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Multiplicitous Indictment Counts Dismissed/Warrantless Search of Impounded Vehicle Upheld

The Third Department determined several counts of an indictment stemming from a fatal car accident (involving reckless driving under the influence) were multiplicitous and further determined the warrantless search of the impounded vehicle was valid:

An indictment “is multiplicitous when a single offense is charged in more than one count” (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . “Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous” … .

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13 [3]). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14 (3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of Vehicle and Traffic Law § 1192 (2), (3) or (4-a) thereby causing the death of another person (see Penal Law § 125.12 [1]).

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim, differing only in the nature of defendant’s impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3], [4-a]). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12 (1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 … . * * *

Testimony at the suppression hearing established that, at the request of law enforcement, defendant’s vehicle was removed from the accident scene and taken to an unsecured lot, where it remained for several hours until it was transported — at the direction of a Rensselaer County deputy sheriff — to a secure impound lot. While defendant does not contest the initial towing from the accident scene, he claims that the seizure of the vehicle from the unsecured lot to the secured lot was unconstitutional. We disagree. “It is well settled that once the police possess a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would produce the fruits, instrumentalities, contraband or evidence of the crime the police can conduct[] a warrantless search and seizure of the vehicle” … . Here, the vehicle was moved from a lot where it was easily accessible to any member of the public to the secure lot only after it became clear that it was involved in a fatal accident. People v Hoffman, 2015 NY Slip Op 05976, 3rd Dept 7-9-15

 

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Substantial Evidence Did Not Support Maltreatment Report

The Third Department determined the Commissioner of Children and Family Services should have granted the petition to expunge and amend as unfounded a maltreatment report maintained by the Central Register of Child Abuse and Maltreatment. Although the denial could properly be based upon hearsay and double hearsay, the maltreatment finding was not based upon substantial evidence:

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 … . Our review is limited to assessing whether the determination is supported by substantial evidence, meaning “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .

Here, the proof introduced against petitioner consisted solely of the investigation progress notes and a Family Court order from 1998 that adjudicated petitioner to have neglected another son. The progress notes were prepared by a child protective services caseworker and include her accounts of interviews with numerous individuals, including the child and his therapist, that led her to the conclusion that maltreatment had occurred. Neither the caseworker nor her interview subjects testified before the Administrative Law Judge, however, and the progress notes reflect that the child bore no marks or evident injuries as a result of the maltreatment. In contrast to this meager evidentiary showing, petitioner and his wife both testified and denied that any maltreatment had occurred. Petitioner also asserted, without contradiction, that he was physically incapable of engaging in some of the claimed maltreatment, such as lifting the 110-pound child with one hand. His wife further stated that the child admitted to her that he was lying about the alleged maltreatment. The record suggests a reason why the child might be prompted to lie, as a bitter custody dispute between petitioner and the child’s mother has led to numerous unfounded reports of mistreatment regarding petitioner.

Like any administrative determination, one made after an expungement hearing may be based solely upon hearsay evidence — or even double hearsay evidence — in the appropriate case … . As such, “our concern is not the hearsay nature of the evidence, but whether it is sufficiently relevant and probative to constitute substantial evidence” … . Hearsay evidence will not satisfy that standard if the facts it purportedly establishes are “seriously controverted” … . Serious controversy is precisely what surrounds the hearsay evidence here, given the hearing testimony that the maltreatment had not occurred and that the child had recanted his claims, the proof that motivations may have existed for the child to fabricate the maltreatment, and the total lack of physical evidence suggesting that it occurred. We accordingly agree with petitioner that substantial evidence does not support the challenged determination, which must be annulled as a result … . Matter of Gerald HH. v Carrion, 2015 NY Slip Op 05982, 3rd Dept 7-9-15

 

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In the Absence of Prejudice to Defendants, It Was Not Error to Allow Evidence of a Theory of Liability Not Explicitly Referenced in the Complaint and Bill of Particulars

The Third Department determined evidence of a theory of liability that was not explicitly included in the pleadings and bill of particulars was not error. The theory was implicit in the pleadings and the defendants could not have been surprised by the related evidence. The court noted it would have been better had the plaintiffs moved to conform the pleadings to the evidence:

Generally, a party is limited to presenting evidence at trial that supports a cause of action or theory of recovery that was either pleaded in the complaint or asserted in the bill of particulars … . However, evidence concerning a specific theory or injury not mentioned in the bill of particulars may nonetheless avoid exclusion where such proof necessarily flows from the information conveyed in the pleadings and where the defendants should have been aware of the basis thereof… .

The contested theory of liability in this case is based on the allegedly erroneous interpretation of plaintiff’s February CT scan by Beatty (hereinafter referred to as the Beatty theory). It is worth noting that, because the complaint and bills of particulars do not contain an express articulation of the Beatty theory, the better practice certainly would have been for plaintiff to seek leave to amend his pleadings in advance of trial or at least have moved to conform the pleadings to the proof after the trial was underway. However, we nonetheless find that Supreme Court’s determinations allowing plaintiff to advance the Beatty theory at trial, including permitting plaintiff’s expert to offer testimony on the theory, do not constitute reversible error. In our view, the complaint— * * * which reference[s] the February CT scan as a basis for a departure from accepted medical practice — [was] sufficient to notify defendants of the Beatty theory and, as such, permit that theory of liability to be advanced at trial without prejudice. Simply put, we are unpersuaded by defendants’ position that they were not aware of the Beatty theory as a basis for a potential finding of medical malpractice. Boyer v Kamthan, 2015 NY Slip Op 05983, 3rd Dept 7-9-15

 

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Criteria for Negligent Care of a Child by a Nonparent Explained—Effect on Proof Requirements of Amnesia Suffered by the Injured Party Noted

In concluding summary judgment dismissing the complaint was proper, the Second Department explained the criteria for negligent care of a child by a nonparent and noted the effect of amnesia suffered by the injured party on the plaintiff’s proof requirements:

“A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control. Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” … . Here, in support of her motion for summary judgment, the defendant Joanne Williams submitted evidence sufficient to establish, prima facie, that under the circumstances, she adequately supervised the infant plaintiff … .

In opposition, the plaintiffs failed to raise a triable issue of fact. Although the plaintiffs contend that the infant plaintiff suffered from amnesia as a result of the subject accident and, thus, they are not held to as high of a degree of proof …, the plaintiffs are not relieved of the obligation to provide some proof from which negligence can reasonably be inferred … . Alotta v Diaz, 2015 NY Slip Op 05899, 2nd Dept 7-8-15

 

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Circumstantial Evidence Raised Question of Fact About Whether Respondents Were Responsible for the Placement of an Object Which Fell and Injured Plaintiff

The Second Department determined summary judgment in favor of the respondents should not have been granted.  Plaintiffs had raised a question of fact by producing circumstantial evidence that the respondents, not New York City Transit Authority (NYCTA) employees, were responsible for the placement of a “shoe paddle” in a subway car which fell and injured plaintiff. The court explained the criteria for circumstantial evidence in this context:

“To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff’s proof positively exclude every other possible cause of the accident but defendant’s negligence” … . “Rather, [the plaintiff’s] proof must render those other causes sufficiently remote’ or technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … .

Here, the respondents established their prima facie entitlement to judgment as a matter of law by proffering the testimony of two of their employees denying that they placed the shoe paddle in the subject door. In opposition, the plaintiffs raised a triable issue of fact by submitting the testimony from NYCTA employees, including the testimony of the cleaner of the subject train, that no NYCTA employee placed the shoe paddle in the door, and that the respondents were the only contractors present at the site during the relevant time period. The plaintiffs also submitted NYCTA records showing that as of 11:40 p.m., about three hours prior to the incident, all shoe paddles were in their holders and all doors were free and moving properly. Thus, the plaintiffs raised a triable issue of fact as to whether this circumstantial evidence gives rise to a rational inference that it was more likely or more reasonable that an employee of the respondents placed the shoe paddle in the subject door than an NYCTA employee … . Hernandez v Alstom Transp., Inc., 2015 NY Slip Op 05911, 2nd Dept 7-8-15

 

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Warrantless Search of Parolee’s Car by Detective Was Valid–Detective Was Effectively Functioning As a Parole Officer, Was Aware of an Arrest Warrant Based Upon Defendant’s Alleged Parole Violations, and Was Aware the Defendant, as a Parolee, Had Consented In Writing to the Search of His Person and Property

The Second Department determined the warrantless search of a parolee’s car by a detective who was exercising parole-warrant responsibilities was valid. The detective was aware of defendant’s parole violations and the related warrant for defendant’s arrest. The detective was also aware that defendant, as a parolee, had consented in writing the search of his person and property:

While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee … . The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable … .

Under the circumstances of this case, the detective’s search of the car was “rationally and reasonably related to the performance of the parole officer’s duty” by dint of the detective’s parole responsibilities as a member of the Joint Apprehension Warrant Squad … . Here, no relevant distinction exists between the detective and the defendant’s parole officer … . At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant’s arrest …, and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun … . People v McMillan, 2015 NY Slip Op 05702, 2nd Dept 7-1-15

 

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The People Were Required to Give Pre-Trial Notice of an Out-of-Court Identification of Defendant by Officer Viewing the Controlled Buy from Across the Street—Identification Was Not So Free From the Risk of Undue Suggestiveness that It Could Be Considered Merely “Confirmatory”—Error Was Harmless In the Face of Overwhelming Evidence

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the People were required to provide the pre-trial statutory notice of the intent to introduce evidence of an out-of-court identification of the defendant by the officer (Detective Vanacore) who viewed the underlying controlled drug purchase (by an undercover officer) from across the street. The error was deemed harmless however.  Noting that the identification at issue was not so free from the risk of undue suggestiveness as to render the identification merely “confirmatory,” the court offered a clear explanation of the reasons for the statutory pre-trial notice requirement:

“CPL 710.30 could not be clearer” … . When the People intend to offer at trial “testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such,” the statute requires the People to notify the defense of such intention within 15 days after arraignment and before trial (CPL 710.30 [1] [b]). Not only is “[t]he statutory mandate . . . plain” but the procedure is “simple” … . The People serve their notice upon defendant, the defendant has an opportunity to move to suppress and the court may hold a Wade hearing (see id.). If the People fail to provide notice, the prosecution may be precluded from introducing such evidence at trial.

The notice statute was “a legislative response to the problem of suggestive and misleading pretrial identification procedures” … . In enacting the notice requirement, the Legislature “attempt[ed] to deal effectively with the reality that not all police-arranged identifications are free from unconstitutional taint” … .

The purpose of the notice requirement is two-fold: it provides the defense with “an opportunity, prior to trial, to investigate the circumstances of the [evidence procured by the state] and prepare the defense accordingly” and “permits an orderly hearing and determination of the issue of the fact . . . thereby preventing the interruption of trial to challenge initially the admission into evidence of the [identification]” … . Thus, the statute contemplates “pretrial resolution of the admissibility of identification testimony where it is alleged that an improper procedure occurred” … . * * *

Detective Vanacore’s surveillance of defendant does not constitute an “observation of . . . defendant . . . so clear that the identification could not be mistaken” thereby obviating the risk of undue suggestiveness … . Therefore, the People were required to serve their notice concerning Detective Vanacore’s observations. People v Pacquette, 2015 NY Slip Op 05595, CtApp 6-30-15

 

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Unsigned Deposition Transcripts and Party Admission in Police Report Admissible as Evidence in Support of Summary Judgment Motion

In reversing the grant of summary judgment to the defendant in a vehicle accident case, the Second Department noted the unsigned deposition transcripts of both plaintiff and defendant were admissible for purposes of the motion.  The court also noted that a party admission included in a police report was admissible, while the hearsay report itself was not:

“[T]he failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to a motion where . . . the moving party submits other proof, such as deposition testimony … . Here, the defendant’s certified deposition transcript, although unsigned, was admissible since it was his own testimony that he was proffering in support of his motion and, in effect, he adopted it as accurate … . In addition, the transcript of the plaintiff’s deposition testimony, which was unsigned, was also admissible for the purpose of the defendant’s motion, since the transcript was certified by the reporter and the plaintiff did not challenge its accuracy … .

With respect to the police accident report submitted by the defendant in support of his motion, it was not certified as a business record and thus constituted inadmissible hearsay (see CPLR 4518[a]…), except for that portion of the report which contained a party admission by the plaintiff that she did not have a recollection of the accident … . Gezelter v Pecora, 2015 NY Slip Op 05440, 2nd Dept 6-24-15

 

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The Totality of Circumstances Provided the Police Officer with Reasonable Suspicion of Criminal Activity and Thereby Justified Pursuit of the Defendant

The Second Department determined defendant’s motion to suppress a gun thrown away during a foot pursuit by a police officer was properly denied.  Unusual activity in and around a car (a “Malibu”) in a high crime area gave the police an objective, credible reason to approach the car. Under the totality of the circumstances, when defendant began walking away, the police officer (Detective Tait), having a reasonable suspicion of criminal activity, properly pursued the defendant:

“Police pursuit of an individual significantly impede[s] the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . “Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” … . Here, Detective Talt had reasonable suspicion of criminal activity based on the defendant’s flight, combined with the unusual activity of the occupants of the Malibu, Detective Talt’s knowledge that that specific location was a high-crime area, and his knowledge that contraband could be hidden under a car hood. Accordingly, the court properly declined to suppress the gun. People v Jennings, 2015 NY Slip Op 05497, 2nd Dept 6-24-15

 

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Failure to Take Steps to Verify and Corroborate the Information from a Confidential Source Required Annulment and Expungement of the Misbehavior Determination

The Third Department determined the absence of information corroborating the confidential-source allegations which were the basis for the misbehavior report, coupled with the hearing officer’s failure to interview either the source or the sergeant who obtained the confidential information, required annulment and expungement of the misbehavior determination:

… [C]onfidential information may provide substantial evidence supporting a prison disciplinary determination as long as it is sufficiently detailed and probative that the Hearing Officer may make an independent assessment of the reliability of the information … . Petitioner contends that the Hearing Officer failed to independently assess the reliability of the confidential information considered here. Based upon our review of the record, we must agree. The misbehavior report was the primary evidence supporting the disciplinary determination, as the sergeant who prepared it did not testify at the hearing. The sergeant based the report upon confidential memoranda that she prepared after obtaining incriminating information directly from the confidential source. The memoranda, however, do not contain additional information or corroborating details to facilitate verification of the source’s reliability … . Moreover, the Hearing Officer did not personally interview either the source or the sergeant who obtained the information. In view of this, we agree with petitioner that the necessary independent assessment of the confidential information was lacking and that the determination must be annulled and all references thereto expunged from petitioner’s institutional record … . Matter of Cooper v Annucci, 2015 NY Slip Op 05548, 3rd Dept 6-25-15

 

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