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DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have granted plaintiffs’ motion to set aside the verdict in this medical malpractice action. The defendants’ notice of the expert opinion evidence to be presented at trial did not notify plaintiffs that the expert would testify plaintiff’s stroke was caused by a piece of calcium, not a blood clot. Plaintiffs’ malpractice theory was based entirely on the allegation a blood clot was the cause of the stroke. The court explained the notice requirements:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict in favor of [defendants] and against the plaintiffs on the issue of liability. Pursuant to CPLR 3101(d)(1)(i), [defendants] were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, . . . and a summary of the grounds for each expert’s opinion.” Here, [the] expert witness disclosure only revealed expert testimony that [plaintiff’s] stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification. [Defendant] failed to demonstrate good cause for not disclosing the substance of his expert’s causation theory until trial … . The revelation of the defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because they did not have adequate time to consult or retain an expert neuroradiologist … . Rocco v Ahmed, 2017 NY Slip Op 00207, 2nd Dept 1-11-17

NEGLIGENCE (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRCTICE (DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, NOTICE OF EXPERT OPINION, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EXPERT OPINION (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)

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DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant bus driver’s motion for summary judgment in this intersection accident case was properly denied. Although the bus driver had the right of way, she did not demonstrate freedom from comparative fault:

At the time of the collision, the defendants’ bus was in the process of making a left turn from Hillside Avenue onto Merrick Boulevard from a left turn only lane, and the plaintiff was going straight in the opposite direction on Hillside Avenue. …

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident … . While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, the operator traveling with the right-of-way nevertheless has a duty to use reasonable care to avoid colliding with other vehicles … .

Here, the defendants failed to eliminate all triable issues of fact, including whether Coleman contributed to the happening of the accident by failing to observe the plaintiff’s vehicle as he approached the intersection … . Blair v Coleman, 2017 NY Slip Op 00143, 2nd Dept 1-11-17

NEGLIGENCE (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/INTERSECTIONS (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/COMPARATIVE NEGLIGENCE  (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER.

The Second Department determined the plaintiff driver of a car (Ahmed) was not entitled to summary judgment even though his passenger (Olga) was. Plaintiff driver did not demonstrate freedom from comparative fault in this intersection accident:

“[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way” … . Olga’s affidavit, submitted on behalf of both plaintiffs, failed to establish that Ahmad was free from comparative fault in the happening of the accident … . Since Ahmad failed to meet his prima facie burden for summary judgment … , that branch of the plaintiffs’ motion which was for summary judgment on his behalf against … was properly denied without regard to the sufficiency of the opposition papers … . Al-Mamar v Terrones, 2017 NY Slip Op 00140, 2nd Dept 1-11-17

NEGLIGENCE (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/EVIDENCE (TRAFFIC ACCIDENT, COMPARATIVE FAULT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/COMPARATIVE FAULT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/SUMMARY JUDGMENT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED.

The First Department, partially reversing Supreme Court, determined defendants demonstrated they did not have constructive notice of a wet condition where plaintiff fell, but the cause of action based on the absence of a handrail should not have been dismissed:

Defendants established their prima facie entitlement to summary judgment by demonstrating that it had rained shortly before or at the time of plaintiff’s accident and continued shortly afterward, that they did not have constructive notice of the wet condition, as defendants’ porter averred that he had inspected the stairs 15 minutes prior to plaintiff’s fall and did not observe any wet condition, and they had no complaints of wetness prior to plaintiff’s fall. Moreover, defendants had a doormat in the vestibule to permit people to wipe their feet as they entered … .  In opposition, plaintiff did not submit any evidence as to the time elapsed between the cessation of the rain and his accident, and thus failed to raise an issue of fact as to whether defendants had a reasonable amount of time to remedy the wet condition … .

The court, however, improperly dismissed plaintiff’s claim that defendants failed to install handrails on the subject staircase. The stairs which led to the door providing egress from the building to the outside were interior stairs requiring handrails (Administrative Code §§ 27-232, 27-375 …). Plaintiff raised an issue of fact as to whether the absence of handrails was a proximate cause of his fall by submitting his expert’s affidavit stating that the absence of handrails was a dangerous departure from accepted standards and the applicable building code … . Lee v Alma Realty Corp., 2017 NY Slip Op 00101, 1jst Dept 1-10-17

 

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/STORM IN PROGRESS (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/ADMINISTRATIVE CODE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/HANDRAILS (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)/NOTICE (SLIP AND FALL, (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF WET CONDITION WHERE PLAINTIFF FELL, CAUSE OF ACTION BASED ON ABSENCE OF A HANDRAIL SHOULD NOT HAVE BEEN DISMISSED)

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SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an unsecured ladder while attempting to move to a baker’s scaffold. Unverified documents contesting plaintiff’s allegations were not sufficient to defeat summary judgment:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1), through his affidavit stating that he was not provided with any safety equipment that could have protected him while performing his work alone on the ladder and scaffold … . Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is inescapable under Labor Law § 240(1) … . Thus, in opposition, defendants were required to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact to preclude summary judgment … . * * *

Records without proper certification may be considered in opposition to a motion for summary judgment, but only when they are not the sole basis for the court’s determination … . Here, the unverified documents and unsworn statement are the only evidence to challenge details of plaintiff’s version of the accident and therefore should not be considered. Erkan v McDonald’s Corp., 2017 NY Slip Op 00099, 1st Dept 1-10-17

 

LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/SUMMARY JUDGMENT (EVIDENCE, UMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)

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TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA.

The Third Department, reversing defendant’s conviction, determined the motion to suppress drugs seized from defendant’s car should have been granted. The deputy stopped defendant’s car based solely on a temporary inspection sticker without any suspicion of criminal behavior. The court noted that the denial of the suppression motion was appealable because defendant did not waive his right to appeal, and the harmless error standard applied because defendant pled guilty after the motion was denied:

The deputy candidly admitted that he had no idea whether the sticker was valid when he made the stop, nor did he indicate that the temporary sticker gave him any other reason for suspicion. He instead stated that his “general practice” was to stop any vehicle he encountered with a temporary inspection sticker in order to “ensure [that the sticker had] not expired.” It is entirely proper to operate a motor vehicle with a temporary inspection sticker under certain circumstances and, as a result, the display of one does not constitute grounds for a traffic stop absent a “specific articulable basis” to believe that illegality is afoot … . The practice of stopping any vehicle with a temporary inspection sticker, without more, represents impermissible “idle curiosity” as to the sticker’s validity rather than the “reasonable suspicion” of illegality needed to effect a traffic stop … . People v Driscoll, 2016 NY Slip Op 08902, 3rd Dept 12-29-16

CRIMINAL LAW (TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)/SUPPRESS, MOTION TO (TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)/STREET STOPS (TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)/SEARCH AND SEIZURE (TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)/APPEALS (CRIMINAL, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)/EVIDENCE (CRIMINAL LAW, TEMPORARY INSPECTION STICKER NOT SUFFICIENT TO JUSTIFY TRAFFIC STOP, DRUGS SEIZED FROM DEFENDANT’S CAR SHOULD HAVE BEEN SUPPRESSED, HARMLESS ERROR STANDARD APPLIES TO APPEALS AFTER A GUILTY PLEA)

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EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED.

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined the emergency doctrine did not justify entrance into the home where hand grenades, guns, forged gun permits, explosives, marijuana and forged currency were seized. The police had responded to a silent alarm and found defendant working on a car outside the home. After questioning the defendant, the defendant unlocked to door of the home (to show the police he had keys to the home). When the defendant attempted to go inside and shut the door, the police pushed their way in and saw two hand grenades and a gun:

In the evaluation of whether a warrantless entry was justified under the “emergency doctrine,” the evidence must establish as a threshold matter that the police had “an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid” … . Under the Fourth Amendment, the officers’ subjective belief is irrelevant: “[a]n action is reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action'” … .

Here, the evidence at the suppression hearing fell short of the required threshold showing because it did not establish that the circumstances known to the police when they entered the house supported an objectively reasonable belief that entry was needed to render emergency assistance to an injured occupant or to protect an occupant from imminent injury … . The police were responding, in the early afternoon, to the type of notification that, in their experience, was usually a false alarm, not an emergency. Indeed, the People agree that the triggering of the alarm did not in itself permit the police to enter the house under the emergency doctrine. When the police arrived, they found the defendant, a middle-aged man, openly working on a van in the driveway. He had a key to the house. He explained his connection to the house, and he gave the police his phone so his sister could corroborate what he said. Moreover, there was no sign of a break-in. Neither of the police officers testified that he had any inkling that there were guns and other weaponry in the house. Their testimony was about their concern for the possible safety of anyone who might be in the house. Nothing, however, supported an objectively reasonable belief that “there was an emergency at hand requiring the immediate assistance of the police in order to protect life or property” … . Indeed, the facts known to the officers fell far short of the circumstances under which the emergency doctrine has been held applicable … . Simply put, this warrantless entry under the emergency doctrine was “unreasonable” (US Const Amend IV), because no facts then known supported a reasonable belief of an emergency. People v Ringel, 2016 NY Slip Op 08887, 2nd Dept 12-28-16

 

CRIMINAL LAW (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/EVIDENCE (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/SUPPRESS, MOTION TO (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/SEARCH AND SIEZURE (EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)/EMERGENCY DOCTRINE (CRIMINAL LAW, EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED)

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VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS.

The Second Department determined the prosecutor’s violation of the Sandoval ruling required reversal. Defendant was charged with attempted burglary. The court ruled the defendant could be cross-examined about petit larceny and burglary convictions, but only to the extent he could be question about unspecified misdemeanor and felony convictions. When defendant testified he was repeatedly asked whether he had ever walked into a building which was closed to the public. The Second Department held that defendant had not opened the door to that line of questioning:

On cross-examination, the defendant testified that there were times in the past when he had been intoxicated and “ended up in the bushes” or “in the park” and that it was possible for a drunk person to end up in someone’s backyard. The prosecutor questioned the defendant as to other places he had been in the past, specifically asking if he had ever “enter[ed] a building that [he] had no permission to go?” The defendant initially denied entering a building, but after further questioning, which the Supreme Court allowed over defense counsel’s objection, he admitted that he had walked into a store that was closed but had people in it. The prosecutor pressed further, and later asked the defendant, “Have you ever walked into a building that was completely closed to the public with no people inside of that building?” and the defendant responded, “I don’t recall.” The prosecutor then asked if he had been convicted of a felony and the defendant replied affirmatively. The record reflects more than a half a dozen occasions when the People clearly violated the court’s Sandoval ruling by repeatedly questioning the defendant concerning the underlying facts of his prior burglary conviction.

Defendants who take the witness stand, like other witnesses, place their credibility in issue and, thus, may be cross-examined about past criminal or immoral acts relevant to their credibility … . The policy underlying Sandoval is that the accused has the right to make an informed choice concerning whether he or she should take the witness stand … . Thus, in the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good-faith reliance on the court’s pretrial ruling … . The defendant in this case was denied that right when, after making what he believed to be an informed judgment and taking the witness stand, the Supreme Court implicitly changed the ruling upon which he relied by allowing the prosecutor to continue her course of prejudicial questioning despite repeated objections from defense counsel. The court’s implicit change in its ruling after the defendant had already taken the witness stand deprived the defendant of a fair trial … . People v Mohamed, 2016 NY Slip Op 08885, 2nd Dept 12-28-16

 

CRIMINAL LAW (VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/EVIDENCE (CRIMINAL LAW, VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/SANDOVAL RULING (VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/CROSS-EXAMINATION (CRIMINAL LAW, VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)

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INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY.

The Fourth Department determined the trial testimony rendered a count of the indictment duplicitous and dismissed it:

We agree with defendant that the third count of the indictment, charging defendant with engaging in anal sexual contact with the complainant by forcible compulsion, was rendered duplicitous by the complainant’s testimony … . The complainant testified that the acts of anal sexual contact occurred “more than once” over the course of a two-hour incident, and, contrary to the People’s contention, such acts did not constitute a continuous offense … , but rather were separate and distinct offenses … . People v Cox, 2016 NY Slip Op 08661, 4th Dept 12-23-16

CRIMINAL LAW (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/INDICTMENTS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/EVIDENCE (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/DUPLICITOUS (INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)/SEXUAL ACT (CRIMINAL LAW, (INDICTMENT COUNT CHARGING CRIMINAL SEXUAL ACT RENDERED DUPLICITOUS BY TRIAL TESTIMONY)

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DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL.

The Fourth Department, reversing defendant’s convictions for criminal possession of a weapon, determined: (1) defendant was deprived of her right to present a defense when the court precluded questions that could reveal the complainant’s motive to lie; (2) prosecutorial misconduct warranted reversal (considered in the interest of justice; (3) allowing the prosecutor to cross-examine defendant about her failure to turn herself in warranted reversal (considered in the interest of justice); and (4) allowing a witness to refer to defendant as a drug dealer warranted reversal (considered in the interest of justice). With respect to the right to present a defense, the court wrote:

… [W]e conclude that defendant was improperly precluded from establishing that the complainant was engaged in a criminal enterprise and regularly purchased crack cocaine—therefore having good reason to possess a gun as compared to defendant. More importantly, that evidence, if credited by the jury, would demonstrate that the complainant had every reason to fabricate the story that the gun belonged to defendant and not her … . In addition, we conclude that the proffered evidence was admissible to complete the narrative of events, i.e., to provide background information as to how and why the complainant allegedly confronted defendant, and to explain the aggressive nature of the confrontation … . Applying those principles here, we conclude that defendant was denied her constitutional right to present a defense … . People v Horton, 2016 NY Slip Op 08727, 4th Dept 12-23-16

CRIMINAL LAW (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/DEFENSE, RIGHT TO PRESENT (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/PROSECUTORIAL MISCONDUCT (DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)/EVIDENCE (CRIMINAL LAW, DEPRIVING DEFENDANT OF HER RIGHT TO PRESENT A DEFENSE BY DEMONSTRATING THE COMPLAINANT HAD A MOTIVE TO LIE, PROSECUTORIAL MISCONDUCT, CROSS-EXAMINATION ABOUT DEFENDANT’S FAILURE TO TURN HERSELF IN, AND ALLOWING A WITNESS TO TESTIFY DEFENDANT WAS A DRUG DEALER, ALL WARRANTED REVERSAL)

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