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PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT.

The Second Department determined the verdict in this personal injury case should have been set aside because of an evidentiary error. The injured plaintiff’s sister, who was also her guardian, was wrongly questioned about her criminal history and bad acts:

Pursuant to CPLR 4404(a), a court “may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence [or] in the interest of justice” (CPLR 4404[a]…). “A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court erred in permitting the defendants to impeach the credibility of the injured plaintiff’s sister on direct examination by questioning her with respect to her criminal history and prior bad acts … . “Indeed, it is well established that an adverse party or a hostile witness may not be impeached on direct examination by evidence of his or her criminal conviction[s]” … . Morency v Horizon Transp. Servs., Inc., 2016 NY Slip Op 04029, 2nd Dept 5-25-16

 

CIVIL PROCEDURE (SET ASIDE VERDICT, PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/EVIDENCE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/VERDICT, MOTION TO SET ASIDE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)

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DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION.

The First Department, in a full-fledged opinion by Justice Kapnick, over an extensive two-justice dissent, determined, under the facts, the trial court abused its discretion when it denied, without a hearing, defendant's motion to present expert opinion evidence concerning the science of false confessions:

First, there is no dispute that Dr. Drob concluded that defendant exhibited traits such as, “borderline intellectual functioning, cognitive, social and emotional immaturity, severe deficits in reality testing and deficits in the capacity to understand the actions and intentions of others, deficits in his capacity to cope with interpersonal stress, anxiety, depression, dependency, passivity and a desire to please others, and a concomitant tendency to rely on others for direction and support.” There can also be no dispute that these particular mental conditions and personality traits are ones that research studies have linked to false confessions, and that the Court of Appeals has recognized this link (Bedessie, 19 NY3d at 159 …).

Second, certain conditions of the interrogation suggest that defendant could have been induced to confess falsely to the crimes at issue. The defense urges that the detectives' interrogation employed a variety of techniques that scientific research has shown to be highly correlated with eliciting false confessions. …

Finally, this is a case … that turns on the accuracy of defendant's confessions.  People v Evans, 2016 NY Slip Op 03988, 1st Dept 5-19-16

CRIMINAL LAW (DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)/FALSE CONFESSIONS (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION).EXPERT OPINION EVIDENCE (CRIMINAL LAW, DENIAL, WITHOUT A HEARING, OF DEFENSE MOTION TO PRESENT EXPERT TESTIMONY ON THE SCIENCE OF FALSE CONFESSIONS WAS AN ABUSE OF DISCRETION)

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33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE.

The Second Department, in affirming defendant’s conviction over a dissent, determined a 33 hour delay of arraignment did not, under the facts, render defendant’s statement involuntarily made:

… [T]he testimony at the suppression hearing demonstrated that approximately 29-33 hours passed between the defendant’s arrest and his arraignment and that he provided statements after being in custody for approximately 25-28 hours. … [T]his was not a typical armed robbery case, and … the delay in arraignment was satisfactorily explained. The NYPD coordinated with three other law enforcement agencies to investigate not only the attempted murder and two robbery charges, but also the extent to which the defendant used false identities and counterfeit money in various jurisdictions, before presenting these matters at arraignment, where a judge would be considering the likelihood that the defendant would return to court before setting bail. Notably, prior to obtaining a statement from the defendant, the lead detective traveled to the hospital where the victim was recovering, conducted a photo array identification procedure when the victim became available, and then traveled back to the station house. Under these circumstances, we conclude that the delay in arraigning the defendant was attributable to a thorough and necessary police investigation. Thus, his “detention [was not] prolonged beyond a time reasonably necessary to accomplish the tasks required to bring [him] to arraignment” … . Further, the record does not otherwise demonstrate that the police unnecessarily delayed the arraignment in order to obtain an involuntary confession … . People v Johnson, 2016 NY Slip Op 03896, 2nd Dept 5-18-16

CRIMINAL LAW (33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)/EVIDENCE (CRIMINAL LAW, 33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY MADE)

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ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE.

The Third Department determined an order precluding a party from introducing evidence at trial was appealable in this case. However, under the facts, the order was properly granted. With respect to the appealability of the motion in limine, the court wrote:

As a threshold matter, an order ruling on a motion in limine is generally not appealable as of right or by permission “since an order[] made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling” … . “However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . The order appealed from here, rather than “merely limit[ing] the production of certain evidence as immaterial to damages,” restricted plaintiffs' ability to prove and recover damages … and it is, therefore, appealable … . Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 2016 NY Slip Op 03772, 3rd Dept 5-12-16

APPEALS (ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/EVIDENCE (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/IN LIMINE, MOTION (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)

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EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1).

The Second Department determined the evidence submitted by defendant law firm in support of a motion to dismiss the malpractice complaint based on documentary evidence was properly denied. The letters and affirmation did not constitute “documentary evidence” and did not utterly refute plaintiff's allegations:

“The evidence submitted in support of a [CPLR 3211(a)(1)] motion must be documentary' or the motion must be denied” … . To qualify as documentary evidence, the evidence “must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,' would qualify as documentary evidence' in the proper case” … . Affidavits and letters “were not the types of documents contemplated by the Legislature when it enacted this provision”… .

Here, the letters … did not constitute documentary evidence for the purpose of a motion pursuant to CPLR 3211(a)(1)… ,  Similarly, the affirmation of one of [the law firm's] members was not documentary evidence for the purpose of this motion … . Anderson v Armentano, 2016 NY Slip Op 03690, 2nd Dept 5-11-16

CIVIL PROCEDURE (EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/EVIDENCE (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/DOCUMENTARY EVIDENCE (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/DISMISS, MOTION TO (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1)

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AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED.

The Third Department reversed defendant's conviction of the statutory sale of more than one-half ounce of heroin and the related conspiracy conviction (the remaining 15 counts were not reversed). The court determined the evidence of the amount of heroin sold was equivocal:

A statutory sale may be proven by evidence of an offer or agreement to sell drugs, but “the weight of the material must be independently shown” … . Here, no narcotics were recovered by the police, and the proof of the weight of heroin that defendant agreed to procure for [codefendant] Cochran was equivocal; while the amount of 16 grams was discussed, Cochran also stated that he might purchase “something like that” or, because he had limited funds and other expenses, might “get something lower.” As the People correctly argue, the full amount of transferred narcotics need not always be recovered to satisfy the weight requirement when a sale is based upon an offer or an agreement; nevertheless, there must be some form of independent evidence from which the total weight can be extrapolated … . As there was none here, defendant's conviction for criminal sale of a controlled substance in the second degree is reversed and the corresponding count of the indictment dismissed … . People v Wright, 2016 NY Slip Op 03550, 3rd Dept 5-5-15

CRIMINAL LAW (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/STATUTORY SALE (CRIMINAL LAW, AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/WEIGHT OF DRUGS (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)

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EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Second Department determined the trial evidence supported defendant's request for a jury instruction of the justification defense. A new trial was ordered:

Here, based upon the testimony of the People's witnesses, there was a reasonable view of the evidence that would permit the jury to conclude that the defendant reasonably believed that the use of deadly force was necessary to prevent Jimmy [the victim] from using deadly force against the defendant or his friend, Ranjit … . There was testimony that, immediately before he was stabbed, Jimmy was belligerent and wielded a knife inside the defendant's home, and that he had threatened Ranjit's life. Significantly, Ranjit and another witness described Jimmy as the initial aggressor … . Moreover, this incident occurred in the defendant's dwelling and, thus, to the extent that he believed that Jimmy was about to use deadly physical force against him, he was under no duty to retreat … . People v Singh, 2016 NY Slip Op 03537, 2nd Dept 5-4-16

CRIMINAL LAW (EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

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PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

The Second Department determined providing the unredacted statement to the jury by mistake deprived defendant of a fair trial, without regard to whether the mistake contributed to defendant's conviction:

CPL 310.20(1) provides, “[u]pon retiring to deliberate, the jurors may take with them: . . . Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take.” Here, the defendant's written statement was admitted into evidence at trial, but the parties agreed to redact the statement so as to omit a portion of it indicating, in part, that the defendant's girlfriend “attempted to say I [the defendant] raped her [the defendant's girlfriend].” The parties further agreed that they would return to court before the jury received that exhibit. The redacted portion of the statement was unrelated to the robbery for which the defendant was standing trial. However, in violation of CPL 310.20(1) and the parties' express agreement, the defendant's statement was mistakenly provided to the jury, without the attorneys having been notified first, and without the statement having been fully redacted … . Instead of granting the defense attorney's motion for a mistrial, as it should have done in view of the highly prejudicial nature of the redacted portion of the statement, the Supreme Court gave an instruction regarding the statement that was ineffectual in curing the prejudice. “The right to a fair trial is self-standing,” and where error operates to deprive the defendant of a fair trial, an appellate court “must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction” … . People v Reid, 2016 NY Slip Op 03535, 2nd Dept 5-4-16

CRIMINAL LAW (PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)

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CAUSE OF FALL SUFFICIENTLY DEMONSTRATED WITH CIRCUMSTANTIAL EVIDENCE, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.

The Fourth Department determined plaintiff sufficiently demonstrated the cause of her fall with circumstantial evidence. The defense motion for summary judgment was properly denied:

” In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall' without engaging in speculation” … . In a circumstantial evidence case, however, “[the] plaintiff is not required to exclude every other possible cause of the accident but defendant's negligence . . . , [but the plaintiff's] proof must render those other causes sufficiently remote or technical to enable the jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … .

Here, plaintiff consistently testified that her shoe became caught on a crack in the step, which caused her to fall. Although there were no witnesses to the fall, and plaintiff could not remember seeing the crack at the time of the accident, she testified that the fall occurred in the immediate vicinity of a crack in the step, as revealed by a photograph in the record, “thereby rendering any other potential cause of [her] fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . Rinallo v St. Casimir Parish & Catholic Diocese of Buffalo, 2016 NY Slip Op 03323, 4th Dept 4-29-16


IMPROPER IMPEACHMENT REQUIRED NEW TRIAL.

The Fourth Department ordered a new trial in a personal injury action because defense counsel violated rules of evidence re: impeachment with collateral matters. Defense counsel improperly introduced evidence of plaintiff's drug test results and improperly informed the jury of prior lawsuits brought by plaintiff:

It is well settled that a cross-examiner at trial is “bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility” … , and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied … . Here, defense counsel asked plaintiff during cross-examination whether she had failed an employment-related drug test, a collateral issue relevant only to plaintiff's credibility. In response, plaintiff testified that the test result was a “false positive” that was proved false upon retesting. Defense counsel then violated the collateral evidence rule when she not only referred to a lack of evidence supporting plaintiff's assertion, but introduced the drug test result in evidence in an attempt to impeach plaintiff's credibility … .

The impact of that improper conduct was compounded when defense counsel thereafter questioned defendant's medical expert, over plaintiff's objection, about “drug use history” notations in plaintiff's medical records that, according to the expert, raised questions as to plaintiff's “credibility.” * * *

Finally, despite the court's pretrial ruling precluding defendants from questioning plaintiff about a personal injury claim she had filed in connection with a prior accident, defense counsel, over objection, asked plaintiff if she had been involved in any “legal action” related to her “neck and/or back condition.” Because evidence of prior accidents and lawsuits related thereto “may not [be used to] . . . demonstrate that plaintiff is litigious and therefore unworthy of belief” … , it was error for the court to allow that questioning. In our view, the improper attacks on plaintiff's credibility, viewed as a whole, denied plaintiff a fair trial. Dunn v Garrett, 2016 NY Slip Op 03283, 4th Dept 4-29-16


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