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DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT.

The Court of Appeals determined Supreme Court erred when it held petitioner (Henry, an inmate charged with participating in an assault) had not preserved evidentiary issues for review. Henry had requested certain documents and witness-testimony which were not provided. The Court of Appeals found the denial of Henry’s requests was preserved despite his failure to specifically object during the hearing:

An inmate charged with violating a prison regulation is entitled to due process protections which include a right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals” … . Contrary to the conclusion of the Appellate Division, Henry cannot be deemed to have waived his challenges simply because he failed to make specific objections at the hearing.

In sum, the record shows that Henry plainly requested access to specific documents and witnesses, and the Hearing Officer denied some of those requests. In light of the denial of Henry’s requests, the courts below erred in determining that Henry’s failure to specifically object to the Hearing Officer’s unfavorable rulings constituted a failure to preserve those rulings for judicial review. Matter of Henry v Fischer, 2016 NY Slip Op 08395, CtApp 12-15-16

 

DISCIPLINARY HEARINGS (INMATES) (DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/APPEALS (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)

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THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES.

The Court of Appeals determined the trial court did not err when it admitted the three-year-old victim’s statements (and gestures) made within half an hour of the sexual abuse as excited utterances. The same statements made at the hospital three hours later may not have been admissible as excited utterances, but any error in admitting them was deemed harmless:

We discern no error in the admission of the child’s initial statements to her mother and father as excited utterances. The evidence established that the child was in a highly emotional state when she first stepped off the bus and that she continued to cry inconsolably as she uttered the phrase “Señor Bus” to her mother and father at home and made a licking gesture with her tongue. Those statements were made within a half hour of the startling event, while the child was still under the stress of excitement, and therefore were properly admitted at trial … .

The child repeated the same phrase and gesture to her parents three hours later at a hospital and also pulled her mother’s hand to the child’s genital area. Even accepting defendant’s contention that the stress of excitement had sufficiently abated by the time the child made those later statements, any error in their admission was harmless … . Forensic testing confirmed the presence of defendant’s DNA in the child’s underwear, and the bus matron provided unrefuted testimony that defendant had altered his bus route in such a way that the child was alone with defendant for approximately thirty minutes on the day of the incident. Additionally, the child’s mother testified that the child ran into the house screaming and crying as soon as she got off the bus, and that the child’s underwear had been pulled down and were bunched up inside the leg of her pants. The emergency room doctor found redness and a sore on the child’s genital area that he believed were the result of external trauma, i.e., touching. People v Hernandez, 2016 NY Slip Op 08396, CtApp 12-15-16

 

CRIMINAL LAW (THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EVIDENCE (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/HEARSAY (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)/EXCITED UTTERANCES (CRIMINAL LAW, THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES)

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STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE.

The First Department determined that a statement by an unidentified bystander, audible on the 911 call, was properly admitted as an excited utterance. The court noted that another judge, who became ill, had ruled the statement inadmissible. Because it was an evidentiary ruling, it was not subject to the law of the case doctrine:

The court providently admitted, as an excited utterance, the statement of an unidentified bystander, audible on the 911 call made by one of the victims, that implicated defendant. All of the circumstances — most significantly that the statement was made immediately after the shooting — established a strong likelihood that the declarant observed the shooting … .

Although a contrary ruling on the excited utterance issue had been made by a previous judge, who presided over part of jury selection but was unable to continue because of illness, this circumstance did not foreclose the successor judge’s ruling by operation of the law of the case doctrine. The ruling was evidentiary and did not fall within the ambit of that doctrine (see People v Evans , 94 NY2d 499 [2000]). Defendant does not dispute that this was the type of ruling that, under Evans , may be revisited by a successor judge in a retrial. We see no reason to apply a different rule where there are successive judges in the same trial … . People v Cummings, 2016 NY Slip Op 08298, 1st Dept 12-8-16

CRIMINAL LAW (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EVIDENCE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/EXCITED UTTERANCE  (STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/HEARSAY (EXCITED UTTERANCE, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE DOCTRINE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)/CIVIL PROCEDURE (CRIMINAL LAW, STATEMENT BY UNIDENTIFIED BYSTANDER, AUDIBLE ON THE 911 CALL, ADMISSIBLE, EVIDENTIARY RULINGS ARE NOT SUBJECT TO THE LAW OF THE CASE DOCTRINE)

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TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL.

The Third Department, over a two-justice dissent, determined the probation violation petition gave sufficient notice of the charges and a woman (Nichols) who had been convicted of misdemeanor DWI was a “convicted criminal” within the meaning of a condition of probation (prohibiting association with convicted criminals). The court held that it was not necessary to prove petitioner knew of the DWI conviction. The probationer apparently went to the Nichol’s apartment for the purpose of taking a dog for a walk. The dissent argued that simply taking a dog for a walk  was not “contact” or “association” with a convicted criminal:

Special condition No. 17 required defendant to refrain from associating with “convicted criminals” — as opposed to “known criminals.” Accordingly, defendant cannot avoid a violation of the subject condition simply by claiming either that he did not know that a particular individual had been convicted of a crime or that he believed that said individual was guilty of only a traffic violation. …

With respect to the issue of whether defendant “associate[d]” with Nichols within the meaning of special condition No. 17, the testimony at the hearing further demonstrated that, on approximately four occasions … , defendant called either Nichols or her daughter and thereafter went to Nichols’ apartment for the purpose of picking up and walking the dog that defendant and Nichols once shared. Notably, Nichols confirmed that she spoke with defendant, with whom she remained friends, on the telephone to make arrangements regarding the dog and testified that she personally exchanged the dog with defendant “[a]bout four times,” stating, “I would hand him the dog and he would take the dog and go down the street.” People v Kislowski, 2016 NY Slip Op 08261, 3rd Dept 12-8-16

 

CRIMINAL LAW (TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/EVIDENCE (CRIMINAL LAW, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)/PROBATION (VIOLATION, TAKING A WOMAN’S DOG FOR A WALK WAS A VIOLATION OF PROBATION, THE WOMAN HAD A MISDEMEANOR DWI CONVICTION, THEREFORE THE PROBATIONER ASSOCIATED WITH A CONVICTED CRIMINAL)

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PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS.

The Second Department, in affirming the verdict requiring the civil confinement of appellant as a dangerous sex offender, determined the records of appellant’s sex offender treatment in prison were properly released to the attorney general and properly used by the state’s psychiatric experts:

Supreme Court did not err in permitting the petitioner’s experts to testify regarding certain communications made by the appellant in the context of sex offender treatment he received in prison. The appellant correctly argues that the language of a limited waiver of confidentiality he signed before receiving sex offender treatment did not permit disclosure of his treatment records to the Attorney General for a trial under Mental Hygiene Law article 10. However, the appellant concedes that his sex offender treatment records were properly disclosed to the Attorney General and the Attorney General’s experts pursuant to Mental Hygiene Law § 10.08(b) and (c). By granting the Attorney General access to a sex offender’s relevant treatment records “notwithstanding any other provision of law,” and by specifying that the psychiatric examiners chosen by the Attorney General be given access to such records, the Legislature expressed its intent that otherwise privileged sex offender treatment records could be used by these parties in the adversarial stage of an article 10 proceeding … . Matter of State of New York v Justin D., 2016 NY Slip Op 08241, 2nd Dept 12-7-16

MENTAL HYGIENE LAW (PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/EVIDENCE (MENTAL HYGIENE LAW, PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/SEX OFFENDERS MENTAL HYGIENE LAW, ​PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)

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PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT.

The Second Department, reversing Supreme Court, determined the People did not demonstrate the defendant was aware of the victim’s age when establishing the relationship for sexual purposes. The victim indicated she was 18 in her online profile:

… [I]n enacting SORA, the Legislature expressly stated that it was especially concerned with “predatory acts”: “[t]he legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and . . . the protection of the public from these offenders, is of paramount concern or interest to the government” … . This language convinces us that “for the primary purpose of victimization,” as used in risk factor 7 and relevant to this case, requires proof that the defendant knew when establishing or promoting the relationship for sexual purposes that the victim was underage. In cases where the SORA offense is a crime because of the victim’s age, risk factor 7 does not apply to offenders who may have established the relationship for sexual purposes, but without having reason to know the victim’s age at that time … . People v Jordan, 2016 NY Slip Op 08212, 2nd Dept 12-7-16

 

CRIMINAL LAW (SORA, PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)/EVIDENCE (CRIMINAL LAW, SORA, PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT)

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GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING.

The Second Department determined the SORA court properly considered grand jury testimony in assessing the risk level:

The defendant argues that the People’s disclosure of grand jury minutes in this case violated CPL 190.25(4), citing Matter of District Attorney of Suffolk County (58 NY2d 436, 444, 446), which ruled that grand jury minutes cannot be disclosed in a civil proceeding without a demonstration of a “compelling and particularized need” and that it is “impossible” to make a case without the grand jury minutes. However, this argument has been uniformly rejected by the courts … . Correction Law § 168-n(3) states that the court in a SORA proceeding “shall review any victim’s statement,” which includes a victim’s testimony before the grand jury … . Grand jury testimony constitutes reliable hearsay that is sufficient for SORA purposes … . Where grand jury testimony is “undermined by other more compelling evidence,” it need not be credited unless corroborated by other evidence … . However, in this case, no conflicting evidence was submitted. People v Harmon, 2016 NY Slip Op 08210, 2nd Dept 12-7-16

 

CRIMINAL LAW (GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/EVIDENCE (SORA PROCEEDING, GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/SEX OFFENDER REGISTRAION ACT (SORA) (GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)/GRAND JURY TESTIMONY (SORA PROCEEDING, GRAND JURY TESTIMONY IS PROPERLY CONSIDERED IN A SORA RISK-LEVEL PROCEEDING)

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RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS SUBMITTED BY BANK ATTORNEYS IN FORECLOSURE ACTIONS DID NOT EXCEED RULEMAKING POWERS AND MUST BE FOLLOWED.

The Second Department, reversing Supreme Court, determined that the rules promulgated by the Chief Administrative Judge, concerning the affidavits submitted by bank attorneys in foreclosure actions, did not exceed the rule-making powers of the Chief Administrative Judge and must be complied with in actions commenced before August 30, 2013 (when a new CPLR statute went into effect):

Contrary to the Supreme Court’s determination, the Chief Administrative Judge was not acting ultra vires in issuing Administrative Orders 548/10 and 431/11 (hereinafter together the Administrative Orders), but pursuant to authority delegated by the Legislature to adopt rules and orders regulating practice in the courts after consulting with the administrative board … . Moreover, the attorney affirmation itself is not substantive … and, thus, is within the authority of the Chief Administrative Judge to promulgate rules of procedure.

In addition, that the Legislature manifested a clear intent to apply the certificate of merit requirement of CPLR 3012-b only to those actions commenced on or after August 30, 2013, does not manifest an intent by the Legislature to relieve a plaintiff’s counsel of the affirmation requirement in actions commenced prior to August 30, 2013. Bank of N.Y. Mellon v Izmirligil, 2016 NY Slip Op 08033, 2nd Dept 11-30-16

 

FORECLOSURE (RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS SUBMITTED BY BANK ATTORNEYS IN FORECLOSURE ACTIONS DID NOT EXCEED RULEMAKING POWERS AND MUST BE FOLLOWED)/ATTORNEYS (FORECLOSURE, RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS SUBMITTED BY BANK ATTORNEYS IN FORECLOSURE ACTIONS DID NOT EXCEED RULEMAKING POWERS AND MUST BE FOLLOWED)/EVIDENCE  (FORECLOSURE, RULES OF THE CHIEF ADMINISTRATIVE JUDGE CONCERNING THE CONTENTS OF AFFIDAVITS SUBMITTED BY BANK ATTORNEYS IN FORECLOSURE ACTIONS DID NOT EXCEED RULEMAKING POWERS AND MUST BE FOLLOWED)

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FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED.

LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, EVIDENCE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a Baker’s scaffold that had no side rails. Although hearsay can be submitted in opposition to a summary judgment motion, the motion will not be defeated by hearsay alone (the case here). The court noted that the plaintiff’s unsigned deposition transcript was properly considered because it was certified by the reporter, its accuracy was not challenged by the defendant, and plaintiff adopted it as accurate by submitting it:

Plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim where he fell from a six-foot-high Baker’s scaffold, which he was directed to use in order to plaster a ceiling. The record shows that the scaffold “had no side rails, and no other protective device was provided to protect him from falling off the sides” … . …

… [T]he statement in the affidavit of [defendant’s] owner that a subcontractor had assured him that the subcontractor had instructed all his employees to use the lifeline, belt and harness is insufficient raise a triable issue of fact as to whether plaintiff may be the sole proximate cause for disregarding such an instruction … . While hearsay may be considered in opposition to defeat a summary judgment motion if it is not the only evidence upon which opposition to the motion is predicated, because it was the only evidence establishing that plaintiff disregarded an instruction to use the safety devices, it is insufficient to defeat plaintiff’s motion … . Chong v 457 W. 22nd St. Tenants Corp., 2016 NY Slip Op 07997, 1st Dept 11-29-16

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/CIVIL PROCEDURE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SCAFFOLDS (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SUMMARY JUDGMENT (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)

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INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY.

The Third Department determined the inadvertent recording of a conversation between mother and child in this custody proceeding should not have been admitted in evidence. Although mother testified the recording capture her and the child’s voices, she did not testify the recording had not been altered:

“The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the [witness’s] concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible” … . The foundation laid for the introduction of the recording into evidence was the mother’s testimony that the telephone call was made by the child using the mother’s cell phone, the voices on the recording were hers and the child’s, she listened to the recording “[q]uite a few” times and her friend, Amanda Coon, was present when the recording was made. After this testimony, Family Court admitted the recording into evidence. The mother’s testimony was insufficient to authenticate the recording because she did not testify as to whether or not the recording was the complete and unaltered conversation between her and the child, and “there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody” … . Matter of Williams v Rolf, 2016 NY Slip Op 07884, 3rd Dept 11-23-16

FAMILY LAW (INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/EVIDENCE (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/CUSTODY (EVIDENCE, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/RECORDINGS (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)

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