You are here: / Evidence
, ,

Defendants Demonstrated They Were Entitled to Depose Nonparty Physician Whose Notations Expressed Skepticism About the Cause of Plaintiff’s Injuries

The Second Department determined defendants were entitled to depose a nonparty doctor whose notations in medical records expressed skepticism about the plaintiff’s claims re: the cause of her injuries. The court explained the applicable law:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) “obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . After the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action … . However, the party or nonparty moving to vacate the subpoena has the initial burden of establishing either that the requested deposition testimony “is utterly irrelevant'” to the action or that ” the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, contrary to the plaintiff’s contention, the … defendants satisfied the notice requirement. In a copy of the document entitled “Authorization to Permit the Interview of Treating Physician by Defense Counsel,” which was attached to the nonparty witness subpoena, “the circumstances or reasons” requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the … defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the … defendants demonstrated that it was relevant to the defense of the action … . Bianchi v Galster Mgt. Corp., 2015 NY Slip Op 06568, 2nd Dept 8-19-15

 

,

Police-Monitored, Recorded Phone Conversation Between Minor Victim and Defendant Was Admissible

In affirming defendant’s conviction, the Fourth Department determined a police-monitored, recorded phone conversation between the minor victim and the defendant was admissible. “Vicarious consent” to the recording was given by the victim’s mother. The court rejected arguments that the conversation was inadmissible because the victim was acting as a police agent and because the conversation constituted an impermissibly deceptive tactic on the part of the police:

We reject defendant’s further contention that the court erred in refusing to suppress statements that he made during a police-monitored telephone conversation with the victim. There is no merit to his contention that the statements were admitted in violation of CPLR 4506 (1). It is well established that one of the parties to a telephone conversation may consent to the wiretapping or recording of the conversation… , and here the victim gave her consent. Defendant failed to preserve for our review his contention that the victim, as a minor, could not consent to the recording of her own conversations … . We note in any event that the victim’s mother consented to the recording, and we conclude that the “vicarious consent” exemption applies under the circumstances presented such that the admission of the subject recording was not barred by CPLR 4506 … . Also contrary to defendant’s contention, his statements in the controlled telephone call were not inadmissible pursuant to CPL 60.45. Even assuming, arguendo, that the victim was acting as an agent of the police when she telephoned defendant, the calls were recorded with the victim’s consent …, and “the victim did not make a threat that would create a substantial risk that defendant might falsely incriminate himself” … . We reject defendant’s further contention that the controlled telephone call constituted an unconstitutionally deceptive police tactic. “Deceptive police stratagems in securing a statement need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession’ ” … , and there was no such showing here. People v Bradberry, 2015 NY Slip Op 06609, 4th Dept 8-19-15

 

,

Evidence of Shooting Committed by Defendant’s Twin Brother Was Highly Prejudicial and Had No Bearing Upon Defendant’s Guilt—Murder Conviction Reversed

The Second Department determined defendant’s murder convictIon must be reversed because evidence of a shooting committed by defendant’s twin brother should not have been admitted. This highly prejudicial evidence had no bearing on defendant’s culpability:

“Evidence of uncharged crimes or crimes committed by a person other than the defendant is generally inadmissible because it is highly prejudicial with little probative value” … . Here, the evidence of the unrelated shooting was admitted in response to evidence introduced by the defense to show that the defendant and his uncharged accomplices exhibited a calm demeanor shortly after the shooting at the garage and that such a demeanor was inconsistent with the People’s contention that they had been recently involved in a violent crime. The People argued that evidence of the unrelated shooting was relevant to this case on the ground that it showed that the defendant’s identical twin brother had similarly exhibited a calm demeanor after he shot an individual at a bar on a prior occasion.

Evidence that the defendant’s identical twin brother had perpetrated a separate shooting less than two months prior to the shooting in this case was highly prejudicial to the defendant and had no bearing whatsoever on the defendant’s culpability for the crimes charged … . This evidence “served no purpose other than to raise an inference of guilt by association” … . People v Grigoroff, 2015 NY Slip Op 06517, 2nd Dept 8-12-15

 

,

Odor of Marihuana Provided Probable Cause to Search Defendant’s Car and Person

The Second Department determined the odor of marihuana coming from inside defendant’s car provided the police with probable cause to search defendant’s car and person:

… [T]he police had probable cause to search the defendant’s vehicle and his person. An officer testified at the suppression hearing that he detected the odor of marihuana emanating from inside the vehicle through the open front windows. He further testified that he had been trained in the detection of marihuana and had made hundreds of drug arrests. Contrary to the defendant’s contention, “[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause” to search a vehicle and its occupants.. . People v McLaren, 2015 NY Slip Op 06522, 2nd Dept 8-12-15

 

,

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

 

,

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

 

,

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

 

,

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

 

, ,

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

 

,

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

 

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