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A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “A prima facie showing of actual innocence is made out when there is “a sufficient showing of possible merit to warrant a fuller exploration”‘ by the court” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

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EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the evidence before the grand jury was sufficient to demonstrate defendant’s knowledge he possessed cocaine. The defendant received a package containing cocaine addressed to a name (not his name) he used to sign for it and the package was addressed to a location which was not where defendant resided. The defendant was arrested before the package was opened:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” … . ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference” … . People v Jimenez, 2017 NY Slip Op 01566, 2nd Dept 3-1-17

CRIMINAL LAW(EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/GRAND JURIES (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/CONTROLLED SUBSTANCE, POSSESSION OF (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)

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UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendant’s motion to suppress his statements should have been granted:

At the suppression hearing, a police detective testified that while the defendant was in custody, he administered Miranda warnings … and took the defendant’s written statement. On cross-examination, the detective admitted that 10 minutes prior to taking the defendant’s Mirandized written statement, he questioned the defendant without administering Miranda warnings. The written statement itself refers to incriminating statements made by the defendant during the earlier, pre-Miranda questioning. The Supreme Court denied suppression.

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . Here, the improper unwarned statements made by the defendant gave rise to a subsequent Mirandized written statement as part of a single continuous chain of events. Accordingly, both the oral statement and the written statement should have been suppressed. People v Ghee, 2017 NY Slip Op 01564, 2nd Dept 3-1-17

 

CRIMINAL LAW (UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/EVIDENCE (CRIMINAL LAW, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENTS, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, SUPPRESSION, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

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PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this psychiatric malpractice case should not have been granted. Plaintiffs’ expert found fault in, inter alia, defendants’ failure to document suicide assessments. Plaintiffs’ decedent committed suicide shortly after the defendant psychiatrists, Roberts and Decker, saw her:

Plaintiffs submitted the factually specific affidavit of a psychiatrist who, relying upon the foregoing, opined that Roberts deviated from the minimum standard of care in failing to document a proper suicide risk assessment and then discharging decedent without ensuring that she obtain psychotherapy and medication management within two days … . * * *

Plaintiffs’ expert psychiatrist opined that Decker fell short of the minimum standard of care by failing to properly conduct and document a suicide risk assessment of decedent, who was experiencing triggering anxiety and untreated depression. The psychiatrist further opined that Decker departed from the minimum standard of care in placing medication adjustment and psychotherapy on hold in the expectation that a “severely compromised” person would provide more information on an inpatient treatment facility that she was curious about. Tkacheff v Roberts, 2017 NY Slip Op 01429, 3rd Dept 2-23-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/MEDICAL MALPRACTICE (PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EVIDENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/EXPERT OPINION (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/PSYCHIATRISTS (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)/SUICIDE (MEDICAL MALPRACTICE, PLAINTIFFS’ DECEDENT COMMITTED SUICIDE SHORTLY AFTER DEFENDANT PSYCHIATRISTS SAW HER, PLAINTIFFS’ EXPERT RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS DEVIATED FROM THE MINIMUM STANDARD OF CARE)

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DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED; PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER.

The Third Department, reversing defendant’s conviction, determined the trial judge erred when the full circumstantial evidence jury instruction was not given. There was no direct evidence identifying defendant as the robber of the victim, who was sitting in his car at the time he was robbed. Blood matched to the defendant by DNA evidence was found on the handle of the door of the victim’s car. The Third Department also noted that the prosecutor exceeded the bounds of acceptable commentary during summation when he told the jury the blood on the victim’s car belonged to the robber:

Contrary to the People’s assertion, this was not a case “where both direct and circumstantial evidence [were] employed to demonstrate . . . defendant’s culpability[,] thereby negating the need for the [requested] charge” … . While there indeed is no question — based upon the victim’s testimony and the photographic evidence contained in the record — that the charged crimes did in fact occur, the record makes clear — and the People readily concede — that there was no direct evidence identifying defendant as the perpetrator. In this regard, while the People are correct that a DNA match “can provide strong evidence of a person’s presence at and participation in a criminal act” … , a defendant’s mere presence at the scene of the crime in close temporal proximity to its commission does not establish his or her identity as the perpetrator … . Simply put, where there is no direct evidence linking the defendant to the charged crimes, courts consistently have required that a circumstantial evidence charge be given … . As the People’s proof relative to the identity of the perpetrator here was entirely circumstantial, Supreme Court should have granted defendant’s request to charge the jury accordingly; moreover, as the proof against defendant was less than overwhelming, we cannot deem the court’s failure to grant the requested charge to be harmless error … . People v James, 2017 NY Slip Op 01409, 3rd Dept 2-23-17

CRIMINAL LAW (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/ATTORNEYS (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/PROSECUTORIAL MISCONDUCT (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/DNA (CRIMINAL LAW, (DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW,  DNA EVIDENCE WAS STRONG EVIDENCE DEFENDANT WAS THE ROBBER, DESPITE THE DNA MATCH, THE FULL CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, NEW TRIAL ORDERED, PROSECUTOR’S STATEMENT IN SUMMATION THAT THE BLOOD BELONGED TO THE ROBBER WAS IMPROPER)

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PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT SUBSTANTIALLY WEAKENED BUT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION; DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION.

The Third Department, reversing defendant’s conviction, determined the People should not have been allowed to impeach their own witness (Abellman) with a prior inconsistent statement which did not contradict the People’s theory of prosecution and the trial judge should have instructed the jury on circumstantial evidence:

Abellman indicated in a written statement to investigators and testimony before the grand jury that defendant was his heroin supplier and that defendant’s heroin was stashed at the apartment. Abellman testified at trial, however, that he did not know defendant, had never bought drugs from defendant and did not recall ever having been to the apartment. * * * … [T]he People extensively questioned Abellman regarding his prior statements by asking if he recalled previously saying, among other things, that defendant supplied him with heroin and that he and defendant frequently went to the apartment to bag heroin and cocaine for sale.

While “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching [a] witness’s credibility with respect to his or her testimony,” it is inadmissible where “the testimony of the witness ‘does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony'” … . Abellman’s trial testimony falls into the latter category, as he did not call defendant’s connection to the heroin into question and only maintained that he had no knowledge of whatever connection there might be. This claimed lack of knowledge “merely failed to corroborate or bolster the [People]’s case” and did not affirmatively “contradict or disprove” evidence presented by them … . …

There was direct evidence of defendant’s dominion and control over the apartment [where the herein was found] but, as things ultimately stood, proof of his dominion and control over the heroin and related items was circumstantial. County Court was obliged to, but did not, give a circumstantial evidence charge to the jury under these circumstances … . People v Gaston, 2017 NY Slip Op 01411, 3rd Dept 2-23-17

 

CRIMINAL LAW (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/EVIDENCE (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, EOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CONSTRUCTIVE POSSESSION (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/IMPEACHMENT (CRIMINAL LAW, PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)/CIRCUMSTANTIAL EVIDENCE (CRIMINAL LAW, (PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THEIR OWN WITNESS WITH A PRIOR INCONSISTENT STATEMENT THAT DID NOT CONTRADICT THE PEOPLE’S THEORY OF PROSECUTION, DESPITE DIRECT EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OVER APARTMENT WHERE HEREOIN WAS FOUND, THE EVIDENCE DEFENDANT POSSESSED THE HEREOIN WAS CIRCUMSTANTIAL, THE JURY SHOULD HAVE BEEN GIVEN THE CIRCUMSTANTIAL EVIDENCE INSTRUCTION)

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SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND.

The Second Department determined Supreme Court should not have imposed sanctions on defendants in this medical malpractice action. The action was premised on the failure of a suture which had to be repaired by a subsequent surgery. The suture at issue was thrown away at the time of the second surgery. Plaintiff failed to demonstrate the defendants threw away the suture with a culpable state of mind:

“A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind,’ and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense'” … . Where evidence has been intentionally or willfully destroyed, its relevance is presumed … . However, where evidence has been destroyed negligently, the party seeking spoliation sanctions must establish that the destroyed evidence was relevant to the party’s claim or defense … . * * *

… Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion to impose sanctions against the defendants for the wilful spoilation and destruction of evidence, as the plaintiff failed to demonstrate that the defendants were obligated to preserve the broken suture at the time of its destruction, that the suture was destroyed with a “culpable state of mind,” and/or that the destroyed suture was relevant to the plaintiff’s claim … . In any event, the plaintiff failed to establish that the defendants were on notice that the suture might be needed for future litigation … . Golan v North Shore-Long Is. Jewish Health Sys., Inc., 2017 NY Slip Op 01342, 2nd Dept 2-22-17

 

NEGLIGENCE (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/MEDICAL MALPRACTICE (EVIDENCE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/EVIDENCE (MEDICAL MALPRACTICE, SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)/SPOLIATION (SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN IMPOSED, NO SHOWING EVIDENCE WAS DESTROYED WITH A CULPABLE STATE OF MIND)

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NO PROOF DEFENDANT INTENDED TO PERMANENTLY, AS OPPOSED TO TEMPORARILY, DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED.

The Second Department reversed defendant’s attempted robbery convictions as against the weight of the evidence. Defendant, covered in blood, approached the complainant’s car, asked to be taken to the hospital, and then tried to open the car door. That proof was insufficient to demonstrate larcenous intent, which is the intent to permanently deprive someone of his or her property:

“In order to sustain a conviction for robbery . . . the People must establish that defendant had the requisite intent—that is, larcenous intent. Larcenous intent means the intent to deprive another of property or to appropriate the same to himself or to a third person'” … . The terms “deprive” and “appropriate” are specifically defined in Penal Law § 155.00(3) and (4), respectively, and connote a purpose “to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof” … . Thus, “[t]he mens rea element of larceny . . . is simply not satisfied by an intent temporarily to use property without the owner’s permission, or even an intent to appropriate outright the benefits of the property’s short-term use” … . People v Terranova, 2017 NY Slip Op 01390, 2nd Dept 2-22-17

CRIMINAL LAW (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/LARCENOUS INTENT (CRIMINAL LAW, ROBBERY, NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)/ROBBERY (NO PROOF DEFENDANT INTENDED TO PERMANENTLY DEPRIVE COMPLAINANT OF POSSESSION OF HIS CAR, ATTEMPTED ROBBERY CONVICTIONS REVERSED)

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PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE.

The Second Department determined Supreme Court properly excluded a purported copy of a guaranty from evidence and properly dismissed the complaint which sought enforcement of the guaranty. The purported original guaranty was incomplete and was withdrawn as evidence:

Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents … . However, the proponent of the secondary evidence has a “heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … . “Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original’ before ruling on its admissibility” … .

Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty … , it failed to meet its heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original … . The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a) … . 76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329, 2nd Dept 2-22-17

 

CONTRACT LAW (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/GUARANTY (EVIDENCE, PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/EVIDENCE (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)

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PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION.

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined Supreme Court properly denied the defendants’ motion for summary judgment in this medical malpractice action. The dissent found the plaintiffs’ experts’ opinions too speculative to raise a question of fact. The opinion is fact-specific and cannot be fairly summarized here:

In sum, defendants submitted expert affirmations that established prima facie that they did not depart from good and accepted medical practice or that any such departure was not a proximate cause of [plaintiff’s]  injuries … . In opposition, plaintiffs submitted expert opinions that raised issues of fact as to the following alleged departures: the premature release of [plaintiff] from postanesthesia care unit, the failure to identify and treat his overdose or adverse reaction to morphine, and the failure to timely respond to his cardiorespiratory arrest … . Severino v Weller, 2017 NY Slip Op 01325, 1st Dept 2-21-17

NEGLIGENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EVIDENCE (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, (PLAINTIFFS’ EXPERTS RAISED ISSUES OF FACT REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION)

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