hearsay, there were sufficient indicia of their reliability. The accounts of the eyewitnesses, who were interviewed separately, are consistent with each other, and, as noted by the Justice Center, were “unwavering as to the core allegations.” Further, the statements from the residents were obtained in personal interviews conducted only three days after the incident, and, although Sutton’s statement was obtained approximately four months after the incident, it is corroborated by the written report of abuse that she made on the date of the incident. Notably, petitioner and Roberts each testified that Sutton witnessed the incident and, although each denied that Roberts kicked the service recipient, both admitted that the service recipient fell to the floor, where she grabbed Roberts by the legs, Roberts moved her legs in an effort to free herself, and petitioner touched or held the service recipient by the shoulder when she was on the floor; these admissions are consistent with the eyewitness reports. Accordingly, the hearsay evidence in the record was sufficiently reliable to provide substantial evidence to support the Justice Center’s determination. Matter of Watson v New York State Justice Ctr. for The Protection of People With Special Needs, 2017 NY Slip Op 05780, 3rd Dept 7-20-17

ADMINISTRATIVE LAW (EVIDENCE, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/EVIDENCE (ADMINISTRATIVE LAW, HEARSAY, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)/HEARSAY (ADMINISTRATIVE LAW, ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT)

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FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL 2ND DEPT.

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the trial judge should have given the jury the accomplice-in-fact instruction concerning the need for corroboration of the testimony of an accomplice:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22[1]). A witness in a criminal action is an accomplice if he or she “may reasonably be considered to have participated in . . . the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged”… . A witness who is a criminal facilitator is an accomplice for corroboration purposes … . The factual issue of whether a particular witness is an accomplice should be submitted to the jury if different inferences may reasonably be drawn from the proof regarding complicity … .

Here, different inferences may reasonably be drawn … as to whether the second eyewitness drove Gill and the shooter to the scene, with the knowledge that one or the other of them intended to use the gun. Under these circumstances, the Supreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The error was not harmless, because the evidence of the defendant’s guilt was not overwhelming. It is possible that the jury, properly charged on whether to treat the second eyewitness as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the events. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt … . People v Riley, 2017 NY Slip Op 05755, 2nd Dept 7-19-17

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)/JURY INSTRUCTIONS (CRIMINAL LAW, ACCOMPLICE TESTIMONY, FAILURE TO INSTRUCT THE JURY ON THE NEED FOR CORROBORATION OF THE TESTIMONY OF AN ACCOMPLICE REQUIRED A NEW TRIAL)

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INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT.

The Third Department determined there was insufficient proof of defendant’s criminal possession of a weapon under an accessorial liability theory:

… [A]s for defendant’s convictions of criminal possession of a weapon in the second degree, the conclusion that defendant was an accessory to Anderson or Bost [co-defendants] in their unlawful possession of weapons is against the weight of the evidence … . There was no proof presented during the trial that defendant ever personally possessed one of the handguns or in any way encouraged or intentionally aided Anderson or Bost in their possession of the handguns … .. Accordingly, as “there was no evidence that . . . defendant solicited, requested, commanded, importuned, or intentionally aided another individual to possess the firearm” … , we reverse defendant’s convictions of counts 3 and 4 of the indictment for criminal possession of a weapon in the second degree and dismiss said counts. People v Spencer, 2017 NY Slip Op 05631, 3rd Dept 7-13-17

CRIMINAL LAW (INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)/EVIDENCE (CRIMINAL LAW, INSUFFICIENT PROOF OF CRIMINAL POSSESSION OF A WEAPON UNDER AN ACCESSORIAL LIABILITY THEORY 3RD DEPT)

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STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT.

​The Second Department, reversing Supreme Court, determined plaintiff bank did not present sufficient proof that the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 were met:

… [W]here, as here, the plaintiff in a residential foreclosure action alleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, a plaintiff moving for summary judgment must “prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304” … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 … . Moreover, contrary to the plaintiff’s contention, the unsubstantiated and conclusory statement of a vice president of the plaintiff that “a 90-day default letter was sent in accordance with [ ] RPAPL 1304” was insufficient to establish that the required notice was mailed to the defendant by first-class and certified mail… . Since the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, its motion for summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition papers … . M&T Bank v Joseph, 2017 NY Slip Op 05587, 2nd Dept 7-12-17

FORECLOSURE (STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/EVIDENCE (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, STATUTORY NOTICE REQUIREMENTS NOT PROVEN, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED 2ND DEPT)

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EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … .  Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY  (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

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TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing defendant’s conviction and dismissing the indictment, determined the trooper who stopped defendant’s vehicle did not have a founded suspicion of criminal activity at the time the trooper asked questions which amounted to a De Bour level two inquiry:

Defendant appeals from a judgment convicting him upon his plea of guilty of possessing or transporting 30,000 or more unstamped cigarettes … . When a State Trooper pulled over defendant for speeding on Interstate 81, he noticed “several large nylon bags” with “square edged contours” filling the area behind the driver’s seat. The Trooper initially asked defendant what was inside the bags, i.e., whether there was luggage in the bags, and defendant gave a series of increasingly implausible answers, including “clothing,” “presents,” “riding toys,” and “bicycles.” Defendant asked if he could leave, but the Trooper instead requested that he exit the vehicle while the Trooper spoke to two passengers. When the Trooper returned to speak to defendant, but before he advised defendant of his Miranda rights, defendant admitted that the bags contained nearly 300 cartons of untaxed cigarettes purchased from an Indian reservation.

We conclude that the court erred in refusing to suppress the physical evidence and statements at issue. Contrary to defendant’s contention, however, our rationale is not grounded in custody and/or Miranda issues. “In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” … . Here, defendant was not in custody during his temporary roadside detention, and it was permissible for the Trooper to engage in a reasonable interrogation of defendant without first advising him of his Miranda rights … .

We conclude, however, that the Trooper’s initial inquiry concerning the contents of the bags constituted a level two common-law inquiry, which required a founded suspicion of criminality that was not present at the time … . Indeed, we note that nervousness, fidgeting, and illogical or contradictory responses to level one inquiries do not permit an officer to escalate an encounter to a level two De Bour confrontation … . Here, the facts are even more strongly in favor of defendant inasmuch as defendant’s evasive and inconsistent answers were themselves induced by a level two inquiry from the Trooper. Because a founded suspicion of criminality did not arise until after the Trooper asked defendant what was inside the bags, the court erred in refusing to suppress the evidence. People v Gates, 2017 NY Slip Op 05549, 4th Dept 7-7-17

 

CRIMINAL LAW (STREET STOP, SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/STREET STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/SUPPRESS, MOTION TO  (STREET STOP, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/TRAFFIC STOPS (SUPPRESSION, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)/DE BOUR (LEVEL TWO INQUIRY, TROOPER DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY WHEN DEFENDANT WAS QUESTIONED ABOUT THE CONTENTS OF BAGS IN HIS VEHICLE, DEFENDANT’S NERVOUSNESS AND INCONSISTENT ANSWERS DID NOT JUSTIFY THE QUESTIONING, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 4TH DEPT)

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THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT.

The Fourth Department, over a dissent, determined the identification testimony by a police officer was unreliable because the photograph upon which the officer’s identification was based was not put in evidence at the hearing. A new trial was ordered. The dissent noted that this is the first case holding an identification unreliable where an unduly suggestive police identification procedure was not involved:

At the hearing, the People attempted to introduce in evidence a photograph that was allegedly used by the undercover officer. The court refused to admit the photograph in evidence, however, on the grounds that the People failed to produce it during discovery and that, in their discovery responses, the People expressly denied the existence of any photographs in the People’s possession. Thus, the photograph, i.e., the linchpin to the undercover officer’s identification of defendant, was not before the court, and we conclude that its absence created a presumption of unreliability in the pretrial identification of defendant by the undercover officer … .

We further note that the People failed to adduce any evidence detailing the procedures used to obtain the photograph at issue … . The undercover officer testified that he was given the name “Kevin Reeves” by a confidential informant. The confidential informant did not testify. Significantly, the officer could not recall if the confidential informant gave him any identifying factors about “Kevin Reeves” such as height, description, or skin color. The officer testified that he entered the name “Kevin Reeves” into a law enforcement computer database and that his search resulted in a photograph that he printed and viewed after the drug transaction. The officer did not testify, however, as to which search criteria he used, how many photos he viewed in response to his search criteria, and how he may have distinguished among more than one photograph generated by his search. As a result of the above shortcomings in the People’s evidence, we conclude that the People failed to rebut the presumption of unreliability of the pretrial identification created by the absence of the photograph … .

FROM THE DISSENT:

I do not believe that there is any legal basis to suppress identification testimony of a defendant based on the alleged unreliability of the witness’s identification unless the identification is the product of unduly suggestive police procedures … . Indeed, a suppression court is not required to make “a threshold inquiry into the reliability of . . . identification testimony” … , and “the reliability of untainted in-court identification testimony presents an issue of fact for jury resolution’ “… .

This is the first reported case in New York where identification testimony has been suppressed in the absence of a finding that the identification was influenced by unduly suggestive police procedures. People v Reeves, 2017 NY Slip Op 05526, 4th Dept 7-7-17

CRIMINAL LAW (IDENTIFICATION, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/EVIDENCE (CRIMINAL LAW, IDENTIFICATION, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/IDENTIFICATION (CRIMINAL LAW, THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)/PHOTOGRAPHS (CRIMINAL LAW, IDENTIFICATION,  THE FAILURE TO PLACE THE PHOTOGRAPH WHICH WAS THE BASIS FOR THE POLICE OFFICER’S IDENTIFICATION OF THE DEFENDANT IN EVIDENCE RENDERED THE OFFICER’S IDENTIFICATION TESTIMONY UNRELIABLE, NEW TRIAL ORDERED 4TH DEPT)

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DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing this asbestos-related products liability action should not have been granted. Defendants merely pointed to gaps in plaintiffs’ proof and did not submit prima facie proof demonstrating their products were not the source of asbestos exposure. Therefore summary judgment should have been denied without any reference to the opposing papers:

In February 2015, plaintiff Eileen A. O’Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O’Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants) … . * * *

… [T]he proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O’Connor was employed or that O’Connor was not exposed to any such products … . * * *

… [D]efendants failed to establish, prima facie, that they could not have caused O’Connor’s asbestos-related illness… . Fisher Scientific’s lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, defendants, respectively, “merely pointed to perceived gaps in plaintiff[s’] proof, rather than submitting evidence showing why [plaintiffs’] claims fail” … . O’Connor v Aerco Intl., Inc., 2017 NY Slip Op 05487, 3rd Dept 7-6-17

PRODUCTS LIABILITY (DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SUMMARY JUDGMENT (PRODUCTS LIABILITY, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EVIDENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/NEGLIGENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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