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EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED; JUDGE FAILED TO ELICIT UNEQUIVOCAL ASSURANCES OF IMPARTIALITY FROM FIVE PROSPECTIVE JURORS; NOTHING CAN BE INFERRED FROM THE PROSPECTIVE JURORS’ COLLECTIVE SILENCE IN RESPONSE TO THE JUDGE’S QUESTION WHETHER THEY COULD BE FAIR.

The Fourth Department ordered a new trial after finding that defendant’s motion to suppress statements and evidence should have been granted. The police entered defendant’s apartment without permission. The People argued that the entry was proper under the so-called emergency exception to the warrant requirement. However, the facts indicated the police entered the apartment solely because of defendant’s refusal to open the door. The Fourth Department further noted that five prospective jurors should have been excused for cause because they all indicated not hearing from the defendant would be problematic for them. The judge explained that the defendant had no responsibility to put on any proof, but failed to elicit an unequivocal assurance from each of the jurors that they could render an impartial verdict. The judge simply asked all the jurors collectively whether they had a problem sitting as fair and impartial jurors and the jurors remained silent:

… [B]ased on our review of the record, we conclude that “the evidence at the suppression hearing [did] not establish that the police had reasonable grounds to believe that there [was] an emergency at hand and an immediate need for their assistance for the protection of life or property’ ” … . Indeed, the People did not present any evidence that the police observed anything unusual once they arrived at defendant’s apartment. Although the record indicates that defendant and the victim may have been previously involved in domestic disputes, both police officers testified at the suppression hearing that they did not have direct, personal knowledge of any previous domestic violence or any indication that defendant and the victim were engaged in a domestic dispute at the time they arrived at the apartment. The police officers testified only that they knew that defendant was inside the apartment but would not answer the door. In our view, such testimony is insufficient to support a determination that the “emergency exception” applied to justify the warrantless entry.

… Here, the record establishes that five out of the six prospective jurors clearly expressed concerns that not hearing from defendant or someone on behalf of defendant would affect, inter alia, their ability to be fair and impartial. In response, the court instructed the jury panel that defendant has no responsibility to put on any proof, that he may or may not call witnesses, that he may or may not take the witness stand, and that it is the prosecution’s burden to prove the elements of the crimes of which defendant is accused. The court then asked the jury panel whether anyone had “a problem sitting as a fair and impartial juror in this case?” The five prospective jurors at issue remained silent.

In our view, the statements of the five prospective jurors cast serious doubt on their ability to render an impartial verdict … . The court erred in not obtaining thereafter an “unequivocal assurance . . . from each of those potential jurors” to the effect that he or she could render an impartial verdict … . Furthermore, “we can infer nothing from the [collective] silence of the challenged jurors” … . People v Casillas, 2015 NY Slip Op 09454, 4th Dept 12-23-15

CRIMINAL LAW (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED)/EVIDENCE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (MISAPPLIED)/SUPPRESSION (EMERGENCEY EXCEPTION TO WARRANT REQUIREMENT MISAPPLIED)/CRIMINAL LAW (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)/JURIES (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)

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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

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DESTRUCTION OF BLOOD EVIDENCE IN FLOODING CAUSED BY HURRICANE SANDY DID NOT WARRANT AN ADVERSE INFERENCE JURY INSTRUCTION.

The First Department, over an extensive dissent, determined that the destruction of blood evidence by Hurricane Sandy did not warrant an adverse inference jury instruction, despite the People’s failure to timely respond to the defense request for the evidence. The court determined that the adverse inference jury instruction is not triggered by a loss of evidence for which the People are blameless:

… [T]he Handy [20 NY3d 663] adverse inference charge is a penalty for destruction of evidence, not for mere tardiness in producing it. …  While we do not condone the People’s slowness in fulfilling their disclosure obligations in this case, the evidence in question was not lost as a foreseeable result of the passage of time, but as a consequence of a natural catastrophe that happened to occur just before this case went to trial. Moreover, the delay in production of the evidence here appears to be as much the fault of the defense as of the People. Even though the defense always knew that the case would rely on DNA evidence, defense counsel, after making a pro forma request to which the physical blood evidence would have been responsive, never took any steps before the hurricane, over a period of approximately two years, to enforce defendant’s right to production of that evidence. As previously noted, the physical evidence did not become a focus of the discussion among the court and counsel until after the hurricane had passed. …

We see no support in the record for the dissent’s position that the physical blood evidence from the crime scene was somehow material to the defense. As previously discussed, while the dissent correctly notes that the match of defendant’s DNA with the DNA in the crime scene evidence was “the lynchpin of the People’s case against defendant,” placing before the jury the physical blood evidence from the crime scene would not have told them anything about the accuracy of the DNA match. Indeed, this appears to have been the original conclusion of defense counsel, who, without ever having had an opportunity to examine the physical evidence, announced that he was “ready to go” to trial before he learned that such evidence was no longer [*4]available. Nothing but speculation supports the dissent’s unlikely supposition that the appearance of the physical blood evidence at trial might have told the jury anything about “the manner of its collection, storage or handling” at the time the State analyzed its DNA, three years before trial. The condition of the physical evidence after the State conducted its analysis is irrelevant, since defendant has never expressed any interest in conducting an independent DNA analysis. People v Austin, 2015 NY Slip Op 09372, 1st Dept 12-22-15

CRIMINAL LAW (DESTRUCTION OF EVIDENCE CAUSED BY HURRICANE SANDY, ADVERSE INFERENCE CHARGE NOT WARRANTED)/JURY INSTRUCTION (ADVERSE INFERENCE CHARGE NOT WARRANTED, EVIDENCE DESTROYED BY HURRICANE SANDY)/EVIDENCE (DESTRUCTION BY HURRICANE SANDY, ADVERSE INFERENCE CHARGE NOT WARRANTED)/ADVERSE INFERENCE JURY INSTRUCTION (NOT WARRANTED WHERE EVIDENCE DESTROYED BY HURRICANE SANDY)

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EVIDENCE OF HOW THE MURDER VICTIM FELT ABOUT DEFENDANT AND EVIDENCE OF STRIFE IN THE COUPLE’S RELATIONSHIP ADMISSIBLE TO SHOW MOTIVE AND IDENTITY.

The First Department determined evidence of how the murder victim felt toward the defendant and evidence of the couple’s “strife and unhappiness” was properly admitted to show the defendant’s motive and was inextricably interwoven with the issue of the identity of the killer:

The court properly admitted testimony from friends of the victim reflecting the victim’s unfavorable perception of defendant’s character, in order to show the victim’s beliefs as part of a showing that the couple had been arguing and that the victim had been attempting to break up with defendant. Proof of the “murder victim’s espoused intention to terminate her relationship with, and stay away from, defendant” was admissible to show the “victim’s state of mind” and was “relevant to the issue of the motive of defendant, who was aware of the victim’s attitude, to kill the victim” … . Hence, the background information about the couple’s “strife and unhappiness” was admissible as “highly probative of the defendant’s motive and [was] either directly related to or inextricably interwoven with the issue of his identity as the killer” … . The friends’ testimony about disputes between defendant and the victim was similarly admissible … . People v Brooks, 2015 NY Slip Op 09379, 1st Dept 12-22-15

CRIMINAL LAW (EVIDENCE OF MURDER VICTIM’S STATE OF MIND AND STRIFE BETWEEN DEFENDANT AND VICTIM ADMISSIBLE TO SHOW MOTIVE AND IDENTITY)/EVIDENCE (MURDER VICTIM’S STATE OF MIND AND STRIFE BETWEEN DEFENDANT AND VICTIM ADMISSIBLE TO SHOW MOTIVE AND IDENTITY); PRIOR BAD ACTS (STRIFE IN RELATIONSHIP BETWEEN DEFENDANT AND MURDER VICTIM ADMISSIBLE TO SHOW DEFENDANT’S MOTIVE AND IDENTITY)

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HEARSAY STATEMENT BY AN UNAVAILABLE WITNESS SHOULD HAVE BEEN ADMITTED AS A STATEMENT AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissenting opinion by Judge Pigott, determined that a statement made by an unavailable witness should have been admitted as a statement against penal interest. The defendant was convicted of driving while intoxicated. The out-of-court statement made by the unavailable witness indicated that she, not the defendant, was driving. The Court of Appeals affirmed the Appellate Division, reversed defendant's conviction and ordered a new trial. The court held that all of the following elements of the declaration-against-penal-interest exception to the hearsay rule were supported by sufficient evidence at trial:

The declaration-against-interest exception to the hearsay rule “flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest” unless those facts are true … . A statement qualifies as a declaration against interest if four elements are met: (1) the declarant is unavailable to testify as a witness; (2) when the statement was made, the declarant was aware that it was adverse to his or her penal interest; (3) the declarant has competent knowledge of the facts underlying the statement; and (4) supporting circumstances independent of the statement itself attest to its trustworthiness and reliability … . People v Soto, 2015 NY Slip Op 09316, CtApp 12-17-15

CRIMINAL LAW (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/EVIDENCE (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/HEARSAY (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/STATEMENT AGAINST PENAL INTEREST (REVERSIBLE ERROR TO EXCLUDE)

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PROSECUTION’S USE OF EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION; THE ERROR WAS DEEMED HARMLESS HOWEVER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Pigott (who adopted the dissent by Justice Garry in the Appellate Division), determined that the prosecution’s proof of defendant’s post-Miranda silence as he was being transported by the police violated defendant’s due process rights under the state constitution. The error, however, was deemed harmless because the court found there was no reasonable possibility the error contributed to defendant’s conviction. The defendant’s conviction was therefore upheld. The defendant acknowledged commission of the crimes (two murders) but raised the extreme emotional disturbance (EED) defense. The Court of Appeals held that evidence of defendant’s silence upon arrest, which apparently was aimed at disproving or calling into question the EED defense, did not contribute to the jury’s rejection of the EED defense. The opinion includes extensive discussions of the use of evidence of a defendant’s silence and the related violation of state constitutional rights, the EED proof requirements, and ineffective assistance of counsel. People v Pavone, 2015 NY Slip Op 09315, CtApp 12-17-15

CRIMINAL LAW (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/EVIDENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/SILENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)

MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST FOR THE CHARGE WAS TIMELY; ADVERSE INFERENCE CHARGE RE: EXPERT WHO DID NOT BRING SUBPOENAED NOTES SHOULD HAVE BEEN GIVEN.

The First Department, in ordering a new trial, determined the trial judge should not have given a missing witness charge with respect to one of plaintiff’s doctors and should have given an adverse inference charge based upon a defense expert’s failure to bring her notes, which were subpoenaed:

The party seeking a missing witness charge has the burden of promptly notifying the court when the need for such a charge arises … . The purpose of imposing such a burden is, in part, to permit the parties “to tailor their trial strategy to avoid substantial possibilities of surprise” … . Once the party requesting the charge meets its initial burden, the party opposing the request can defeat it by demonstrating that, among other things, the witness was not available, was outside of its control, or the issue about which the witness would have been called to testify is immaterial … .

Here, the record does not reflect when defendants asked for a missing witness charge for Dr. Rose. This presents the possibility that they did not do so until after plaintiff presented her case. Had that been so, plaintiff would have lost any opportunity to account for Dr. Rose’s absence, argue that plaintiff did not have the requisite control over him, or attempt to procure his appearance. Accordingly, since there is no indication that defendants met their burden, we find that the missing witness charge was improperly given. * * *

…[W]hile Dr. Elkin [a defense expert] did not, as plaintiff suggests, testify that she “destroyed” her notes, she did concede that she did not comply with the subpoena, which required her to bring with her to court the notes that she used in generating her report on behalf of defendants. The failure to produce those notes affected plaintiff’s ability to cross-examine defendants’ expert and was fundamentally unfair to plaintiff. At the least, it would have been appropriate for the court to issue an adverse inference charge … . That Dr. Elkin testified that the notes were subsumed in the report is of no moment. Plaintiff was entitled to independently investigate that claim without having to rely on Dr. Elkin’s own assurances that the notes were themselves of no probative value. Herman v Moore, 2015 NY Slip Op 09352, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

EVIDENCE (MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST WAS TIMELY)/MISSING WITNESS CHARGE (SHOULD NOT HAVE BEEN GIVEN, NO SHOWING REQUEST WAS TIMELY)/EVIDENCE (ADVERSE INFERENCE CHARGE SHOULD HABE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)/ADVERSE INFERENCE CHARGE (SHOULD HAVE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)/JURY INSTRUCTIONS (MISSING WITNESS CHARGE SHOULD NOT HAVE BEEN GIVEN, NO SHOWING OF TIMELY REQUEST)/JURY INSTRUCTIONS (ADVERSE INFERENCE CHARGE SHOULD HAVE BEEN GIVEN, EXPERT DID NOT BRING SUBPOENAED NOTES)

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DEFENSE COUNSEL’S OBLIGATIONS RE: HAVING A PERJURIOUS DEFENDANT TESTIFY IN NARRATIVE FORM.

The Second Department explained the rules associated with defense counsel’s decision to have a perjurious defendant testify in narrative form:

… [W]here defense counsel indicates an intention to present the defendant’s testimony in narrative form, due process does not require that a record be made of either defense counsel’s reasons for believing the defendant will commit perjury or of defense counsel’s advice to the defendant regarding the intention to commit perjury or the consequences of that course of action. “A lawyer with a perjurious client must contend with competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other” … . Requiring counsel to put on the record his or her reasons for anticipating perjured testimony and the advice proffered to the defendant related to his or her testimony would not strike the appropriate balance between these competing considerations but rather, would present too great a risk that defense counsel would be forced to reveal client confidences … . A defendant who seeks to challenge counsel’s judgment to elicit testimony in narrative form or counsel’s advice in that regard may raise those issues in a motion pursuant to CPL 440.10. People v Wesley, 2015 NY Slip Op 09310, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/EVIDENCE (CRIMINAL LAW, PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/NARRATIVE FORM (TESTIMONY OF PERJURIOUS DEFENDANT)

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FAILURE TO INSTRUCT JURY ON EFFECT OF STATUTORY AND REGULATORY VIOLATIONS REQUIRED REVERSAL AND A NEW TRIAL IN THIS SLIP AND FALL CASE.

The Second Department determined the trial judge’s failure to instruct the jury on the effect of the defendant’s violation of a statute and/or a regulation required reversal of the defense verdict in this slip and fall case. The New York State Building Code and the Americans with Disabilities Act require eight-foot wide aisles for access to handicapped parking spots.  Plaintiff, who had a handicapped parking permit, slipped on a grassy slope after getting out of his car. The plaintiff’s expert testified the parking spot where plaintiff fell did not comply with the statutory/regulatory requirements for handicapped parking. The plaintiff requested the jury be instructed on the effect of a statutory violation (negligence per se) and the defendant requested the jury be instructed on the effect of a regulatory violation (some evidence of negligence). The judge denied both requests. The Second Department ordered a new trial:

Jury instructions should adequately convey “the sum and substance of the applicable law to be charged” … . A new trial is warranted when an error is “so significant that the jury was prevented from fairly considering the issues at trial” … .

“The general rule is that the violation of a statute that establishes a specific safety duty constitutes negligence per se” … . When evidence is presented that a defendant violated such a statute, the jury’s role is to determine whether the violation of that statute proximately caused the plaintiff’s injury (… PJI 2:25). Moreover, if proven, a violation of the Building Code of New York State can be considered by a jury as some evidence of negligence (… PJI 2:29…). * * *

Based on the evidence, the trial court should have charged the jury as to the language of the applicable sections of the Americans with Disabilities Act along with PJI 2:25 and the applicable sections of the Building Code of New York State and the Property Maintenance Code of New York State, in conjunction with PJI 2:29. The failure to do so cannot be considered harmless error since these provisions are applicable to the subject parking lot … . DiLallo v Katsan LP, 2015 NY Slip Op 09248, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS)/EVIDENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS IN NEGLIGENCE CASE)/STATUTORY VIOLATION (NEGLIGENCE PER SE)/REGULATORY VIOLATIONS (SOME EVIDENCE OF NEGLIGENCE)

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