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Revocation of Driver’s License for Refusal of the Chemical Test Reversed—No “Reasonable Suspicion” to Justify Vehicle Stop

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Allowing a Detective Who Was Involved in the Investigation of Defendant’s Case to Testify as an “Expert” Was Error (Harmless Here However)–Although the Detective Was Ostensibly to Testify as an Expert Who Could “Translate” Code Words Used in Recorded Conversations, His Testimony Extended into Many Areas Which Did Not Involve Code Words, Thereby Imbuing HIs Entire Testimony with an Aura of Expertise—Such Improper “Expert” Testimony Usurps the Jury’s Role

Although the error was deemed harmless here, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined it was error to allow a detective, who was involved in the underlying murder investigation, to testify as an “expert.” The detective was asked to explain the meaning of so-called “code words” used in recorded conversations admitted into evidence. But it was clear that the trial court allowed the detective to testify as an “expert” on matters that had nothing to do with translating code words.  As a result, the detective’s testimony was imbued with an aura of expertise which could have improperly added weight to his testimony in the eyes of the jury.  Because this issue has not been addressed by New York courts, the Court of Appeals turned to two Second Circuit cases which held the improper “expert” testimony, on topics not beyond the “ken of the jurors,” usurped the jury’s role:

We have, for example, permitted expert testimony by a police sergeant respecting the way in which street-level drug sales are transacted to help a jury understand why the failure to recover drugs or marked buy-money from an individual apprehended in a buy-and-bust operation is not necessarily indicative of the accused’s misidentification (People v Brown, 97 NY2d 500 [2002]). It is instructive to note, however, that the testimony of the sergeant in Brown was carefully limited by the trial court to a discrete issue beyond the ken of ordinary jurors, and that the sergeant was not himself involved in the underlying investigation and gave no testimony as to what had actually occurred during the buy-and-bust there involved. The situation is very different where a police officer, qualified as an expert, has participated in the investigation of the matter being tried and, with the mantel of an expert steeped in the particulars of the case, gives seemingly authoritative testimony directly instructive of what facts the jury should find. Our cases have not dealt with this problematic scenario, but those of the Second Circuit, most notably United States v Mejia (545 F3d 179 [2d Cir 2008]) and United States v Dukagjini (326 F3d 45 [2d Cir 2002]), have.

In both of those cases, law enforcement officers involved in the investigations upon which the defendants’ prosecutions were founded were duly qualified as experts but permitted to testify as apparent experts beyond their expertise and upon matters well within the grasp of lay jurors. In exploring the full reach of the permission they had been afforded, they became summation witnesses, instructing the jury comprehensively and with an aura of expertise, as to how the particular factual issues presented in each case should be resolved. This, said the Mejia court, amounted to a “usurpation of the jury’s role” (545 F3d at 191), and was objectionable as well, in both Mejia and Dukagjini, for operating to inject hearsay into the evidentiary mix and to abridge the defendants’ constitutional right to confront the witnesses against them; both case agent witnesses, as putative experts, had premised their testimony largely on inadmissible out-of-court statements, even when that testimony ceased to be expert and went only towards proving particular facts. People v Inoa, 2015 NY Slip Op 04790, CtApp 6-10-15

 

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Once Payment of a No-Fault Claim Submitted by the Medical Provider to the Insurer Is Overdue (Because the Insurer Has Not Timely Denied, Paid or Asked for Verification of the Claim) the Medical Provider Is Entitled to Summary Judgment Upon the Submission of Proof, in Admissible Form, that the Statutory Claim Form Was Mailed to and Received by the Insurer—The Medical Provider Need Not Submit Proof of the Validity of the Underlying Medical Services

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined, once a no-fault claim is overdue (because the insurance company has not denied the claim, asked for verification of the claim, or paid the claim, within the statutory time-period), the plaintiff-medical-provider is entitled to summary judgment on the overdue claims after submitting proof the statutory claim forms were mailed to and received by the insurer.  There is no requirement that the plaintiff submit proof of the validity of the underlying medical services:

…[T]he Appellate Division properly determined that plaintiff met its prima facie summary judgment burden. As relevant here, to support its motion, plaintiff submitted the eight verification of treatment forms and Matatov’s affidavit. The documents submitted by plaintiff meet the business records exception to the hearsay rule.

Malatov’s [the billing agent’s] affidavit states that based on his business agreement with plaintiff, SUM Billing created the verification of treatment forms in the regular course of its business and that the forms were created soon after the services were provided by plaintiff … . Indeed, the tight timetable of the no-fault scheme requires prompt submission of proof of claim in order to receive reimbursement. Matatov’s affidavit outlines the office practices and procedures used by SUM Billing to mail claim forms to insurers and demonstrates that Matatov himself mails the forms. Matatov explained that SUM Billing relies on these forms in the performance of its business. Further, the affidavit states how and when the forms at issue here were created and that they were mailed to defendant within the statutory time frame. Thus, as plaintiff was able to demonstrate SUM Billing’s office mailing practices and procedures, “a presumption arises that those notices have been received by the insure[rs]” … . It is undisputed that defendant did not pay or deny seven out of the eight claims at issue. Consequently, those claims are overdue. Plaintiff, therefore, satisfied its burden on summary judgment by demonstrating the mailing of the proof of claim forms, and their receipt by the insurer. Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787, CtApp 6-10-15

 

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No “Reasonable Suspicion” Justifying Vehicle Stop—Revocation of License for Refusal of Chemical Test Reversed

Petitioner was arrested for driving while intoxicated and refused the chemical test.  As a result petitioner’s license was revoked by an administrative law judge.  The Second Department annulled the determination of the Department of Motor Vehicles Appeals Board (which upheld the revocation).  The court determined the arresting officer did not have “reasonable suspicion” justifying the initial stop.  Petitioner was in a parked car with the engine running. The officer parked behind petitioner’s car, blocking any exit, and then approached the car. Only then did the officer notice signs of intoxication:

At a hearing held pursuant to Vehicle and Traffic Law § 1194, the hearing officer is required to determine, inter alia, whether the police lawfully arrested the operator of the motor vehicle for operating such vehicle while under the influence of alcohol or drugs in violation of Vehicle and Traffic Law § 1192 … . In order for an arrest to be lawful, the initial stop must itself be lawful (see People v De Bour, 40 NY2d 210, 222). Under the circumstances of this case, where the officer prevented the petitioner from departing, activated his vehicle’s emergency lights, and shined a light into the petitioner’s parked vehicle, a forcible stop and detention occurred … . The Department of Motor Vehicles, however, failed to establish that there was reasonable suspicion to justify the forcible stop and detention of the petitioner’s person or vehicle … and, accordingly, the challenged determination cannot be sustained. Matter of Stewart v Fiala, 2015 NY Slip Op 04857, 2nd Dept 6-10-15

 

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Seizure of Evidence from the Pocket of the Defendant After a Pat-Down Search on the Street Not Justified Under the “Inevitable Discovery” Exception to the Warrant Requirement—the Doctrine Does Not Apply to “the Very Evidence Obtained in the Illegal Search”—A Justification for the Search and Seizure Not Relied Upon by the People Below Can Not Be Raised on Appeal

The Second Department determined defendant’s motion to suppress jewelry taken from his pocket after pat-down search on the street should have been granted.  At the suppression hearing, the People did not argue that the officer who stopped the defendant had probable cause to arrest the defendant at the time of the pat-down search.  Therefore, the Second Department noted, that argument could not be raised by the People on appeal. At the suppression hearing, the People argued that the jewelry was admissible under the “inevitable discovery” exception to the warrant requirement. However, the “inevitable discovery” exception does not apply to “the very evidence obtained in the illegal search:”

At the suppression hearing, the People expressly disclaimed reliance on the theory that the search of the defendant and the seizure of the jewelry from his pants pocket was justified because the police had probable cause to arrest the defendant at the moment he was stopped, and the hearing court did not address that theory. Thus, the People may not assert this theory on appeal … . Instead, the People argued that the jewelry inevitably would have been discovered, and the Supreme Court relied on that theory in denying that branch of the defendant’s motion which was to suppress the jewelry. The court properly determined that the record does not support a finding that the police officer legitimately believed that the jewelry might be some kind of weapon … . However, as the People now correctly concede, the court erred in its determination that the jewelry inevitably would have been discovered through normal police procedures, as the inevitable discovery doctrine does not apply to primary evidence, that is, “the very evidence obtained in the illegal search,” such as the jewelry at issue here … . Accordingly, that branch of the defendant’s motion which was to suppress the jewelry should have been granted. People v Henagin, 2015 NY Slip Op 04864, 2nd Dept 6-10-15

 

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Hearsay Statement Did Not Meet the “Reliability” Requirement for Admissibility as a Statement Against Penal Interest

The First Department determined defendant’s friend’s alleged hearsay statement that he, not defendant, assaulted the victim was properly precluded. The statement did not meet the “reliability” requirement for admissibility as a statement against penal interest (an exception to the hearsay rule):

This hearsay evidence did not satisfy the reliability requirement for admissibility under the exception for declarations against penal interest …, or under a due process theory … . Defendant’s friend told defense counsel that he neither committed the assault nor made the alleged statements, the statements were contradicted by trial witnesses who testified that the friend was nearby but did not participate in the assault, the statements were allegedly made to persons closely aligned with defendant, and recorded phone calls raised suspicion that defendant had made efforts to manufacture exculpatory evidence. All these factors undermined any reliability this hearsay evidence may have had … . People v Jones, 2015 NY Slip Op 04781, 1st Dept 6-9-15

 

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Child’s Out-of-Court Statements Alleging Sexual Touching Were Not Corroborated—the Child’s Repeating the Same Allegations to Several Persons Does Not Constitute Corroboration—Neglect and Derivative Neglect Findings Reversed

The Third Department determined that the child’s out-of-court stated alleged sexual touching (by Makenzie) were not sufficiently corroborated. The findings of neglect and derivative neglect based on the statements were reversed:

While the out-of-court statements made by a child relating to any allegations of abuse or neglect are admissible in Family Ct Act article 10 proceedings, they must be corroborated in order to “be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046 [a]…). The purpose of this requirement is to establish the reliability of the hearsay statements, and Family Court has considerable discretion to determine the sufficiency of corroborative evidence … . Such a statement “may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient” … . Nevertheless, we conclude that petitioner failed to satisfy its burden here.

Family Court’s conclusion, based upon our decision in Matter of Brandon UU. (193 AD2d 835 [1993]), that sufficient corroboration existed because the child pointed to the area where she claimed respondent had pinched her, is misplaced. The determination in Matter of Brandon UU. (supra) was based on the child’s consistent account of sexual abuse coupled with the expert testimony that the child was being truthful (id. at 837). Here, there was no expert testimony and the child’s demonstration, without more, is part of the out-of-court statement itself and insufficient as corroboration … .

Likewise, there is no merit to petitioner’s argument that the child’s repetition of consistent accounts of the abuse to the grandmother, social worker and detective serve as sufficient corroboration. It is well settled that “repetition of an accusation by a child does not corroborate [that]; child’s prior account” … . The lack of any proof “validating the child’s account or relating any of her past or present conduct or characteristics to the alleged sexual abuse” requires reversal of the finding of neglect as to Makenzie on the ground that the out-of-court statements were not sufficiently corroborated … . Matter of Katrina CC, 2014 NY Slip Op 04094, 3rd Dept 6-5-14

 

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Finding of Neglect of One Child by Consent Is Admissible In a Derivative Neglect Proceeding Re: Another Child—Criteria for Derivative Neglect Explained

The Second Department determined Family Court erred when it held that a finding of neglect of one child (Akasha) by consent could not be used to demonstrate the neglect of another child (William, Jr.).  The court went on to explain the criteria for a derivative neglect finding (not all of which is quoted here):

The entry of a finding of neglect of one child may not be made without a factual basis, even upon consent … . Thus, entry of a finding of neglect as to a child clearly constitutes proof that that child was neglected, even if the order was entered upon consent … . Accordingly, such a fact-finding order is admissible with respect to the issue of whether the parent derivatively neglected another child (see Family Ct Act § 1046[a];[i]…). Consequently, the Family Court erred in holding that the neglect finding as to Akasha was not admissible evidence in the neglect proceeding as to William, Jr. The neglect finding as to Akasha was proof that the mother neglected Akasha and was, thus, admissible evidence in the proceeding regarding William, Jr., even though the finding as to Akasha was entered on the mother’s consent.

Further, while the proof of the neglect as to Akasha was admissible with respect to this proceeding alleging derivative neglect of William, Jr., “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings”… . Rather, “the focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood. * * *  Matter of William N, 2014 NY Slip Op 04012, 2nd Dept 6-4-14

 

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New Trial Required Because State’s Experts Testified Based On Hearsay Not Demonstrated to Have Been Reliable

The Second Department determined a new civil commitment trial was required because the experts based their testimony in part upon hearsay which had not been demonstrated to be reliable:

As recently held by the Court of Appeals in Matter of State of New York v Floyd Y. (22 NY3d 95, 109), “[d];ue process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding. In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria. First, the proponent must demonstrate through evidence that the hearsay is reliable. Second, the court must determine that the probative value in helping the jury evaluate the [expert’s]; opinion substantially outweighs [its]; prejudicial effect’ (cf. Fed Rules Evid rule 703). These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.”… .

Here, both of the State’s experts testified to the appellant’s convictions, as well as unproven acts, which formed the basis of their opinion that the appellant suffered from a mental abnormality. The experts provided considerable hearsay testimony concerning these unproven acts, relying, inter alia, upon hearsay evidence within probation reports and other documents, and not personal knowledge. The State failed to demonstrate through other evidence that the aforementioned hearsay testimony was reliable … . As the State failed to establish that the hearsay was reliable, the Court need not determine whether the probative value of such hearsay outweighed its prejudicial effect… . Matter of State of New York v Walter R, 2014 NY Slip Op 04020, 2nd Dept 6=4=14

 

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Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense—Proof Burdens for “Harmless Error” and the Justification Defense Explained

The Court of Appeals determined the Appellate Division properly found that the “unwarned” statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy’s apartment when a police officer asked him “what happened?”. Under the circumstances, “a reasonable 11 year old would not have felt free to leave” at the time the question was asked.  Therefore the question amounted to “custodial interrogation” in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy’s defense of justification. There was no question Delroy stabbed the 12-year-old complainant.  But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for “harmless error” and the justification defense, the Court of Appeals explained:

A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … . “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” … .

The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” … . The People bear the burden of disproving the defense of justification beyond a reasonable doubt … . * * *

…[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15

 

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