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Records of Pedigree Information Which Was Linked to the Defendant and Was Supplied by the Person Who Purchased a Prepaid Cell Phone Properly Admitted as Circumstantial Evidence Defendant Purchased the Phone

The First Department determined “[a]uthenticated records showing that the person who purchased a particular prepaid cell phone, which was linked to the crime, supplied pedigree information linked to defendant were properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone. In the context of the case, the pedigree information did not constitute assertions of fact, but circumstantial evidence that the declarant was, in all likelihood, defendant … . Rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author … . Although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible … . The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant’s pedigree information goes to weight, not admissibility.” People v Patterson, 2015 NY Slip Op 03788, 1st Dept 5-5-15

 

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Competency of Evidence Before Grand Jury Not Reviewable On Appeal Where Defendant Convicted Upon Legally Sufficient Trial Evidence

In response the defendant’s claim that a child witness was allowed to testify before the grand jury without determining her testimonial capacity, the Fourth Department noted that the competency of evidence before the grand jury is not reviewable on appeal where defendant was convicted upon legally sufficient trial evidence. People v Riley, 2014 NY Slip Op 03140, 4th Dept 5-2-14

 

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Professional Reliability Exception to the Hearsay Rule (Re: Experts) Explained/Appropriate Date to Commence Prejudgment Interest in Breach of Contract Action Explained

The Fourth Department explained when an expert can rely on hearsay and when prejudgment interest should commence in a breach of contract action:

We reject defendant’s further contention that there was no evidentiary foundation for the testimony of plaintiffs’ damages expert, a construction cost estimator. It is well settled that” [o]pinion evidence must be based on facts in the record or personally known to the witness’ ” … . It is also well settled, however, that an expert is permitted to offer opinion testimony based on facts not in evidence where the material is ” of a kind accepted in the profession as reliable in forming a professional opinion’ ” … . “The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” … . Here, the expert’s damages testimony was based, in part, on measurements contained in a report that was not admitted in evidence, but those measurements were not otherwise disputed or challenged by defendant. Moreover, the expert testified that the information on which he relied was of the type relied on in his profession.

We agree with defendant, however, that the court erred in awarding prejudgment interest from April 18, 1990. The jury did not specify a date on which plaintiffs’ cause of action for breach of contract accrued and where, as here, “the precise date from which to fix interest is ambiguous, the date of commencement of the . . . action’ is an appropriate date to choose” … . We therefore modify the judgment by vacating the amount of prejudgment interest awarded from April 18, 1990 and providing that prejudgment interest is to commence from April 18, 1996, the date on which the action was commenced, to May 2, 2012, the date of the judgment. Caleb v Stevenson Envtl Servs Inc, 2014 NY Slip Op 03057, 4th Dept 5-2-14

 

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Rape-Complainant’s Mental Health Records Raised a Brady, Not a Confrontation, Issue—Trial Judge Properly Ruled that Most of the Records Would Not Be Turned Over to the Defense Because There was No Reasonable Possibility Disclosure Would Have Led to Defendant’s Acquittal

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a forceful dissent by Judge Rivera, determined the trial court had properly refused to turn over to the defense most of the complainant’s mental health records.  The 18-year-old complainant called 911 to report she had just been raped by the 40-year-old defendant.  The defendant claimed that they had consensual sex but that he struggled with the complainant after she started to run away with his pants and money. The case came down to the credibility of the defendant and the complainant.  The complainant suffered from “Bipolar, Tourettes, post-traumatic-stress disorder, [and] epilepsy.”  She had visualized the presence of dead people, had cut herself, had been violent, had attempted suicide and had made an allegation of sexual assault against her father which one record referred to as “unfounded.” She also suffered from attention deficit disorder and hypersexuality. The trial judge disclosed only a few of complainant’s mental health records.  The majority determined the mental health records raised a Brady issue, not a confrontation issue (as was argued by the defendant and the dissent):

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed … .

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed … .

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion. People v McCray, 2014 NY Slip Op 02970, CtApp 5-1-14

 

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There Was Sufficient Evidence Defendant Was Responsible for a Witness’ Refusal to Testify to Allow the People to Present the Witness’ Grand Jury Testimony at Trial

In a full-fledged opinion by Judge Abdus-Salaam, with a concurring opinion, the Court of Appeals determined the trial court properly ruled a witness' grand jury testimony could be presented at trial because there was sufficient evidence the defendant was responsible for the witness' asserting her Fifth Amendment privilege against self-incrimination and refusing to testify:

Under the Sixth Amendment of the Federal Constitution and article one, section six of the State Constitution, a criminal defendant has the right to be confronted with the witnesses against him or her (see U.S. Const. Amend. VI; NY Const, art I, § 6…). The confrontation right is critical to the fairness of a trial because it “'ensur[es] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact'” … . Given this important right, an unavailable witness's grand jury testimony, which by definition has not been subjected to confrontation, generally may not be admitted at trial on the People's direct case … . However, “where it has been shown that the defendant procured the witness's unavailability through violence, threats or chicanery,” the defendant “may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations,” including the witness's grand jury testimony… .  People v Smart, 2014 NY Slip Op 02972, CtApp 5-1-14

 

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Issuance of a “No Knock” Warrant to Take a DNA Sample Was Not Justified—Sample Should Have Been Suppressed

The Third Department suppressed DNA evidence taken from the defendant pursuant to a “no knock” warrant and reversed defendant’s conviction. No exigent circumstances justified the “no knock” warrant which allowed the police to enter defendant’s home without notice and take the DNA sample:

The search warrant application to obtain DNA from defendant included the unsubstantiated and inaccurate allegations that the “search warrant cannot be executed between the hours of 6:00 A.M. and 9:00 P.M.,” “the property sought will be removed or destroyed if not seized forthwith,” and “[t]he property sought may be easily and quickly destroyed or disposed of.” There were no factual allegations reflecting exigent circumstances justifying the lack of any notice to defendant of the application to obtain a DNA sample from him. He could not destroy or dispose of his own DNA, and the People’s speculation in their brief that he might have fled was not alleged or supported by facts in the application.

The ensuing search warrant inconsistently stated both that it was to be executed between 6:00 a.m. and 9:00 p.m. and that it could be executed at any time day or night; and it further authorized police to enter the premises where defendant resided without giving notice of their authority or purpose. Under the authority of the warrant, police arrived unannounced at the place where defendant lived demanding his DNA. The total absence of notice to defendant of the search warrant application, which had obvious defects regarding the manner purportedly necessary to obtain defendant’s DNA, violated his constitutional rights and the DNA obtained in such search must be suppressed and the judgment reversed… . People v Walker, 2014 NY Slip Op 02975, 3rd Dept 5-1-14

 

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The Fact that One of Four Men Approached for a Level One Street Inquiry Ran Did Not Provide the Police with Reasonable Suspicion that Defendant, Who Obeyed the Police Commands, Was Involved in a Crime

The First Department determined that the police did not have sufficient cause to detain four men, including the defendant, on the street. The fact that one of the four men subsequently ran did not provide any additional justification for detaining defendant. The police had enough information about a near-by robbery only to justify a “level one” street inquiry of the four men, not detention.  While detained without sufficient cause, defendant was asked by the police to lift up his shirt, revealing a gun.  Absent “reasonable suspicion” of involvement in a crime, the defendant should not have been detained to await the show-up. Absent an indication defendant posed a danger to the police officers, the defendant should not have been asked to lift his shirt:

…[T]he group of men was in a location to which a group of robbers had been reported to have fled only minutes earlier, giving the officers an articulable reason for inquiring into why the men were in the area … . The question, then, is whether the encounter ever escalated to a point that the police would have been justified in holding the men at the scene while the complainant was transported to it.

…[R]easonable suspicion is a necessary predicate to a detention for a showup identification … . Further, a person’s flight is sufficient to create the reasonable suspicion necessary to escalate a level one or level two encounter to a level three detention, so long as other circumstances are attendant, such as a high-crime location and activity suggesting, although not alone creating, reasonable suspicion that the person fleeing the scene may be engaged in criminal conduct … . In all of the cases which discuss flight as the determining factor in creating reasonable suspicion, however, the defendant is the person who fled. Here, of course, defendant did not flee; he obeyed the officers’ direction to stop and to submit to their questioning. People v Thompson, 2015 NY Slip Op 03605 1st Dept 4-30-15

 

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Precise Dates of Abuse Need Not Be Proven in a Family Court Act Article 10 Proceeding/Exclusion of Respondent from Proceedings During Child’s Testimony Was Proper

The Third Department affirmed the child abuse/severe abuse/neglect findings against respondent and noted that the precise dates of the abuse need not be proven in a Family Court Act Article 10 proceeding.  The Third Department further determined that the exclusion of the respondent during one of the children’s (Aleria’s) testimony, while allowing the respondent’s attorney to be present, was a proper exercise of discretion:

…[E]vidence of the exact dates that the abuse and/or neglect occurred is not required in order for petitioner to sustain its applicable burdens of proof in Family Ct Act article 10 proceedings (see Family Ct Act § 1046 [b] [i], [ii]). Rather, a child’s ability to recall details — including, among other things, dates and times — goes to the credibility and weight given to the child’s disclosures. In this regard, “Family Court’s findings are entitled to great deference especially where the critical evidence is testimonial, in light of the court’s ability to assess the witnesses’ credibility, and should generally not be disturbed absent a conclusion that they lack a sound and substantial basis in the record” … . The record before us contains corroborated allegations of horrendous, repeated acts of sexual and physical abuse perpetrated by respondent against his children and stepdaughter and, thus, we see no reason to depart from Family Court’s finding that the allegations of severe abuse, abuse, neglect and derivative abuse and neglect were sufficiently proven.

Nor do we find that Family Court abused its discretion when it excluded respondent from the courtroom during Aleria’s testimony. Although respondent is entitled to due process, he does not have an absolute right to be present at all stages of this civil proceeding … . “As such, in the context of a Family Ct Act article 10 proceeding, this Court has concluded that, ‘[i]n balancing the due process right of the accused with the mental and emotional well-being of the child, a court may . . . exclude the respondent during the child’s testimony but allow his [or her] attorney to be present and question the child'” … . Accordingly, after having properly balanced respondent’s interests with the impact of his presence in the courtroom on Aleria’s emotional state and well-being, Family Court’s decision to permit her to testify outside of respondent’s presence was an appropriate exercise of discretion. Matter of Aleria KK. (Ralph MM.), 2015 NY Slip Op 03590, 3rd Dept 4-30-15

 

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The Defendant Had an Expectation of Privacy In an Envelope Containing His Personal Belongings—The Belongings Were Placed in the Envelope Upon Defendant’s Admission to a Hospital—Even though the Police Were Under the Impression the Defendant Was a Crime Victim, Not a Perpetrator, at the Time the Contents of the Envelope Were Examined, the Search Was Not Justified—Defendant Had an Expectation of Privacy Re: the Contents of the Envelope—The People Were Unable to Meet their “Burden of Going Forward” at the Suppression Hearing Because They Could Not Demonstrate the Legality of the Police Conduct

The Second Department ordered a new trial after determining defendant’s motion to suppress should have been granted.  Defendant was admitted to a hospital with a gunshot wound and a ring and his cell phone in his possession were placed in an envelope by hospital personnel.  Defendant was later identified as the perpetrator of a robbery who was shot by the homeowner.  The ring in the envelope had been stolen in the robbery.  At the time the police at the hospital opened the envelope, however, they were under the impression the defendant was a victim and the cell phone was examined in an attempt to identify next of kin. The Second Department held that, notwithstanding the defendant’s ostensible status as a “victim,” not a perpetrator, he had an expectation of privacy in the contents of the envelope and the police not were not justified in opening the envelope and examining its contents.  The People failed to meet their “burden of going forward” at the suppression hearing because the legality of the police conduct was not demonstrated:

“On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance'” … . Here, the People did not meet this burden. The People’s contention that the police had probable cause to search the bag containing the defendant’s personal belongings because it contained evidence of a crime is without merit … . The defendant had an expectation of privacy in his personal belongings despite the fact that he was being treated at the hospital and his belongings had been taken by hospital personnel and given to the police for the purpose of safeguarding them … . “[T]he fact that the [police] perceived the defendant to be a victim rather than a suspect did not strip the defendant of Fourth Amendment protection” …, regardless of the Nassau detective’s testimony that the cell phone was searched for the purpose of finding next of kin information. People v Salvodon, 2015 NY Slip Op 03570, 2nd Dept 4-29-15

 

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The “Physical Intrusion” by the Police Officer (Tapping the Defendant’s Pocket) Was Not Justified by Reasonable Suspicion of a Crime—The Subsequent Frisk of the Defendant Was Similarly Not Justified—The Arrest Was Therefore Invalid–All Seized Items and Statements Made by the Defendant Should Have Been Suppressed

The First Department determined the police officer’s observations of the defendant’s actions (head turning both ways) in a “high narcotics area” justified his approach of the defendant, who was sitting in a car (founded suspicion/common-law right of inquiry).  Asking the defendant what was in his pocket after the defendant pulled his hand from his jacket was also justified. However, the officer’s “tapping” of an object in defendant’s pocket was not justified.  The intrusion (tapping the pocket) and the subsequent frisk of the defendant were not supported by reasonable suspicion of a crime or by the need to ensure the officer’s safety. The arrest was invalid and the motion to suppress all seized items, as well as the statements made by the defendant, should have been granted:

Defendant was the passenger in a vehicle stopped by the police at approximately 9 p.m. in a “high narcotics area.” As an officer approached the passenger side of the vehicle, he noticed defendant’s “head turning both ways and a lot of . . . movement coming from the area of the front passenger seat.” As he reached the passenger side window, he saw defendant, who appeared nervous, “pulling his hand from his jacket, from the fold of his jacket.” When the officer asked defendant what he “put in [his] jacket,” defendant “mumbled something unintelligible or really didn’t say much.” The officer then reached into the car, “tapped” the pocket of defendant’s jacket with the flashlight he was holding, and felt “something hard.”

The officer’s observations, up until the time he arrived at the passenger window, gave rise to founded suspicion that criminality was afoot, and so justified his question regarding what defendant had put in his pocket, which constituted a common-law inquiry … . However, we find that the physical intrusion of tapping defendant’s pocket was unauthorized. The circumstances did not give rise to the reasonable suspicion required to authorize a frisk. Nor was the officer’s conduct justifiable as a “minimal self-protective measure”…, which is permissible in furtherance of the common-law right of inquiry, where sufficient concerns for personal safety are present … . The circumstances, viewed as a whole, did not suggest any need for the officer to take such a precaution. At the time of the officer’s intrusion, defendant was not reaching for an area where a weapon might be located, there was no suggestion that a weapon was present or that violence was imminent, and there was no other basis for a self-protective intrusion.

Because the ensuing frisk outside the car, and the resulting arrest, depended on the initial improper intrusion, they were invalid as well. In any event, we also find that the search of the plastic bag following defendant’s arrest was not supported by exigent circumstances … . People v Butler, 2015 NY Slip Op 03458, 1st Dept 4-28-15

 

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