You are here: / Evidence
,

Police Did Have Sufficient Suspicion to Justify Telling Defendant to Drop a Bag He Was Holding—Suppression Should Have Been Granted

The First Department determined the police did not have a founded suspicion criminal activity was afoot when they directed defendant to drop a bag he was holding. Therefore defendant’s suppression motion should have been granted:

The police officers’ initial approach and their intrusion upon defendant’s freedom by directing that he drop the bag were unsupported by a founded suspicion that criminality was afoot necessary to the exercise of the common-law right to inquire … . The officers approached defendant based solely on their observation of him carrying a shopping bag or gift bag that seemed rigid. While one officer testified that, based on his experience, he thought it might be a “booster bag” used for shoplifting, he essentially described an ordinary shopping bag. Further, it was conceded that defendant was not free to leave at the time he was ordered to drop the bag and its use as a booster bag became apparent. Defendant’s innocuous behavior in walking in and out of a store with the bag and his ensuing behavior did not justify further interference to obtain explanatory information … . People v Ties, 2015 NY Slip Op 07753, 1st Dept 10-22-15

 

,

Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

In reversing the judgment revoking defendant’s probation, the Third Department noted that hearsay alone cannot be the basis for revocation and failure to pay restitution will only support revocation if defendant has the ability to pay:

It is settled that, “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay” … . “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority” … . If, on the other hand, “the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment” … .

Here, there was neither an adequate inquiry into defendant’s ability to pay nor a determination that his failure to pay was willful … . Accordingly, the matter must be remitted for further proceedings to determine whether defendant’s failure to make the required monthly restitution payments was willful and, if so, whether such failure, standing alone, serves as a valid basis for revocation of his probation and the imposition of a sentence of incarceration … . People v Songa, 2015 NY Slip Op 07704, 3rd Dept 10-22-15

 

,

Hearsay Supporting Child Abuse Report Seriously Controverted—Report Expunged

The Third Department determined a report maintained by the central register of child abuse and maltreatment should have been amended to state “unfounded” and expunged. Mother brought an Article 78 petition to amend the report, which stated abuse was “indicated.” The Third Department found that the hearsay evidence in support of the report was seriously controverted by the petitioner’s evidence, which included expert evidence about the cause of the child’s broken leg:

“To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child with appropriate supervision or guardianship” … . As there is no dispute that the child suffered a broken leg, there can be no question that her physical condition was in fact impaired. Accordingly, our inquiry distills to whether the record supports a finding that such impairment was the result of petitioner’s failure to provide appropriate supervision and guardianship.

In this regard, the evidence against petitioner consisted primarily of the investigation progress notes, which summarized the caseworker’s interviews with, among others, petitioner’s son, the child’s treating orthopedic surgeon and the child’s geneticist. “[T]here is no question that hearsay is admissible in expungement hearings and, if sufficiently relevant and probative, may constitute substantial evidence to support the underlying determination” … . That said, the substantial evidence standard is not satisfied where, as here, the hearsay evidence at issue is “seriously controverted” … . Matter of Gwen Y. v New York State Off. of Children & Family Servs., 2015 NY Slip Op 07710, 3rd Dept 10-22-15

 

,

Jury Should Have Been Instructed on Intoxication Where an Element of Some of the Charged Offenses Could Have Been Negated by Defendant’s Intoxication

The Second Department determined defendant’s conviction on some of charged offenses must be reversed because the trial judge erroneously refused defendant’s request for a charge on intoxication. There was sufficient evidence to support the conclusion defendant was highly intoxicated when he broke into two apartments from which nothing was stolen, which may have negated the intent element of some of the charges:

Although intoxication is not a defense to a criminal offense, evidence of intoxication “may be offered by the defendant whenever it is relevant to negative an element of the crime charged” (Penal Law § 15.25). An intoxication charge should be issued when, viewing the evidence in a light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to an element on that basis … . The evidence of intoxication in this case met this ” relatively low threshold'” … . Contrary to the People’s contention, the error was not harmless with respect to the defendant’s convictions of burglary in the second degree and criminal mischief in the fourth degree. In order for an error to be harmless, among other things, the proof of the defendant’s guilt must be overwhelming … . Here, the proof of the defendant’s intent as to the crimes of burglary in the second degree and criminal mischief in the fourth degree was not overwhelming … . People v Velez, 2015 NY Slip Op 07691, 2nd Dept 10-21-15

 

, , ,

Wilfulness Is Not an Element of Civil Contempt/Supreme Court Properly Drew a Negative Inference from Defendant’s Invocation of His Fifth Amendment Right Against Self-Incrimination

In an extensive opinion by Judge Rivera, the Court of Appeals affirmed the finding of civil contempt re: an order in a matrimonial matter. The Court of Appeals determined Supreme Court properly drew a negative inference from defendant’s invocation of his Fifth Amendment right against self-incrimination. The Court of Appeals rejected defendant’s argument that “wilfulness” is an element of civil contempt:

… [N]owhere in Judiciary Law § 753 [A] [3] is wilfulness explicitly set forth as an element of civil contempt (Judiciary Law § 753 [A] [3]…). Indeed the only mention of wilfulness for civil contempt is in § 753 [A] [1], which is not at issue in this case as it applies only to “[a]n attorney, counsellor, clerk, sheriff, coroner,” or someone otherwise selected or appointed for judicial or ministerial service. In contrast, Judiciary Law § 750, the criminal contempt provision, permits a court to impose punishment for criminal contempt only for “wilful disobedience to its lawful mandate” (Judiciary Law § 750 [A] [3]…). This statutory language makes clear that where the legislature intended to require wilfulness, it knew how to do so, and any omission of such element is intentional … . …

Apart from the statute, this Court has not imposed a wilfulness requirement for civil contempt… . El-Dehdan v El-Dehdan, 2015 NY Slip Op 07579, CtApp 10-20-15

 

,

Judicial Notice and Collateral Estoppel Re: Philippine Law and a Philippine Court Order Improperly Applied—Related Conspiracy Conviction Vacated/Emails and Newspaper Articles, Although Hearsay, Properly Admitted

The First Department, in a prosecution stemming from the failure to pay tax on the sale of a painting, determined Supreme Court improperly took judicial notice of the law of the Philippines and improperly applied the doctrine of collateral estoppel (based upon a Philippine court order). The painting once belonged to Imelda Marcos when she was the First Lady of the Philippines. Under Philippine law, the painting allegedly should have been forfeited to the people of the Philippines. Defendant (with others) completed the sale of the painting for $32 million. The First Department vacated the conspiracy conviction because of the misapplication of Philippine law, but affirmed the crIminal tax fraud and “filing a false instrument” convictions. In addition to discussing the misapplication of Philippine law and the doctrine of collateral estoppel, the First Department held that emails, although hearsay, were properly admitted to show conduct (not for the truth of the content) and newspaper articles, although hearsay, were properly admitted to show defendant knew the Philippine government was trying to recover the painting (state-of-mind exception):

The trial court erred in reading or paraphrasing approximately eight sentences from an order of the Supreme Court of the Republic of the Philippines in a proceeding commenced by the Republic against Imelda Marcos and others, where the Philippine court granted summary judgment in favor of the petition, and ordered that more than $658 million held mostly in Swiss bank accounts be forfeited to the Republic. Only one sentence read by the court to the jury purported to state the law of the Philippines, namely Philippine Republic Act No. 1379, which provides that any property acquired by a public official during his or her term of public service that is “manifestly out of proportion” to the official’s public salary and any other lawful income “shall be presumed prima facie to have been unlawfully acquired.” The remaining portions of the opinion read to the jury consisted of fact findings, and thus were not proper subjects of judicial notice pursuant to CPLR 4511(b) … .

The court implicitly applied collateral estoppel, which was inapplicable even under the standards governing civil cases, since defendant was not a party to the Philippine case and had no opportunity to litigate the issues therein; moreover, collateral estoppel should be applied with more caution in criminal cases than in civil … . The court further erred in paraphrasing the opinion without clarifying the rebuttable nature of the presumption under the Philippines law, and that error was compounded by the court’s ruling precluding defense counsel from addressing that point in summation. …

The court properly admitted emails exchanged between two of defendant’s alleged coconspirators, her nephews, under the coconspirator exception to the hearsay rule. Contrary to defendant’s argument, the People made a prima facie showing of conspiracy “without recourse to the declarations sought to be introduced” … . There was testimony indicating that one of defendant’s nephews extensively participated in the painting sale at issue, and defendant sent $100,000 of the proceeds to him. Defendant also sent $5 million of the proceeds to the other nephew. Although defendant notes that the court relied in part on the emails at issue, the messages were properly considered to demonstrate the nephews’ conduct, such as offering or arranging to offer certain prices and forwarding photographs of paintings to potential buyers, rather than for the truth of the messages … .

Under the state-of-mind exception to the hearsay rule …, the court properly admitted news articles and other documents, recovered in a search of defendant’s home, concerning the Philippine government’s efforts to recover artworks allegedly misappropriated by the Marcos administration. The circumstances warranted a reasonable inference that defendant was aware of these documents and their contents … , establishing her motive to conceal the sale of a painting allegedly given to her by the former First Lady. Thus, the evidence tended to rebut the defense argument that defendant’s failure to report her income from the sale on her tax returns was not necessarily intentional. People v Bautista, 2015 NY Slip Op 07589, 1st Dept 10-20-15

 

,

Evidence of a Murder Which Was Not Connected to the Defendant Properly Admitted to Explain Relevant Events—Probative Value Outweighed Prejudicial Effect

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that evidence of a murder which was not connected to the defendant was properly admitted in defendant’s witness-tampering prosecution. Defendant was awaiting trial on a murder charge. Three teenaged girls and a man named Bobby Gibson were eyewitnesses. Defendant allegedly developed relationships with the three girls and paid them money. The girls recanted their identifications of the defendant. Then, on the day before the trial, Bobby Gibson was shot and killed outside the apartment of one of the girls. The girls then went to the police and told the police why they had recanted. The girls were placed in protective custody.  A man who was apparently not connected with the defendant, confessed to killing Bobby Gibson. The Court of Appeals determined evidence of Bobby Gibson’s death was properly admitted in the witness-tampering trial to explain the girls’ actions. The trial judge gave the jury a limiting instruction emphasizing that there was no evidence connecting the defendant to the Gibson murder:

Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” … . “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact” … . However, “[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court’s discretion if its probative value is substantially outweighed by the potential for prejudice” … .

Here, the evidence of Gibson’s murder was relevant for several reasons. It showed the state of mind of the three girls and provided an explanation as to why they abandoned their recantations and told police about their deal with defendant. It also explained why the girls were placed in protective custody prior to the trial. Additionally, it allowed the jury to have all of the relevant facts before it to decide whether to credit defense counsel’s arguments or the three girls’ testimony concerning the charges against defendant.

While possible prejudice could arise from the testimony in that the jury might link defendant to the Gibson murder, that prejudice was minimized by the court’s limiting instruction. The court, in its final charge, made clear that defendant had not been charged with causing the death of Gibson. In addition, the prosecutor had stated plainly in his opening statement and [*2]summation that there was no evidence that defendant was involved. Thus, we conclude that the court’s decision to admit the evidence of Gibson’s murder was not an abuse of discretion. People v Harris, 2015 NY Slip Op 07528, CtApp 10-15-15

 

,

Two-Hour Interval Did Not Return Defendant to Status of One Who Was Not Under the Influence of Unwarned Questioning—Subsequent Mirandized Statement Should Have Been Suppressed—Harmless Error Here However

The Second Department determined the two-hour interval between defendant’s unwarned statement and a mirandized statement did not save the mirandized statement from suppression. During the unwarned statement defendant agreed to make a subsequent videotaped statement (which was mirandized). During the two hours between the unwarned statement and the videotaped statement defendant the defendant was never returned to the status of one who was not under questioning. The error here (admitting the videotaped statement) was, however, deemed harmless:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events’, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . In determining whether a subsequent statement made after Miranda warnings were given was part of a “single continuous chain of events,” the court considers various factors including “whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” … . The purpose of the inquiry is to determine whether there was a “definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning” … .

Here, the statement made by the defendant during the pre-9 a.m. questioning, which the Supreme Court suppressed, and the second videotaped statement were part of a single continuous chain of events inasmuch as during the pre-9 a.m. questioning, Detective Rodriguez asked the defendant to make a further videotaped statement when he interrogated the defendant in violation of his constitutional rights. Therefore, during the two-hour break, the defendant was never returned to the status of one who was not under the influence of questioning …, but was anticipating the arrival of the Assistant District Attorney to continue the interrogation. Moreover, Detective Rodriguez, who elicited the 10-to-15 minute statement the defendant made during the pre-9 a.m. questioning without having been again given his Miranda warnings, was present during the subsequent videotaped interrogation, and both interrogations were conducted in the same interview room … . Considering these factors and the nature and extent of the Miranda violation, we cannot conclude that there was a definite, pronounced break between the defendant’s first and second videotaped statements sufficient to return the defendant to the status of one who was not under the influence of questioning … . People v Rodriguez, 2015 NY Slip Op 07520, 2nd Dept 10-14-15

 

,

Allegations In Motion to Suppress Insufficient to Warrant Hearing

In concluding a suppression hearing (re: statements by the defendant) was properly denied, the Fourth Department explained the relevant analytical criteria:

It is well settled that ” [h]earings are not automatic or generally available for the asking by boilerplate allegations’ ” … . Here, “[t]he allegations in defendant’s moving papers, when considered in the context of the detailed information provided to defendant, were insufficient to create a factual dispute requiring such a hearing . . . Defendant . . . did not address the specific allegations set forth in the felony complaint” and the other discovery materials provided to him …, which included the relevant grand jury testimony of the witness. Thus, the court properly denied the motion without conducting a hearing based on the insufficiency of the allegations and, under the circumstances of this case … . People v Mitchell, 2015 NY Slip Op 07411, 4th Dept 10-9-15

 

, ,

Pat-down Search Pursuant to a Stop for a Traffic Infraction Unlawful—Injury to Officer During Unlawful Search Will Not Support Assault Conviction (Which Requires the Officer Be Injured Performing a Lawful Duty)

The Fourth Department determined the pat-down search of defendant after he was stopped for walking in the street was unlawful. Therefore the assault charge stemming from injury to the police officer during the unlawful search was not supported by legally sufficient evidence. The officer was not performing a “lawful duty” at the time of the injury (a required element of the assault charge):

A person is guilty of assault in the second degree under Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police officer . . . from performing a lawful duty . . . , he or she causes physical injury to such . . . police officer” (id.). Here, a police officer stopped defendant for walking in the middle of a roadway in violation of Vehicle and Traffic Law § 1156 (a), and the suppression court found that the search of defendant’s person by another officer was not lawful … . We have previously held that even the more limited pat-down search of a traffic offender “is not authorized unless, when the [person or] vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction’ ” (People v Everett, 82 AD3d 1666, 1666, …). Here, as in Everett, the search of defendant was unauthorized, and the officer was injured only after he attempted to perform the unlawful search (see id.). Viewing the evidence in the light most favorable to the People …, we thus conclude that the evidence is legally insufficient to establish that the officer was injured while undertaking a lawful duty … . People v Richardson, 2015 NY Slip Op 07069, 4th Dept 10-2-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy