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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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Cross-Examination About the Omission of Exculpatory Information from a Statement Made to Police Is Not the Same as Cross-Examination About the Exercise of the Right to Remain Silent

The First Department noted that defendant was properly cross-examined about the omission of exculpatory information provided in his direct testimony from the statement he had given to police. “After receiving Miranda warnings, and agreeing to provide a statement to the police, defendant made statements that omitted significant exculpatory matter that he included in his trial testimony. Under the circumstances, this was an unnatural omission, and a permissible basis for impeachment…”.  People v Brown, 2015 NY Slip Op 03469, 1st Dept, 4-28-15

 

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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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Statutory Presumption of Possession of Weapons Recovered from Vehicle Confers on Vehicle-Occupants Automatic Standing to Move to Suppress

The First Department determined the People were relying exclusively on the statutory presumption that weapons recovered from inside a vehicle are possessed by all the occupants.  Therefore, the defendant had standing to move to suppress the weapons:

In opposition to defendant’s assertion that the weapon possession charges were based solely on the statutory presumption that weapons recovered from the interior of an automobile are deemed to be possessed by all its occupants (Penal Law § 265.15[3]), the People failed to “point to evidence reasonably tending to show the defendant’s actual or constructive possession” of the two pistols … . Instead, the People asserted that the statutory presumption did not apply, claiming erroneously that the two handguns at issue were recovered from the person of one of the car’s passengers (see Penal Law § 265.15[3][a]). The People concede on appeal that this argument was incorrect, because the two pistols (unlike a revolver found on the person of a passenger) were in fact recovered from a box on the back seat. There is no indication that the motion court relied either on the grand jury minutes or the search warrant affidavit. Because the People failed to adequately demonstrate that the charges relating to the two pistols were not based entirely on the statutory presumption, defendant had automatic standing to challenge seizure of those weapons … . People v Rivera, 2015 NY Slip Op 03396, 1st Dept 4-23-15

 

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Failure to Give the “Missing Witness” Jury Instruction Required Reversal of Defense Verdict—Criteria Explained

The Second Department reversed a defense verdict in a slip and fall case. Chinsamy, the owner and operator of the defendant business which abutted the sidewalk where plaintiff slipped and fell, did not testify at trial.  He had given a deposition about his knowledge of the condition of the sidewalk, which was read to the jury by plaintiff’s counsel.  Plaintiff’s request for the missing witness jury instruction should not have been denied.  Plaintiff was entitled to the instruction even though Chinsamy’s deposition testimony was placed in evidence. The court explained the relevant “missing witness charge” criteria:

A missing witness charge “instructs a jury that it may draw an adverse inference based on the failure of a party to call a witness who would normally be expected to support that party’s version of events. . . The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control’ of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party” … .

Under the circumstances, and considering Chinsamy’s unexplained failure to appear and testify at trial, the Supreme Court should have granted the plaintiff’s request for a missing witness charge … . In this regard, we note that the plaintiff’s use of Chinsamy’s deposition testimony does not constitute a waiver of her right to request a missing witness charge… . Alli v Full Serv. Auto Repair, LLC, 2015 NY Slip Op 03308, 2nd Dept 4-22-15

 

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Admissions In Hospital Records Which Contradicted Plaintiff’s Trial Testimony Properly Admitted/Seat Belt Defense Should Not Have Been Submitted to the Jury—Insufficient Foundation/”Missing Witness” Jury-Instruction Request Not Supported by a Showing the Testimony Would Be “Material” and “Noncumulative”

The Second Department determined the plaintiff’s admission, contained in the hospital records, that he was not wearing a seat belt at the time of the collision was properly admitted at trial.  Although the statement was not relevant to diagnosis or treatment, it was admissible because it contradicted plaintiff’s trial testimony (plaintiff testified he was wearing a seat belt at the time of the accident). However, Supreme Court should not have submitted the seat belt defense to the jury because there was no foundational testimony explaining precisely how wearing a seat belt would have minimized plaintiff’s injuries.  The Second Department also noted plaintiff’s request for a missing witness jury instruction was properly denied because there was no showing the witness would have provided material, noncumulative testimony:

A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient … . However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting the party to the entry” … . At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein … . Accordingly, the challenged entries were properly admitted into evidence.

Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, the court nonetheless erred in submitting the seat belt defense to the jury, since the defendants failed to demonstrate, by competent evidence, that the plaintiff’s injuries would have been minimized had he been wearing a seat belt at the time of the accident … . At trial, both of the plaintiff’s treating physicians testified in general terms that use of a seat belt can reduce the risk of injury. This evidence was insufficient to satisfy the defendants’ burden of proof … . Robles v Polytemp, Inc., 2015 NY Slip Op 03341, 2nd Dept 4-22-15

 

 

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Defendant’s Hospital Records Properly Admitted—Physician-Patient Privilege Waived by Defense Counsel’s Attempt to Show (During Cross-Examination of Police Officers) that Defendant’s Conduct Was Related to a Medical Condition, Not Intoxication

The Second Department determined defendant’s hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant’s conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15

 

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Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed

The Second Department reversed defendant’s convictions, dismissed the counts which violated the merger doctrine, and ordered a new trial on the remaining counts.  The merger doctrine precluded the kidnapping counts because the restraint of the complainants was inseparable from the burglary count of which defendant was convicted. Supreme Court should have suppressed statements made after defendant invoked his right to counsel and should not have allowed identification evidence stemming from a lineup about which defendant’s attorney was not informed. On remand, the court must conduct an “independent source” hearing to determine if the witness can identify the defendant without reliance on the tainted lineup. The Second Department also noted that prior uncharged-crime evidence was improperly admitted to prove “identity:”

The defendant correctly contends that his conviction of four counts of kidnapping in the second degree must be vacated by virtue of the merger doctrine. Under the circumstances of this case, the merger doctrine precludes the convictions of kidnapping in the second degree because the restraint of the complainants was essentially incidental to and inseparable from the count of burglary of which the defendant was convicted … . …

…[T]he hearing court erred in denying those branches of his omnibus motion which were to suppress a statement that he made to law enforcement officials and lineup identification testimony. “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . The defendant, who was in custody, invoked his right to counsel prior to waiving his Miranda rights (see Miranda v Arizona, 384 US 436, 444) and giving a statement to law enforcement officials. Since the defendant gave a statement to those officials in the absence of counsel, and after the right to counsel had indelibly attached, the Supreme Court should have suppressed the statement.

Similarly, the defendant’s right to counsel was also violated when police officers conducted a lineup without apprising the defendant’s attorney and affording the attorney a reasonable opportunity to participate … . Since there was no independent source hearing conducted in connection with an in-court identification of the defendant by one of the complainants, the Supreme Court must conduct a hearing, unless waived by the defendant, to determine whether there was an independent source for the in-court identification or, conversely, whether that identification was tainted by the improperly conducted lineup, and thereby rendered inadmissible … . People v Garnes, 2015 NY Slip Op 03381, 2nd Dept 4-22-15

 

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