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People Were Not Required to Disclose (Prior to Trial) Confession Made by Defendant to Health Care Worker

The First Department noted the People were not required to disclose, prior to trial, a confession defendant made to a health care worker (because the health care worker was not connected to law enforcement):

… [M]idway through their case, the People introduced a previously undisclosed confession that defendant made to a health care worker at a hospital where he was being treated for a suicide attempt. This statement tended to corroborate a similar confession that defendant made to a detective shortly thereafter. It is undisputed that the People had no statutory duty to disclose this statement, because it was not made to anyone connected with law enforcement (see CPL 240.20[1][a]), and because no Rosario material was involved. Defendant nevertheless complains that his due process right to a fair trial was violated by the timing of the disclosure, because he would have formulated a different defense had he known the People intended to introduce a confession to a civilian witness. However, we find no evidence of deceit or trickery on the part of the People, and defendant’s claim of prejudice is unpersuasive. … [T]here was no misrepresentation that the undisclosed evidence did not exist, and the trial had not progressed to the point where defendant could not have adjusted his defense, or requested less drastic relief than a mistrial.

Defense counsel did not object to the health care worker’s testimony on the ground of physician-patient privilege, and we decline to review this unpreserved claim in the interest of justice. People v Tayo, 2015 NY Slip Op 08353, 1st Dept 11-17-15

 

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Question of Fact Whether Real Estate Broker “Launched an Instrument of Harm” In an Apartment Being Shown to Plaintiff; Evidence of Custom Not Enough to Shift the Burden of Proof in Premises Liability Action

The First Department determined defendant real estate broker’s (Prudential/Leonhardt’s) motion for summary judgment in a personal injury case should not have been granted. As an apartment was being shown by the real estate broker, plaintiff tripped and fell when her foot became tangled in a drapery cord which was on the floor. The broker (Leonhardt) submitted evidence in support of the motion for summary judgment stating that she did not remember whether she opened the drapes on the day in question, and further stating that her habit was to hang the cord up when she did open the drapes. The court held the broker’s evidence was not sufficient to demonstrate, as a matter of law, that the broker did not “launch an instrument of harm,” i.e., cause the cord to be on the floor. Therefore, the contract between the broker and the owner of the apartment could have given rise to a duty of care owed by the broker to the plaintiff:

We thus turn to the … potential predicate for finding third-party tort liability, which rests on whether Prudential or Leonhardt launched an instrument of harm. Since they were the movants for summary judgment, Prudential and Leonhardt had the prima facie burden of demonstrating that there were no triable issues of fact and that they were entitled to judgment as a matter of law on the issue … . Leonhardt’s deposition testimony, and her affidavit in support of the motion, established that it was possible that she opened the drapes before the accident occurred, although she was not able to state with a reasonable degree of certainty that she did. If indeed she had opened the drapes, Leonhardt surmised, she would have wrapped the cord around the hook, because that is what she always did. However, evidence of a particular custom is insufficient to shift the burden in a premises liability case, because the defendant is required to proffer “specific evidence as to [her] activities on the day of the accident” … . Here, since Leonhardt had no specific recollection concerning the opening of the drapes on the day of the accident, she and Prudential were unable to eliminate the possibility that they were responsible for the hazardous placement of the cord on the floor. Accordingly, they failed to meet their prima facie burden, and the court should have denied their motion for summary judgment. Stimmel v Osherow, 2015 NY Slip Op 08340, 1st Dept 11-17-15

 

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Pedigree Question “Where Do You Reside,” Under the Circumstances, Was Designed to Elicit an Incriminating Response, the Answer, Therefore, Should Have Been Suppressed; New Trial on Possessory Counts Ordered

The Fourth Department ordered a new trial on the drug possession and drug paraphernalia counts. Defendant was convicted based upon a “constructive possession” theory (i.e., possession of contraband based upon defendant’s dominion and control over the premises where the contraband is found). As police officers were conducting a search, and as defendant was handcuffed and lying on the floor, an officer asked defendant where he resided. Defendant answered “here.” The People relied heavily on defendant’s answer to prove constructive possession of contraband found on the premises. Under these circumstances, the pedigree question (where do you reside) was designed to elicit an incriminating response and, because the statement was “unwarned,” the answer should have been suppressed:

Generally, a defendant’s answer concerning his address, when “elicited through routine administrative questioning that [is] not designed to elicit an incriminating response” … , will be considered pedigree information not subject to CPL 710.30 notice requirements even if the statement later proves to be inculpatory … . That is “[b]ecause responses to routine booking questions—pedigree questions . . . —are not suppressible even when obtained in violation of Miranda [and, therefore, a] defendant lacks a constitutional basis upon which to challenge the voluntariness of his [or her] statement” … . “[W]here there is no question of voluntariness, the People are not required to serve defendant with notice” … .

As the Court of Appeals recognized, however, “the People may not rely on the pedigree exception if the questions, though facially appropriate, are likely to elicit incriminating admissions because of the circumstances of the particular case” (id.). Although the question concerning defendant’s address appears to have been a facially appropriate question, we conclude that, under the circumstances of this case and, more specifically, under the circumstances in which the question was asked, the question was likely to elicit an incriminating admission and had a “necessary connection to an essential element of [the possessory] crimes charged” under Penal Law §§ 220.16 and 220.50 (2) … . We agree with defendant that the error in admitting that statement cannot be considered harmless insofar as it relates to the possessory counts of the indictment inasmuch as the People relied heavily on that statement to establish defendant’s constructive possession of the drugs and drug paraphernalia … . People v Slade, 2015 NY Slip Op 08252, 4th Dept 11-13-15

 

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CRIMINAL LAW/EVIDENCE

A court may issue an order to obtain corporeal evidence, such as blood or saliva, from a suspect where the People establish: “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable” … . In opposition to the People’s motion, defendant conceded that the People had established the third factor. … With respect to the remaining two factors, we conclude that the court properly granted the People’s motion. Where, as here, the request was made after the defendant has been indicted, “the indictment provided the court with the requisite clear indication that probative evidence could be discovered from [the] buccal swab” …, as well as the requisite “statutory authority and probable cause”… . People v Hogue, 2015 NY Slip Op 08254, 4th Dept 11-13-15

 

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Possession of Modest Amount of Drugs Is Not Sufficient to Make Out a Prima Facie Case of an Intent to Sell

The Fourth Department determined the defendant’s possession of less than an ounce of drugs was not sufficient to make out a prima facie case of defendant’s intent to sell:

We reject the People’s contention that the evidence was sufficient to make out a prima facie case that defendant possessed the cocaine with the intent to sell it. Although “defendant’s possession of a substantial’ quantity of drugs can be cited as circumstantial proof of an intent to sell . . . , it cannot be said as a matter of law that the quantity of uncut and unpackaged drugs possessed in this case permitted an inference that defendant intended to sell them. More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise” … .Consequently, the court properly concluded that the evidence was insufficient to establish that defendant possessed a controlled substance with intent to sell it … . People v Nellons, 2015 NY Slip Op 08305, 4th Dept 11-13-15

 

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Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction

Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother’s drug conviction:

Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency’s prima facie showing of neglect or abuse as a matter of law, and the respondent’s failure to raise a triable issue of fact in opposition to the motion … .

Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment … . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15

 

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Frye Hearing to Determine Acceptance of Paraphilia NOS Diagnosis Required

The Second Department determined defendant sex offender’s request for a Frye hearing in Mental Hygiene Law proceedings for civil commitment should have been granted. Defendant questioned the general acceptance in the psychiatric community of a “paraphilia NOS” diagnosis:

“[E]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field” … . Recently, in Matter of State of New York v Donald DD. (24 NY3d 174), the Court of Appeals noted that paraphilia NOS “is a controversial diagnosis,” and that it had not yet decided “the question that would be decided at a Frye hearing: whether the diagnosis of paraphilia NOS . . . has gained general acceptance in the psychiatric community'” (id. at 186-187). However, the Court of Appeals declined to reach this issue in Matter of Donald DD. because no Frye hearing had been requested or held (id. at 187). Here, however, a Frye hearing was requested and the appellant supported his request with scientific literature. Under these circumstances, a Frye hearing should be conducted to resolve the question of whether the diagnosis of paraphilia NOS has achieved general acceptance in the psychiatric and psychological communities. Matter of State of New York v Richard S., 2015 NY Slip Op 08179, 2nd Dept 11-12-15

 

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Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15

 

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Reversible Error to Admit Hearsay Statements Made by the Victim Four Years After the Alleged Incident Under the “Prompt Outcry” Exception to the Hearsay Rule

The Third Department ordered a new trial in a sexual assault case because hearsay testimony about what the victim said four years after the alleged assault was admitted under the “prompt outcry” exception to the hearsay rule (without any substantive explanation for the delay):

Whether a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given case … . That being said, “courts traditionally have required the complaint to be made ‘at the first suitable opportunity'” …, and “[a]ny significant delay must be adequately explained” … . Here, the victim did not disclose the abuse until 2011, four years after she and her sister were placed in the custody of her father and the abuse had ended. The victim testified that she waited so long to disclose the abuse because defendant had threatened to kill her if she told anyone, but that threat was made during a supervised visit between the victim and defendant. The visitation had ceased well before the disclosures were made, and the victim had neither seen nor spoken to defendant since 2009. We are left, in other words, with disclosures that were made four years after the abuse ended and over two years after the victim last interacted with defendant … .

The People suggest that this prolonged delay can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withholding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly … . To hold otherwise would run against the very purpose of the exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse … . As for the victim’s neurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, given the absence of any adequate explanation for the victim’s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence … . Inasmuch as the evidence of guilt in this case was not overwhelming — indeed, the verdict hinged on the question of whether the victim was credible — we cannot say that the erroneous admission of this bolstering hearsay was harmless … . People v Stone, 2015 NY Slip Op 08205, 3rd Dept 11-12-15

 

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Intoxication Jury Instruction Was Warranted, Conviction Reversed

In reversing defendant’s conviction, the Second Department determined there was sufficient evidence of defendant’s intoxication to warrant the intoxication jury instruction:

The defendant’s convictions of assault in the second degree and criminal possession of a weapon in the fourth degree arise out of an incident during which the defendant allegedly struck another man (hereinafter the complainant) with a metal pipe in the presence of the complainant’s wife. Viewing the intoxication evidence in the light most favorable to the defendant …, we conclude, contrary to the Supreme Court’s determination, that an intoxication instruction (see Penal Law § 15.25) was warranted … . The complainant’s wife testified that, just prior to the subject assault, she observed the defendant with a can of beer in his hand and that the defendant seemed drunk. She further testified that the defendant’s breath smelled like beer, his speech was slurred, and that the defendant, with whom she was familiar, was “not himself.” Under these circumstances, there is “sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . Accordingly, the Supreme Court erred in denying the defendant’s request to give an intoxication instruction to the jury and, thus, reversal is warranted … . People v Goldring, 2015 NY Slip Op 08189, 2nd Dept 11-12-15

 

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