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PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED.

The Second Department, reversing defendant’s conviction, determined the prosecutor’s remarks in summation amounted to prosecutorial misconduct, a 911 call made by a non-testifying witness should not have been admitted as present sense impression or an excited utterance, and the cross-examination of the complainant was unduly restricted. With respect to the prosecutor’s summation, the court wrote:

Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that “the witnesses who came before you provided truthful testimony that makes sense,” that they gave the “kind of truthful and credible testimony that you can rely on,” and that one witness had “no reason . . . to be anything but truthful with the 911 operator” … . In describing a complainant, the prosecutor asserted that he was “exactly what you hoped to see from someone who had troubles with the law in their youth,” but had “changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,” which was a clear attempt to appeal to the sympathy of the jury … . To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced … . Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a “saint” for answering so many questions … . Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 … . The cumulative effect of these improper comments deprived the defendant of a fair trial … . People v Casiano, 2017 NY Slip Op 02053, 2nd Dept 3-22-17

CRIMINAL LAW (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/PROSECUTORIAL MISCONDUCT (PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/EVIDENCE (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/HEARSAY (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED)/911 CALL (CRIMINAL LAW, PROSECUTOR’S SUMMATION AMOUNTED TO MISCONDUCT, 911 CALL SHOULD NOT HAVE BEEN ADMITTED AS PRESENT SENSE IMPRESSION OR AN EXCITED UTTERANCE, CROSS-EXAMINATION OF COMPLAINANT UNDULY RESTRICTED

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PLAINTIFF’S INABILITY TO PINPOINT THE CAUSE OF HIS FALL FROM A LADDER DID NOT WARRANT SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE.

The First Department determined plaintiff’s inability to state exactly how the accident happened did not warrant summary judgment. Circumstantial evidence established that the bottom of plaintiff’s ladder slid out from under him:

“A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence” … . Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim, despite his admitted inability to remember the specifics of the accident, through the submission of a workers’ compensation report and the statement of defendant … , both of which established that the accident occurred when the bottom of the ladder from which plaintiff was descending suddenly slipped out from under him, causing him to fall to the ground … . Weicht v City of New York, 2017 NY Slip Op 01995, 1st Dept 3-21-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S INABILITY TO PINPOINT THE CAUSE OF HIS FALL FROM A LADDER DID NOT WARRANT SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE)/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S INABILITY TO PINPOINT THE CAUSE OF HIS FALL FROM A LADDER DID NOT WARRANT SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S INABILITY TO PINPOINT THE CAUSE OF HIS FALL FROM A LADDER DID NOT WARRANT SUMMARY JUDGMENT, THERE WAS CIRCUMSTANTIAL EVIDENCE OF THE CAUSE)

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ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE.

The First Department determined a police officer was properly allowed to testify the robbery victim identified defendant at a showup because the victim’s statement was an excited utterance:

At trial, the court properly permitted a police officer to testify that the victim of the … robbery identified defendant at a showup. This testimony was admissible, notwithstanding the general rule against third-party bolstering … , because the victim’s declaration qualified as an excited utterance. Shortly after the victim was robbed at gunpoint in his taxicab, he called 911 and was brought in a police vehicle to defendant, who was being detained. The victim immediately yelled, “[O]h my God[!] . . . [I]t is the same guy . . . . Thank God you caught him[!]” Under the circumstances, this identification was made “under the stress of excitement caused by an external event, and [was] not the product of studied reflection and possible fabrication” … . People v Everette, 2017 NY Slip Op 01962, 1st Dept 3-16-17

CRIMINAL LAW (EVIDENCE, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/EVIDENCE (CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/HEARSAY (CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/BOLSTERING (CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/EXCITED UTTERANCE (CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/SHOWUP IDENTIFICATION CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)/INDENTIFICATION (CRIMINAL LAW, ALLOWING POLICE OFFICER TO TESTIFY ABOUT VICTIM’S IDENTIFICATION OF DEFENDANT AT A SHOWUP WAS NOT BOLSTERING, VICTIM’S STATEMENT WAS AN EXCITED UTTERANCE)

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NO NEED FOR ARRESTING OFFICER TO TESTIFY AT SUPPRESSION HEARING, INFERENCE OF MUTUAL COMMUNICATION APPLIED.

The First Department determined the arresting officer did not need to testify at the suppression hearing and explained the inference of mutual communication:

The arresting officer had probable cause to arrest defendant under the fellow officer rule because “the radio transmission [of] the undercover officer . . . provided details of the defendant’s race, sex, clothing, as well as his location and the fact that a positive buy’ had occurred” and defendant was the only person in the area who matched the description at the location … . Although the arresting officer did not testify at the suppression hearing, “the only rational explanation for how defendant came to be arrested . . . is that [the arresting officer] heard the radio communication [heard by the testifying officer] and apprehended defendant on that basis” … . The inference of mutual communication … does not turn on what kind of radios the officers were using, or how well the radios were working, but on the simple fact that, without hearing the radio transmission, the arresting officer would have had no way of knowing where to go or whom to arrest. People v Vidro, 2017 NY Slip Op 01975, 1st Dept 3-16-17

CRIMINAL LAW (NO NEED FOR ARRESTING OFFICER TO TESTIFY AT SUPPRESSION HEARING, INFERENCE OF MUTUAL COMMUNICATION APPLIED)/EVIDENCE (CRIMINAL LAW, NO NEED FOR ARRESTING OFFICER TO TESTIFY AT SUPPRESSION HEARING, INFERENCE OF MUTUAL COMMUNICATION APPLIED)/MUTUAL COMMUNICATION , INFERENCE OF (CRIMINAL LAW, NO NEED FOR ARRESTING OFFICER TO TESTIFY AT SUPPRESSION HEARING, INFERENCE OF MUTUAL COMMUNICATION APPLIED)/SUPPRESSION (CRIMINAL LAW, EVIDENCE, NO NEED FOR ARRESTING OFFICER TO TESTIFY AT SUPPRESSION HEARING, INFERENCE OF MUTUAL COMMUNICATION APPLIED)

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NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED.

The Second Department, reversing Family Court, determined the neglect petition should not have been dismissed at the close of the direct case. There was sufficient evidence of excessive corporal punishment and sufficient corroboration of the child’s out of court statements:

At the fact-finding hearing, the petitioner introduced a recording of two telephone calls to the 911 emergency number, and elicited testimony from a police officer and a caseworker that the mother admitted using a belt against the child. Such evidence was sufficient to corroborate the child’s out-of-court statements to the caseworker that the mother beat her … . Moreover, the absence of physical injury is not dispositive … . In any event, the caseworker’s testimony that the child had stated that her upper right arm hurt from having defended herself, was not undermined on cross examination. Finally, dismissal was not warranted on the ground that the child gave a conflicting statement to the police officer. Matter of Jaivon J. (Patricia D.), 2017 NY Slip Op 01856, 2nd Dept 3-15-17

FAMILY LAW (NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/EVIDENCE (FAMILY LAW, NEGLECT, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/NEGLECT (FAMILY LAW, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)

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911 CALL AND PRIOR CONSISTENT STATEMENT PROPERLY ADMITTED AS EXCITED UTTERANCES.

The Second Department determined a 911 call and a prior consistent statement were properly admitted as excited utterances:

… [T]he recording of the 911 call was properly admitted into evidence under the excited utterance and present sense impression exceptions to the hearsay rule, as the probative value of this evidence outweighed any prejudicial effect … .

The defendant contends that he was deprived of a fair trial when the prosecutor elicited testimony from a police officer and the victim’s niece regarding statements made by the victim’s son at the scene, which improperly bolstered the testimony of the victim’s son identifying the defendant as the shooter. … . If a proffered statement also meets the requirements to be admitted as an excited utterance, its admission would be proper, notwithstanding the characterization as a prior consistent statement … . Here, the Supreme Court properly admitted the testimony of the police officer and the victim’s niece concerning the statements of the victim’s son at the scene identifying the defendant as the shooter under the excited utterance exception to the hearsay rule, and that testimony did not constitute improper bolstering … . People v Chin, 2017 NY Slip Op 01880, 2nd Dept 3-15-17

 

CRIMINAL LAW (911 CALL AND PRIOR CONSISTENT STATEMENT PROPERLY ADMITTED AS EXCITED UTTERANCES)/EVIDENCE (CRIMINAL LAW, 911 CALL AND PRIOR CONSISTENT STATEMENT PROPERLY ADMITTED AS EXCITED UTTERANCES)/HEARSAY (CRIMINAL LAW, 911 CALL AND PRIOR CONSISTENT STATEMENT PROPERLY ADMITTED AS EXCITED UTTERANCES)/EXCITED UTTERANCES (CRIMINAL LAW, 911 CALL AND PRIOR CONSISTENT STATEMENT PROPERLY ADMITTED AS EXCITED UTTERANCES)

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WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY.

The First Department determined a witness’s disavowed identification of another as the perpetrator could not be used as evidence of third-party culpability:

The court providently exercised its discretion in ruling that defendant could not, in the absence of additional evidence, argue that the person initially identified by the witness was the actual perpetrator … , and this ruling did not deprive defendant of a fair trial or the right to present a defense. The court did not preclude defendant from introducing evidence of third-party culpability; on the contrary, it expressly invited defendant to introduce certain evidence of that nature. Rather than precluding a third-party culpability defense, the court providently ruled that such a defense could not, without more, be supported by the disavowed identification, which the witness explained as a deliberate falsehood. Defendant received a full opportunity to explore the misidentification and all surrounding circumstances, and to use these matters to attack the witness’s credibility. While defendant cites additional evidence that would have supported the claim that the misidentified man was the actual perpetrator, he was free to introduce this evidence at trial but failed to do so. Even if the court had permitted defendant to specifically argue third-party culpability in summation, defendant would not have been entitled to argue about matters not in evidence. People v Francis, 2017 NY Slip Op 01817, 1st Dept 3-15-17

CRIMINAL LAW (WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)/THIRD PARTY CULPABILITY (CRMINAL LAW, (WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY)

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CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED.

The Second Department determined Family Court properly dismissed the neglect petition against mother which was based upon mother’s alleged mental illness:

Although a finding of neglect may be predicated upon proof that a child’s mental, physical, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness, “proof of mental illness alone will not support a finding of neglect” … .

Here, the petitioner failed to sustain its burden of proving by a preponderance of the evidence that the children’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother’s mental illness … . The evidence showed that the children were healthy and well cared for by the mother … . Matter of Jaurelious G. (Gwendolyn J.), 2017 NY Slip Op 01692, 2nd Dept 3-8-17

 

FAMILY LAW (CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)/NEGLECT (FAMILY LAW, MENTIAL ILLNESS, CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)/MENTAL ILLNESS (FAMILY LAW, NEGLECT, CHIDREN WERE HEALTHY AND WELL CARED FOR, NEGLECT PETITION BASED UPON MOTHER’S MENTAL ILLNESS PROPERLY DISMISSED)

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CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS.

The Second Department determined Family Court properly dismissed the neglect petition without prejudice. The petitioner failed to establish the respondent father was legally responsible for the child whose statements petitioner sought to use as evidence. (The neglect proceedings did not involve the child who made the statements):

Here, the petitioner failed to establish by a preponderance of the evidence … . At the fact-finding hearing, the petitioner presented a caseworker as its only witness and documentation of the father’s criminal offenses. The caseworker testified to previous statements allegedly made to her by a child complainant in one of the respondent’s prior criminal cases. Family Court Act § 1046(a)(vi) provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence” (Family Ct Act § 1046[a][vi]). Such statements are admissible in a child protective proceeding, even when the child is not the subject of the proceeding … . However, child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child’s care … , and the sections regarding admissibility of previous statements of an abused or neglected child refer to a child in the care of the respondent … .

A person legally responsible includes a custodian of the child, which “may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child” … . In determining whether a respondent is such a custodian, the court should consider the particular circumstances, including “the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s)”… . A person legally responsible is not a caregiver who has fleeting or temporary care of a child, such as a supervisor of a play date … .

Here, the petitioner failed to establish that the respondent was a person legally responsible for the child whose statements it wished to introduce through the testimony of the caseworker … . Matter of Kaliia F. (Jason F.), 2017 NY Slip Op 01691, 2nd Dept 3-8-17

 

FAMILY LAW (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)/EVIDENCE (FAMILY LAW, (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)/HEARSAY (FAMILY LAW, (CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS)

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NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD.

The Second Department determined Family Court properly found both mother and caretaker responsible for child abuse. It was not necessary to prove which of the two caused injury to the child:

The Family Court Act defines an abused child, inter alia, as a child whose parent, or other person legally responsible for his or her care, “(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ or (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause [such injury]” … . Family Court Act § 1046(a)(ii) provides that a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred … . “A parent who stands by while others inflict harm may be found responsible for that harm” … .

Section 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred … . In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together … . Matter of Zoey D. (Simona D.), 2017 NY Slip Op 01689, 2nd Dept 3-8-17

 

FAMILY LAW (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/EVIDENCE (FAMILY LAW, CHILD ABUSE, NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)/CHILD ABUSE (NOT NECSSARY TO PROVE WHICH OF TWO CARETAKERS WITH ACCESS TO THE CHILD ACTUALLY INJURED THE CHILD)

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