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EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION’S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE’S CASE TO PROVE INTENT.

The Court of appeals, in a full-fledged opinion by Judge DiFiore, determined that even though defendant relied solely on the prosecution's evidence to raise the agency defense to the charged drug sale, Molineux evidence of defendant's prior conviction for a drug sale was admissible in the People's direct case to prove intent:

… [D]efendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People's witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant's prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant's prior drug sale conviction on the issue of intent in their case-in-chief … . People v Valentin, 2017 NY Slip Op 03444, CtApp 5-2-17

CRIMINAL LAW (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/EVIDENCE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/AGENCY DEFENSE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/MOLINEUX EVIDENCE (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)

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HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

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Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

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DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

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While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

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It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED.

The Second Department, in affirming summary judgment for defendant in this dog bite case, noted that hearsay, standing alone, is insufficient to defeat a summary judgment motion. Defendant (Nicole) demonstrated she had no knowledge the dog had vicious propensities. In response, plaintiff presented only hearsay:

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Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating, through Nicole’s deposition testimony, that she was not aware, nor should she have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior … . Nicole testified that she had purchased the dog when it was two months old, the dog had undergone obedience training, and the dog had never attacked or bitten anyone before the incident at issue.

The plaintiff failed to raise a triable issue of fact in opposition. The only evidence offered by the plaintiff to demonstrate that, prior to this incident, the dog had exhibited fierce or hostile tendencies was hearsay, which is insufficient, on its own, to bar summary judgment … . Ciliotta v Ranieri, 2017 NY Slip Op 03150, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/ANIMAL LAW (DOG BITE, SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/DOG BITE  (SUMMARY JUDGMENT, HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/HEARSAY (SUMMARY JUDGMENT,  HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)/SUMMARY JUDGMENT (HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED)

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MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.

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The Second Department, reversing Supreme Court, determined defendant’s motion to renew in this rear-end collision case should not have been deemed a motion to reargue and denied. Plaintiff presented new evidence which was not available at the time the original motion was heard. The new evidence was sufficient to defeat the summary judgment motion:

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The new evidence included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the court on the prior motion, as her deposition had not been completed until after the prior motion had been decided. Therefore, the motion was correctly denominated by the defendant as one for leave to renew his opposition to the plaintiff’s motion for summary judgment. Furthermore, this new evidence raised triable issues of fact as to the plaintiff’s comparative fault. Accordingly, the evidence was sufficient to change the court’s prior determination, and should have resulted in the court, upon renewal, denying the plaintiff’s motion for summary judgment on the issue of liability. Donovan v Rizzo, 2017 NY Slip Op 03154, 2nd Dept 4-26-17

CIVIL PROCEDURE (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/RENEW, MOTION TO MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/REARGUE, MOTION TO  (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)

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HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.

The Second Department noted that hearsay can be submitted in opposition to a summary judgment motion but, to raise a question fact, hearsay alone is not enough. Dindiyal v Dindiyal, 2017 NY Slip Op 03152, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/SUMMARY JUDGMENT (HEARSAY,(HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)  

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PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS.

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert (Dr. Befeler) was a general surgeon and did not assert any knowledge of gastroenterology. His affidavit was not sufficient to raise a question of fact in the face of plaintiff’s gastroenterology experts:

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Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology … . While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, [his] education, years of training, and [his] forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040, 1st Dept 4-20-17

NEGLIGENCE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/MEDICAL MALPRACTICE (PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT, A GENERAL SURGEON, DID NOT ASSERT KNOWLEDGE OF GASTROENTEROLOGY AND THEREFORE DID NOT RAISE A QUESTION OF FACT IN THE FACE OF DEFENDANTS’ GASTROENTEROLOGY EXPERTS)

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RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION.

The Third Department, reversing Supreme Court, determined the audio recording of a conversation between defendant and his insurer was privileged as a statement prepared for litigation. Plaintiff was injured using a log splitter on defendant’s property. Defendant denied owning the log splitter and plaintiff alleged defendant admitted ownership in the statement:

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The statement was made during a phone conversation between Judy Gavin, the insurer’s claims representative, and defendant five days after the incident. At the start of the conversation, Gavin informed defendant that the conversation was being recorded and taken as part of the normal claims process. Gavin further agreed to provide defendant with a copy of the statement. We have long recognized that “[t]he purpose of liability insurance is the defense and settlement of claims and, once an accident has arisen, there is little or nothing that the insurer or its employees do with respect to accident reports except in preparation for eventual litigation or for a settlement which may avoid litigation” … . As such, an insurer’s file is generally protected by “a conditional immunity . . . as material prepared for litigation” … . This conditional privilege may have to yield to disclosure where the other party demonstrates a substantial need for the material and withholding same would result in undue hardship (see CPLR 3101 [d] [2]). Accident reports prepared with a mixed purpose, however, are not exempt from disclosure … .

Defendant’s burden was to demonstrate that his statement was obtained solely for litigation purposes … . To that end, defendant submitted the affidavit of Dennis Stauffer, who was Gavin’s supervisor at the time of the incident. Stauffer explained that Gavin was no longer employed by the insurer and that she procured the statement in accord with the insurer’s “normal practice in anticipation of future litigation.” In our view, Stauffer’s affidavit, coupled with Gavin’s own characterization of the interview as part of the normal claims process, satisfied defendant’s threshold burden of proof … . There is no dispute that ownership of the log splitter is a key issue, but plaintiffs have other means available to explore this issue, and they have not demonstrated any undue hardship if the statement is withheld. Nor is there any indication that the statement was taken for some purpose other than preparing for litigation. Curci v Foley, 2017 NY Slip Op 03100, 3rd Dept 4-20-17

 

INSURANCE LAW (RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)/PRIVILEGE (RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)/EVIDENCE (INSURANCE LAW, RECORDED PHONE CONVERSATION WITH INSURER PROTECTED AS A STATEMENT PREPARED FOR LITIGATION)

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CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing Family Court, determined a child’s out of court statements about father’s physical abuse of mother was sufficiently corroborated by similar evidence concerning the children in a prior neglect proceeding:

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A preponderance of the evidence established that the father neglected the subject children by perpetrating acts of domestic violence against the mother in their presence … . Contrary to the Family Court’s determination, the child’s out-of-court statement was sufficiently corroborated. Family Court Act § 1046(a)(vi) provides, in part, that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration.” Family Court Act § 1046(a)(i) provides, in part, that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” The child’s statement was corroborated by, among other evidence, proof of the father’s prior neglect of the children by perpetrating acts of domestic violence against the mother in their presence … . Additionally, contrary to the court’s further determination, the evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition ,,, . Moreover, a negative inference is properly drawn from the father’s failure to testify ,,, , Matter of Jubilee S. (James S.), 2017 NY Slip Op 03006, 2nd Dept 4-19-17

FAMILY LAW (CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/HEARSAY (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)

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COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL.

The Second Department. over a dissent, rejected defendant’s argument that he did not consent to the release to the prosecution of recordings of his phone conversations from jail. Defendant acknowledged he was aware the conversations could be monitored and recorded, but noted that the stated reason for recording in the jail handbook was for jail security. The Second Department instructed that the better practice would be to notify inmates the recordings could be turned over to the prosecution:

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We note that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” and certainly “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners” … . Since any concern that the notice provided to inmates by the DOC is inadequate can be readily ameliorated by an express notification that the recorded calls may be turned over to the District Attorney, the better practice going forward may be for the DOC to include such a warning … . Rather, the trial court must weigh the probative value of the recordings against the potential for prejudice to the defendant … . “[D]ue to the possibility of prejudice inherent in the prosecutor’s use of inmate recordings, the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure” … . People v Diaz, 2017 NY Slip Op 03013, 2nd Dept 4-19-17

CRIMINAL LAW (COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/EVIDENCE (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)/RECORDINGS (CRIMINAL LAW, COURT REJECTS ARGUMENT DEFENDANT DID NOT CONSENT TO THE RELEASE TO THE PROSECUTION OF RECORDINGS OF HIS PHONE CALLS FROM JAIL)

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