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ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED.

The Fourth Department, reversing defendant's conviction in this 30-year-old domestic murder case, determined hearsay evidence of threats allegedly made by the defendant against the victim were improperly admitted for the truth of the matters asserted. While evidence of threats made to the victim may be admissible under Molineux, such evidence must be in admissible form:

Citing Molineux and other like cases, including People v Alvino (71 NY2d 233), the People argue that evidence of defendant's prior threats and physical abuse of the victim were highly relevant for various nonhearsay purposes, such as establishing background information, revealing the state of mind of the victim and defendant, and demonstrating his motive and intent to kill the victim. As defendant correctly points out, however, there is no Molineux exception to the rule against hearsay. It may be true that evidence that defendant beat and threatened to kill the victim is admissible under a Molineux theory, but such evidence must still be in admissible form. For instance, a witness could testify that he or she witnessed defendant assault the victim, or heard defendant threaten the victim. That is not hearsay. It is hearsay, however, for a witness to testify that someone else told him or her that defendant beat or threatened the victim. People v Meadow, 2016 NY Slip Op 04505, 4th Dept 6-10-16

CRIMINAL LAW (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/EVIDENCE (CRIMINAL LAW, ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/PRIOR CRIMES AND BAD ACTS (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/MOLINEUX EVIDENCE (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)

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DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to a Wade hearing to determine the reliability, as opposed to the suggestiveness, of an identification:

Here, following the drug transaction, the undercover officer did not observe defendant again until the trial, which was approximately a year and a half after the transaction. That lapse of time is in stark contrast to the typical situation where an undercover officer identifies the arrestee at the police station contemporaneously with the drug transaction … .

While we recognize that a “Wade hearing” is often linked, nearly exclusively, with the concept of “suggestiveness,” we conclude that a defendant is entitled to CPL 710.30 (1) (b) notice and the opportunity to move to suppress identification testimony pursuant to CPL 710.60 in order to test the reliability of such testimony … . While “suggestiveness” may play an important role in the reliability analysis, it is not the exclusive criterion. The list of criteria involved in making a reliability determination may include, but is not limited to: the lapse of time between the criminal transaction and the arrest, the opportunity to observe the suspect during the transaction, the duration of the interaction, and the facts and circumstances of the interaction with the suspect. It is well settled that “the mere labelling of an identification as confirmatory' will not obviate the need for Wade hearings. Case-by-case analyses of the facts and circumstances in each case remains necessary” … . “Comprehensive analysis, not superficial categorization, ultimately governs” … . People v Reeves, 2016 NY Slip Op 04502, 4th Dept 6-10-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/IDENTIFICATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/WADE HEARING DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)

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PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL.

The Third Department, reversing the conviction, determined preclusion of defendant’s medical evidence in this driving while intoxicated case was an abuse of discretion and the prosecutor’s cross-examination defendant and summation were improper:

“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” … . … Here, County Court’s own inquiry readily identified measures to alleviate any prejudice to the People … . Since a less drastic remedy was readily available, we conclude that the outright preclusion of this evidence was an abuse of discretion. …

… During cross-examination, the prosecutor utilized documentation provided by the defense to question defendant as to his winning an Iron Man … and his being recommended for enrollment in the US Army Ranger School … . Certainly this questioning was an accurate portrayal of defendant’s physical fitness prior to being injured during his military service and fair game to a point as to whether defendant was capable of performing the field sobriety tests. The portrayal, however, disregards defendant’s actual medical condition as shown in the precluded medical records. This discrepancy came to a head during summation, where the prosecutor stated, “I just didn’t really know what to make” of defendant’s claimed impairments. She continued, “I’m surprised” given defendant’s Iron Man award, and concluded, “I don’t understand what happened . . . when he couldn’t perform a standardized field sobriety test. It just doesn’t make any sense to me.”

A prosecutor may not, even during summation, express his or her personal opinion challenging the veracity of the evidence … . To express personal surprise as to defendant’s claim of incapacity, while in possession of defendant’s medical records, was disingenuous and improper.  People v O’Brien, 2016 NY Slip Op 04471. 3rd Dept 6-9-16

CRIMINAL LAW (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)

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STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined Supreme Court should not have awarded sole custody to father without a hearing. The “adequate relevant information” standard used by the Appellate Division was not the correct one:

… [W]e hold only that, on this record, the Appellate Division erred in holding that a hearing was not required based on an application of the “adequate relevant information” standard. In doing so, we reaffirm the long-established principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. We decline, however, to fashion a “one size fits all” rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Accordingly, a court opting to forego a plenary hearing must take care to clearly articulate which factors were — or were not — material to its determination, and the evidence supporting its decision. Under the circumstances of this case, a plenary hearing was necessary. S.L. v J.R., 2016 NY Slip Op 04442, CtApp 6-9-16

FAMILY LAW (STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)/CUSTODY (STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)/EVIDENCE (FAMILY LAW, STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)

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EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED.

The Court of Appeals determined the admission of evidence of an assault on the same victim (A.H.) a week before the charged assault was not error. The defendant acknowledged the evidence was relevant but argued the evidence should have been summarized because it was unduly prejudicial to allow the jury to hear the details:

We cannot say that both defects necessary for reversible error are present in defendant's case, namely, that the trial court abused its discretion by failing to limit A.H.'s testimony and that such error substantially prejudiced the defendant so as to foreclose a determination of harmlessness. … A.H.'s testimony concerned the same parties, and served the nonpropensity purpose of directly explaining her relationship with the defendant and his motive. This is far from a case where “the jury did not require a recital of such a prologue to understand fully what had taken place in the defendant's encounters with [the victim]” … . In the same vein, testimony that the defendant previously attacked A.H. would not have led the jury to marginalize, relegate to the background, or ignore the grievous nature of the New York City assault, which was characterized by physical violence and several failed attempts at immolation.

Under these circumstances, we perceive no error that requires a reversal of defendant's conviction. People v Frankline, 2016 NY Slip Op 04441, CtApp 6-9-16

CRIMINAL LAW (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)/EVIDENCE (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED/MOLINEUX EVIDENCE (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)/UNCHARGED CRIMES (EVIDENCE OF A SIMILAR UNCHARGED CRIME AGAINST THE SAME VICTIM PROPERLY ADMITTED)

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MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined defendant's motion to set aside his conviction was properly denied without a hearing. Defendant's allegations of defense counsel's conflict of interest were deemed insufficient. Defendant alleged his lawyer represented both him and the District Attorney simultaneously:

CPL 440.30 requires that, where the motion to vacate a judgment of conviction “is based upon the existence or occurrence of facts,” sworn allegations thereof must be included in the motion papers (see CPL 440.30 [1] [a]). The sworn allegations can be based on personal knowledge or on information and belief, but in support of the latter, “the affiant must state the sources of such information and the grounds of such belief” (CPL 440.30 [1] [a]). The People “may” file an answer “denying or admitting any or all of the allegations” (see CPL 440.30 [1] [a]). The statute permits a court to deny the motion without a hearing in certain circumstances, including if it “is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts” (CPL 440.30 [4] [b]). * * *

Here, defendant's actual conflict claim consists of unsubstantiated and conclusory allegations of simultaneous representation. * * *

… [T]he statute is plain that the initial failure by a defendant to carry his or her burden of coming forward with sworn allegations substantiating the essential facts in the 440 motion does not shift the burden to the People in their responsive pleadings. * * *

To the extent defendant's allegations are sufficient to establish a potential conflict — based on the successive representation — his papers do not attempt to demonstrate that such a conflict operated on the defense. People v Wright, 2016 NY Slip Op 04440, CtApp 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION PROPERLY DENIED WITHOUT A HEARING; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE OF ACTUAL OR POTENTIAL CONFLICT OF INTEREST ON THE PART OF DEFENSE COUNSEL)

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DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Second Department determined defendant’s suppression motion should have been granted.  The detective investigating a burglary entered the curtilage of defendant’s home without a warrant in the absence of exigent circumstances:

Here, in entering the defendant’s fenced-in rear yard by opening the gate and going through it, the detective entered the curtilage of the defendant’s home … . The People have failed to articulate any exigent circumstances justifying this intrusion and the ensuing warrantless arrest and search … . People v Avinger, 2016 NY Slip Op 04426, 2nd Dept 6-8-16

CRIMINAL LAW (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)/CURTILAGE (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)/WARRANTLESS SEARCH (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EVIDENCE (DETECTIVE ENTERED FENCED BACKYARD WITHOUT A WARRANT, SUPPRESSION SHOULD HAVE BEEN GRANTED)

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MOTION TO RENEW IN WHICH DOCUMENT PREVIOUSLY REJECTED WAS RESUBMITTED IN ADMISSIBLE FORM SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have entertained a motion to renew in which a document previously rejected because it was not in admissible form was resubmitted in admissible form:

The Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to renew. “CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” … . Here, the inadvertent mistake of the plaintiff's attorney in including the unnotarized statement of the chiropractor with the plaintiff's opposition papers, rather than the notarized affidavit, was tantamount to law office failure and constituted a reasonable justification for the plaintiff's failure to provide the affidavit to the court in opposing the original motion … . Defina v Daniel, 2016 NY Slip Op 04381, 2nd Dept 6-8-16

CIVIL PROCEDURE ((MOTION TO RENEW IN WHICH DOCUMENT PREVIOUSLY REJECTED WAS RESUBMITTED IN ADMISSIBLE FORM SHOULD HAVE BEEN GRANTED)/RENEW, MOTION TO (MOTION TO RENEW IN WHICH DOCUMENT PREVIOUSLY REJECTED WAS RESUBMITTED IN ADMISSIBLE FORM SHOULD HAVE BEEN GRANTED)/EVIDENCE ((MOTION TO RENEW IN WHICH DOCUMENT PREVIOUSLY REJECTED WAS RESUBMITTED IN ADMISSIBLE FORM SHOULD HAVE BEEN GRANTED)

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IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR’S SUMMATION, REQUIRED REVERSAL.

The First Department reversed defendant's conviction because the prosecutor improperly elicited testimony about the grand proceedings and the justification defense from an assistant district attorney (ADA) called as a prosecution witness. In addition, the prosecutor improperly referred to “facts” not in evidence during summation. The defendant was alleged to have fired at police officers who were pursuing him. The testimony of the ADA was elicited in anticipation of a defense the officers testified falsely in the grand jury to protect themselves from indictment for shooting defendant. However, the defendant never raised that defense. The ADA was improperly allowed to explain the justification defense (apparently to show the shooting by the officers was justified) and the grand jury procedure (apparently to demonstrate the grand jury found the officers credible):

Comments regarding grand jury composition and proceedings have repeatedly been held to be improper when made by a court, and the same rationale applies when made by a prosecutor … . * * *

By permitting the witness to instruct the jury on the law of justification during the People's case, and apply the law to the facts of this case, “the court improperly surrendered its nondelegable judicial responsibility” … . “The court's delegation of this critical judicial function to the [prosecutor-witness] significantly impaired the integrity of the proceedings and deprived the defendant of a fair trial” … . * * *

The prosecutor must “stay within the four corners of the evidence,” may not refer to matters not in evidence,” should not “call upon the jury to draw conclusions which are not fairly inferrable from the evidence,” or make arguments that “have no bearing on any legitimate issue in the case” … .

Here, on two separate occasions during his summation, the prosecutor did exactly that. People v Melendez, 2016 NY Slip Op 04328, 1st Dept 6-7-16

CRIMINAL LAW (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/ATTORNEYS (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (IMPROPER TESTIMONY BY AN ADA ABOUT GRAND JURY PROCEDURE AND THE JUSTIFICATION DEFENSE, COUPLED WITH IMPROPER REFERENCES TO FACTS NOT IN EVIDENCE DURING THE PROSECUTOR'S SUMMATION, REQUIRED REVERSAL)

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ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE.

The First Department determined the admission of a machine generated blood test for sexually transmitted disease, without the testimony of the technician who operated the machine, did not violate the confrontation clause. The court distinguished a recent Court of Appeals case, People v John, 2016 NY Slip Op 03208, which held an analyst who draws conclusions from raw data must testify before the relevant test results can be admitted:

The lab report at issue here was of the purely “machine generated” category, and the witness whose testimony defendant claims was required was, at best, a technician who tested the accuracy of the machine before placing the sample in it for testing. Under People v John and the U.S. Supreme Court cases on which it relies, the report generated by the machine should not be treated as testimonial, and the absence of testimony by the technician who calibrated the machine did not violate defendant’s Sixth Amendment right of confrontation. “[T]he testing and procedures employed . . . were neither discretionary nor based on opinion; nor did they concern the exercise of fallible human judgment over questions of cause and effect” … . In addition, contrary to defendant’s argument, the report did not directly link him to the crimes, since the “test results, standing alone, shed no light on the guilt of the accused” … , notwithstanding that they provided circumstantial evidence of guilt in light of other evidence. People v Alcivar, 2016 NY Slip Op 04329, 1st Dept 6-7-16

CRIMINAL LAW (ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/EVIDENCE (CRIMINAL LAW, ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/CONFRONTATION CLAUSE (ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)/MACHINE GENERATED BLOOD TEST RESULTS (CRIMINAL LAW, ADMISSION OF THE RESULTS OF A MACHINE GENERATED BLOOD TEST WITHOUT THE TESTIMONY OF THE OPERATOR OF THE MACHINE DID NOT VIOLATE THE CONFRONTATION CLAUSE)

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