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WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED.

The Second Department, reversing Family Court, determined the finding that appellant, had he been an adult, would have committed criminal possession of a weapon (and related offenses) was against the weight of the evidence. The Second Department clearly explained its role in a weight of the evidence review and essentially rejected the testimony of the arresting officers:

 

In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record; independently assess all of the proof; substitute our own credibility determinations for those made by the Family Court in an appropriate case; determine whether the Family Court’s determination was factually correct; and acquit the appellant if we are not convinced that the Family Court’s adjudication of the appellant as a juvenile delinquent was proven beyond a reasonable doubt … . * * *

The reasonable inferences to be made from the officers’ collective testimony were that at least two other individuals were with the appellant at the time of his arrest and, contrary to the initial testimony that the appellant was the only person observed in the area of the firearm, multiple individuals were in the vicinity of the firearm at the relevant time.

In addition, when the appellant was brought to the precinct, he denied possessing the firearm and asked Officer Thomas to check to see if there were cameras in the area of the incident. Officer Thomas testified that at the end of his shift on the date in question, he returned to the scene and viewed surveillance video from a store in the area. However, he did not take notes or ask for a copy of the video, and he “completely forgot to notify anybody” of his investigation or record it in his memo book. At the time of the fact-finding hearing, he could not recall whether the video he viewed depicted the street at the relevant time. Matter of Trevor S., 2016 NY Slip Op 05574, 2nd Dept 7-20-16

 

FAMILY LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/EVIDENCE (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/CRIMINAL LAW (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/APPEALS (JUVENILE DELINQUENCY, WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)/JUVENILE DELINQUENCY (WEIGHT OF THE EVIDENCE REVIEW RESULTED IN REVERSAL IN THIS JUVENILE DELINQUENCY PROCEEDING, TESTIMONY OF POLICE OFFICERS REJECTED)

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HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED.

The Third Department reversed Family Court, finding that the hearsay evidence of the child’s statement father had touched her were not corroborated and therefore could not form the basis of a modification of custody:

Evidence of the abuse came in the form of the child’s out-of-court statements and, inasmuch as “the evidentiary standards established in Family Ct Act article 10” were applicable under these circumstances, the question became whether her statements were “sufficiently corroborated” so as to be admissible … . The mother testified that the child stated that the father had touched her, then acted out an incident of sexual abuse. The child also told her therapist that the father had touched her, but the therapist testified that the child declined to give details about the incident and did not opine that the child’s behavior was indicative of sexual assault or that there was reason to believe that her statements were truthful. The therapist expressly declined to offer such an opinion in her testimony, in fact, making clear that she would not say whether the child’s claims were “true or untrue.” The child herself did not testify, and Family Court rejected the belated requests of counsel for the father and the child for a Lincoln hearing.

The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” … , but mere “repetition of an accusation” will not suffice … . The proof here did not rise above repetition to include additional evidence such as expert testimony that the child’s behavior or her statements were consistent with abuse, physical evidence of abuse, or the sworn testimony or in camera statements of the child herself … . Matter of Leighann W. v Thomas X., 2016 NY Slip Op 05522, 3rd Dept 7-14-16

 

FAMILY LAW (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/HEARSAY (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CUSTODY (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CORROBORATION (FAMILY LAW, (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)

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SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.

 

The Third Department, reversing defendant’s conviction, determined the police did not have justification for searching defendant’s duffel bag and the evidence seized from the bag should have been suppressed. Defendant was arrested in his residence on an outstanding warrant. The defendant was handcuffed when the duffel bag was retrieved by a police officer (Gillis) from behind the couch:

To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . Two interests underlie the exigency requirement: “‘the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment'” … .

The People failed to establish the existence of exigent circumstances justifying the search of defendant’s duffel bag. Gillis testified that the bag was still against the wall when defendant was handcuffed and personally searched pursuant to the outstanding warrant, and Gillis had to physically retrieve the bag from behind the couch in order to search it. In addition, the officers had searched the residence prior to arresting defendant and did not find any evidence of drug activity or paraphernalia, the owner told Gillis that there was nothing illegal in the apartment and defendant denied that there was contraband in the bag when questioned about its contents. Thus, the search of the subject bag was improper and its contents — namely, crack cocaine, cell phones and train tickets — should have been suppressed … . People v Ortiz, 2016 NY Slip Op 05521, 3rd Dept 7-14-16

 

CRIMINAL LAW (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SUPPRESSION (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SEARCH AND SEIZURE  (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/CLOSED CONTAINERS (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)

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EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED.

The Third Department, reversing defendant’s conviction, determined evidence of a prior sexual assault, factually similar to the charged offenses, should not have been admitted in the People’s direct case. The victim of the prior assault testified in detail about it. The Third Department held that the prejudicial effect of the prior assault outweighed its probative value, irrespective of whether the evidence fit any Molineux exception to the rule excluding evidence of prior crimes:

… “[E]vidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness’s narrative and, further, the trial court determines that the probative value of such evidence outweighs is prejudicial effect” … . Here, even assuming, without deciding, that the previous victim’s testimony at trial and the corresponding photographs fall within one or more of the aforementioned Molineux exceptions, we agree with defendant that the prejudicial effect of such evidence far outweighs its probative value and, therefore, the People should not have been permitted to introduce such evidence on their case-in-chief. People v Ward, 2016 NY Slip Op 05518, 3rd Dept 7-14-16

CRIMINAL LAW (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/PRIOR CRIMES (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED/MOLINEUX (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS.

The Second Department determined father was entitled to a hearing on mother’s petition to enforce college expense provisions of a stipulation of settlement. The support magistrate considered affidavits and exhibits submitted after the hearing by mother, depriving father of his right to cross-examine and object:

Family Court Act § 433(a) requires that a respondent “shall be given opportunity to be heard and to present witnesses.” A hearing must consist of an adducement of proof coupled with an opportunity to rebut it … . Here, the Support Magistrate erred in considering the mother’s affidavits and unverified financial information, rather than testimony supported by appropriate documentary evidence, in determining the mother’s petition … . As the father was deprived of the opportunity to rebut the mother’s affidavits and exhibits, the matter must be remitted to the Family Court … for a new hearing and determination on the mother’s petition … . Matter of Hezi v Hezi, 2016 NY Slip Op 05498, 2nd Dept 7-13-16

 

FAMILY LAW (SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)/EVIDENCE (FAMILY COURT, SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)

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POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE.

The Second Department reversed defendant’s conviction as against the weight of the evidence, essentially finding the police officer’s testimony incredible:

Here, an acquittal would not have been unreasonable, particularly in light of objective facts—including the arresting officer’s failure to record the arrest in his memo book, his failure to call in the arrest, his failure to voucher the bandanas or masks, and the loss of the case folder containing the original of the defendant’s written statement and signed Miranda waiver—all of which cast doubt on the arresting officer’s credibility … . Moreover, the defendant testified at trial to a completely different version of events, including that he and his companion were not wearing masks or bandanas and he did not possess a gun or any marihuana. The defendant’s credibility was supported by the testimony of three character witnesses regarding his propensity for truthfulness, and no evidence was elicited to undermine the defendant’s credibility. Notably, the defendant had no prior history of arrests and had been gainfully employed by the same employer for seven years. Further, the defendant’s companion, who also had no history of prior arrests and had been gainfully employed for six years, testified to the same version of events as the defendant. Upon the exercise of our factual review power (see CPL 470.15), we find that the rational inferences which can be drawn from the evidence presented at trial do not support the conviction beyond a reasonable doubt … . People v Oneill, 2016 NY Slip Op 05510, 2nd Dept 7-13-16

CRIMINAL LAW (POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, POLICE OFFICER’S TESTIMONY INCREDIBLE AND UNSUPPORTED BY ANY EVIDENCE, CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE

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SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED.

The Second Department determined the show up identification 30 minutes after the crime was not unduly suggestive and should not have been suppressed:

Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness … . The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive … . People v Huerta, 2016 NY Slip Op 05508, 2nd Dept 7-13-16

CRIMINAL LAW (SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/IDENTIFICATION (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)/SHOWUP (CRIMINAL LAW, SHOWUP IDENTIFICATION WAS NOT UNDULY SUGGESTIVE AND SHOULD NOT HAVE BEEN SUPPRESSED)

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NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF ARRESTING OFFICER REVERSED.

The Third Department reversed, in the interest of justice, defendant’s conviction for assault of a police officer (Smith) because the officer did not have reasonable suspicion defendant had committed a crime at the time defendant was detained. Defendant was involved in an argument with someone when the police approached and did not answer the officer’s questions:

Viewing the evidence in the light most favorable to the People … , we find no valid line of reasoning and permissible inferences from which a rational jury could have concluded that Smith possessed the requisite reasonable suspicion of criminality necessary to forcibly detain defendant. As defendant’s subsequent conduct in assaulting Smith “cannot validate an encounter that was not justified at its inception” … , the evidence was legally insufficient to establish that Smith was injured while undertaking a lawful duty, and defendant’s conviction must be reversed … . People v Tucker, 2016 NY Slip Op 05400, 3rd Dept 7-7-16

CRIMINAL LAW (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/REASONABLE SUSPICION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/STREET STOPS  (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/SUPRESSION (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF POLICE OFFICER REVERSED)/POLICE OFFICERS (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSUALT OF A POLICE OFFICER REVERSED)/RESISTING ARREST (NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)/EVIDENCE (CRIMINAL LAW, NO JUSTIFICATION FOR FORCIBLE DETENTION, CONVICTION FOR ASSAULT OF POLICE OFFICER REVERSED)

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EVIDENCE COLLECTED AFTER REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Third Department determined statements made by and evidence collected from defendant after his request for counsel should have been suppressed in this vehicular homicide case. A new trial was ordered;

The People further conceded at oral argument that defendant invoked his constitutional and limited statutory right to counsel in response to those warnings and that, under the circumstances of this case, valid grounds existed to suppress his post-invocation statements and evidence related to the DRE [drug recognition evaluation], second breathalyzer and blood tests … . The erroneous admission of this evidence is reviewed under the harmless error doctrine, and such an error is considered harmless “when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . The admissible evidence at trial established that defendant took twice his prescribed dosage of Clonazepam the morning of the accident and that he failed field sobriety tests administered at the scene. Nevertheless, inasmuch as defendant’s inadmissible statements, the recording of the DRE test and the evidence of the inadmissible test results themselves may well have contributed to the conviction, it cannot be said that the erroneous admission of that evidence was harmless … . People v Green, 2016 NY Slip Op 05399, 3rd Dept 7-7-16

 

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SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

The Second Department determined criminal contempt charges rendered the indictment multiplicitous. The charge offense was a continuing offense and there was no interruption in the course of conduct:

An indictment is multiplicitous ” when a single offense is charged in more than one count'” … . In addition, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant’s repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b][iv]). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct … . People v Young, 2016 NY Slip Op 05395, 2nd Dept 7-6-16

CRIMINAL LAW (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/EVIDENCE (CRIMINAL LAW, SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/MULTIPLICITOUS INDICTMENT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/INDICTMENTS (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTINUING OFFENSE (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTEMPT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)

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