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Business Records Exception to the Hearsay Rule Established Possession of Note at the Time Foreclosure Was Commenced

The Third Department determined plaintiff bank demonstrated it had standing to foreclose by sufficient proof it had possession of the underlying note at the time the foreclosure proceeding was commenced. Proof of possession of the note was by an affidavit invoking the business records exception to the hearsay rule. The court noted that evidence a document received from another entity was filed does not qualify the documents as business records. Here, however, the affidavit included sufficient additional information to demonstrate the applicability of the exception:

While “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” …, such records are nonetheless admissible “if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon the recipient in its business” … . To be admissible, these documents should carry the indicia of reliability ordinarily associated with business records … . Deutsche Bank Natl. Trust Co. v Monica, 2015  Slip Op 06453, 3rd Dept 8-6-15

 

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Defendant Should Have Been Allowed to Present Expert Evidence Re: False Confessions—Criteria Explained—New Trial Ordered

The Second Department addressed several significant issues in a lengthy decision ordering a new trial in a murder case (which will be the defendant’s fifth trial in the matter). Although the defendant’s girlfriend had testified against the defendant in prior proceedings, she feigned a loss of memory and refused to testify in the most recent trial. County Court properly held that the girlfriend was “unavailable” within the meaning of Criminal Procedure Law 670.10 thereby allowing her prior testimony to be read into evidence. County Court should not, however, have allowed the People to amend the bill of particulars which, in response to the defendant’s alibi evidence presented in prior trials, extended the time period in which the crimes were alleged to have occurred. The focus of the decision, and the reason for reversal, was County Court’s error in excluding defendant’s expert testimony about false confessions. The confession was the principal evidence in the People’s case and was the product of seven hours of interrogation, 75 minutes of which was videotaped. The Second Department addressed the issue in depth:

Here … the proffered expert testimony was relevant to this particular defendant and the particular circumstances of the case, including the approximately seven-hour interrogation, the videotaped confession, and the lack of physical evidence or eyewitness testimony linking the defendant to the crime … .

In addition to reports from two relevant experts, the County Court was presented with a 75-minute video of the defendant’s late-night confession, taken after the defendant was in custody for almost 14 hours and interrogated for approximately 7 of those almost 14 hours. Among other things, the video shows that the defendant, whose hands were cuffed in front of him during the interview, spoke slowly and sat in a slouched position for a substantial portion of the interview. Further, the officers repeatedly employed suggestive and leading questions, fed the defendant specific details related to the crime scene, and used rapport-building techniques. * * *

Upon our consideration of the submissions and opinions of both experts, we find that the defendant made a thorough proffer that he was “more likely to be coerced into giving a false confession” than other individuals. His proffer clearly indicated that he was intellectually impaired, highly compliant, and suffered from a diagnosable psychiatric disorder, and also that the techniques used during the interrogation were likely to elicit a false confession from him … . Moreover, in light of the foregoing, the fact that no one had videotaped the nearly six hours of the interrogation that had been conducted before the confession was made raises significant concerns. People v Days, 2015 NY Slip Op 06731, 2nd Dept 9-2-15

 

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Police Officer’s Observations Filtered Through His Experience Justified Stop and Frisk

The Second Department, over a dissent, determined that the street stop of the defendant was justified by reasonable suspicion. Here the officer said he made eye contact with the defendant, saw an outline of a rectangular object under defendant’s clothes and the defendant’s movements were consistent with adjusting a weapon under the waistband. The majority held that was enough, because the officer could rely on his experience to interpret the defendant’s movements. The dissent argued that making eye contact, seeing the outline of a rectangular object, and the defendant’s adjusting his waistband was not enough to justify the stop:

“In determining whether an individual’s actions rise to the level of reasonable suspicion, police officers are permitted to interpret the behavior in light of their training and experience” … . Here, in contrast to the opinion of our dissenting colleague, the factual circumstances described by Mourad, coupled with the officer’s experience and training, were sufficient to permit him to request information from the defendant … . The decision to make inquiry of the defendant did not stem from mere “whim or caprice,” but was objectively based upon observation of the defendant’s actions as filtered through the officer’s experience … . Officer Mourad specifically testified that he believed the shape of the concealed object which he observed under the defendant’s clothing was the outline of a gun … . Mourad explained that the defendant moved in a way that he recognized, from experience, as typical of attempts to adjust a firearm kept in a waistband …, and further testified that the defendant began to increase his pace after the officers exited their vehicle and announced their presence … . Accordingly, there was reasonable suspicion to stop and frisk the defendant … . People v Fletcher, 2015 NY Slip Op 06366, 2nd Dept 7-29-15

 

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With Regard to the Suit Against the Perpetrator, Perpetrator’s Criminal Conviction Barred Relitigation in the Wrongful Death Case Stemming from a Stabbing Outside Defendant Bar/With Regard to the Suit Against Defendant Bar, Questions of Fact Raised About the Foreseeability of the Attack, the Proximate Cause of the Injury, and the Adequacy of Defendant Bar’s Security Measures

The Second Department determined plaintiff’s decedent’s estate was entitled to summary judgment against the defendant, Taylor, who stabbed plaintiff’s decedent outside a bar both had just left. Taylor had pled guilty to manslaughter and waived the justification defense. Taylor was therefore collaterally estopped from relitigating the issue in the civil proceeding. Questions of fact about the foreseeability of the stabbing, the proximate cause of the incident and the adequacy of security precluded summary judgment re: the liability of the bar defendants. The Second Department noted that Supreme Court should have overlooked the fact that the depositions submitted in motion practice were unsigned (a basis for Supreme Court’s denial of requested relief). No party raised the “unsigned deposition” issue and it amounted to only a minor irregularity:

“Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability” … . “The doctrine applies whether the conviction results from a plea or a trial” … . “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action” … . “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” * * *

“A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties” … . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected, but the criminal conduct at issue must be shown to be reasonably predictable based on prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . Here, the plaintiff met her prima facie burden of establishing her entitlement to judgment as a matter of law against [the bar defendants]. In opposition, the [bar defendants] raised a triable issue of fact on behalf … as to the issue of foreseeability, whether the decedent’s own conduct preceding the stabbing was a proximate cause of his injuries, and whether the … security measures were adequate … . Hartman v Milbel Enters., Inc., 2015 NY Slip Op 06314, 2nd Dept 7-29-15

 

The Criteria for an Exception to the “Best Evidence Rule” for Admission of an Agreement, the Terms of Which Were In Dispute, Were Not Met—New Trial Ordered

The Second Department determined the the criteria for an exception to the “best evidence rule” for the admission of a copy of a joint development agreement, the terms of which were in dispute, were not met. A new trial was ordered. The court explained the rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven… . The rule “serves mainly to protect against fraud, perjury and inaccuracies . . . which derive from faulty memory” … . Under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence, and has not procured its loss or destruction in bad faith” … . The proponent of the secondary evidence “has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility” … .

Here, the plaintiff failed to adequately explain the unavailability of the primary evidence, i.e., the original executed joint development agreement … . Stathis v Estate of Karas, 2015 NY Slip Op 06330, 2nd Dept 7-29-15

 

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Plaintiff’s Requests to be Deposed (in China) by Remote Electronic Means and to Use a Video Transcription of the Deposition In Lieu of Testifying at Trial Should Not Have Been Denied

The Second Department determined Supreme Court abused its discretion when it denied plaintiff’s requests to conduct a deposition by remote electronic means and to present a video transcription of the deposition at trial in lieu of testifying. Plaintiff returned to China before depositions were complete and subsequent applications for a visa were denied:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s cross motion which was pursuant to CPLR 3103(a) for a protective order directing that his deposition be conducted by remote electronic means. “Generally, when a party to the action is to be deposed, the deposition should take place within the county . . . where the action is pending'” … . “An exception to this rule is where a party demonstrates that examination in that county would cause undue hardship” … . Here, in light of the evidence that the plaintiff’s applications for a visa to return to the United States had been denied, and the evidence establishing that he presently was ineligible to be admitted to the United States, the plaintiff demonstrated that traveling from China to the United States for his deposition or independent medical examination would cause undue hardship … .

Further, the Supreme Court erred in, in effect, denying that branch of the plaintiff’s amended cross motion which was pursuant to CPLR 3117(a)(3) for leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial to give testimony. The plaintiff met the criteria set forth in CPLR 3117(a)(3)(ii), (iv), and (v) … . Feng Wang v A & W Travel, Inc., 2015 NY Slip Op 06312, 2nd Dept 7-29-15

 

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Court Should Not Have Ruled Defendant Could Be Cross-Examined About His Prior Possession of Guns Under Sandoval—Possession of Guns Has No Bearing on Credibility

Although the error was deemed harmless, the Second Department noted that defendant’s prior conduct of possessing guns should not have been ruled a topic of proper cross-examination of the defendant. Gun possession has no relationship to credibility, which is the sole concern under Sandoval:

We agree with the defendant that the Supreme Court improvidently exercised its discretion in determining, after a Sandoval hearing (see People v Sandoval, 34 NY2d 371), that the People could inquire about the defendant’s prior conduct of possessing guns. Whereas “[c]ommission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness . . . will usually have a very material relevance, whenever committed” (id. at 377), the fact that the defendant had possessed guns on a prior occasion had little bearing on his credibility … . People v Anderson, 2015 NY Slip Op 06355, 2nd Dept 7-29-15

 

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The Prejudicial Effect of the Result of the Portable Breath Test (PBT) Outweighed Its Probative Value—New Trial Ordered

The Second Department determined defendant’s DWI conviction must be reversed because evidence of the result of the portable breath test (PBT), which is generally inadmissible as unreliable, was allowed in evidence. The defendant had subsequently agreed to the chemical breath test, which can be admissible evidence at trial, but his breaths were so shallow during repeated attempts to administer the test that no results were obtained. The result of the PBT (which showed the presence of alcohol) was deemed admissible, not as proof of intoxication, but as evidence of defendant’s state of mind when the chemical breath test was administered (the People’s position was that defendant deliberately sabotaged the chemical test with shallow breaths).  Although the PBT was ostensibly not admitted as proof of intoxication, the Second Department determined the jury would have taken it as such and, therefore, the probative value of the test result was outweighed by its prejudicial effect:

On appeal, the defendant contends that he was deprived of his right to a fair trial based on the County Court’s admission of the PBT results into evidence. We agree. Under the circumstances of this case, the probative value of the PBT evidence was outweighed by its prejudicial effect and, accordingly, should have been excluded … .

Generally, the result of a PBT “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Here, although the PBT evidence was not introduced for the purpose of proving intoxication, since the jurors were permitted to hear that the PBT detected the presence of alcohol, the County Court created an unacceptable risk that the jurors would improperly consider the PBT evidence for this impermissible purpose. This risk was enhanced both by the County Court’s determination to take judicial notice that the PBT was on the Commissioner’s conforming list and the State Trooper’s trial testimony that he was trained in the operation of the PBT device. The trooper’s testimony in this regard, which was directed towards the issue of whether the PBT was reliable for its intended purpose—the assessment of the defendant’s level of intoxication—was irrelevant to the defendant’s state of mind at the time he submitted to the chemical breath test at the State Police barracks. Thus, this testimony increased the risk that the jury would be unable to avoid considering the PBT evidence as proof of the defendant’s intoxication. People v Palencia, 2015 NY Slip Op 06373, 2nd Dept 7-29-15

 

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Plaintiff’s Use of a Partially Open A-Frame Ladder Did Not Constitute Misuse of a Safety Device—Directed Verdict in Favor of Plaintiff on Labor Law 240(1) Cause of Action Was Proper/Plaintiff’s Apparent Failure to Turn Over All of the Relevant Medical Records Required a New Trial on Damages

The First Department, over a dissent, determined that the court, after a jury trial, properly directed a verdict in favor of the plaintiff on the Labor Law 240(1) cause of action. Plaintiff was using an A-frame ladder to weld a tank. It was not possible to open the ladder completely unless the ladder was perpendicular to the tank. Because using the ladder in a perpendicular position would have forced plaintiff to twist his body to weld, plaintiff placed the ladder against the tank in a partially open position. The ladder “shook” and plaintiff fell off it. The First Department held that, under those facts, the way plaintiff used the ladder did not constitute misuse of a safety device and, because Labor Law 240(1) was violated, plaintiff’s action could not constitute the sole proximate cause of the injury. A new trial was required, however, because the medical records supplied to the defendants pursuant to a subpoena were much less voluminous than the medical records brought to trial by the plaintiff’s medical expert, thereby depriving the defendants of the ability to fully cross-examine the expert:

A verdict may be directed only if the “court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” … . The benefit of all inferences is afforded to the non moving party, and the facts are viewed in a light most favorable to it (id.). Here, plaintiff argued that there was no issue of fact necessary for a jury to resolve regarding whether defendants violated their obligation under Labor Law § 240(1) to provide him with an appropriate safety device to guard against the elevation-related risk. That is because, he asserts, there was no alternative safety device readily available to him, and he had no choice but to place the ladder in the closed position given the way the tank was situated. Defendants do not dispute that an unsecured ladder, even one in good condition, can give rise to Labor Law section 240(1) liability if the worker falls from it * * *

A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident … . To be sure, we do not disagree with the dissent that, in principle, placement of an A-frame ladder in the closed position “can constitute misuse of a safety device”…. . * * *

Here, plaintiff gave a specific reason why he used the ladder in the closed position. Plaintiff testified that using the ladder in an open position and twisting his body to face the tank would have been exhausting, requiring him to take frequent breaks, which defendants did not dispute. Indeed, defendants’ assertion that turning the ladder would have presented an issue of “[m]ere expediency or inconvenience” mischaracterizes the record. In any event, we are hesitant to adopt a rule that, in order to permit a worker to enjoy the protection of Labor Law section 240(1), would require him to take extraordinary measures to perform his work, when he has a good faith belief that doing so would cause him acute discomfort while drastically slowing his pace … . Noor v City of New York, 2015 NY Slip Op 06295, 1st Dept 7-28-15

 

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Improper Evidence of Uncharged Offenses, a Police Officer’s Vouching for the Reliability and Credibility of the People’s Central Witness, and the Court’s Failure to Give Limiting Instructions to the Jurors after Sustaining Objections to Improper Testimony Deprived Defendant of a Fair Trial

The Third Department reversed defendant’s conviction based upon several errors including the improper presentation of evidence of uncharged crimes attributed to the defendant and a police officer’s vouching for the reliability and credibility of the confidential informant (CI), upon whose testimony the People’s case depended. The jury heard evidence of defendant’s participation in a drug offense identical to that for which he was on trial. Even though objection to the testimony was sustained and the testimony struck, no limiting instructions were given to the jury. Evidence of defendant’s sitting at a table on which were large amounts of heroin and crack cocaine was also improperly presented. Objection to that testimony was overruled. With respect to the police officer’s vouching for the credibility and reliability of the CI, the defense objection to that testimony was sustained, but no curative instructions were given to the jury:

At trial … the CI testified that defendant was not only present during [a] controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant’s prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI’s testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial … . Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table “with large amounts of heroin and crack cocaine in front of him.” Although no reference to “heroin” was included in the People’s Molineux proffer, or otherwise previously disclosed, the court overruled defendant’s objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI’s narrative … . Significantly, the court did not attempt to cure the prejudice arising from the CI’s improper testimony by issuing an instruction either at the time of defendant’s objection or during the jury charge … . * * *

Further prejudice resulted from the People’s redirect examination of [officer] Gillis, who stated that the CI was “very reliable and very trustworthy.” After County Court overruled defendant’s objection, and characterized the testimony as “opinion,” Gillis elaborated that the CI had “never given [him a] reason to not believe anything that [the CI] is telling [him].” Allowing Gillis to vouch for the CI’s credibility was clearly improper … . The effect was compounded by the People’s summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability … . While we recognize that County Court sustained defendant’s objection, no curative instruction was issued, and we remain concerned that the prosecutor’s remark amplified the effect of Gillis’ improper vouching … . People v Nicholas, 2015 NY Slip Op 06269, 3rd Dept 7-23-15

 

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