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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence:

… [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. “While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence” … . Based on this record, we conclude that County Court’s determination “was based on hearsay alone and therefore cannot stand” … . People v Hawkey, 2025 NY Slip Op 00569, Fourth Dept 1-31-25

Practice Point: Hearsay is admissible at a probation revocation hearing, but hearsay alone will not support revocation.

 

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“MOLINEUX” EVIDENCE DEFENDANT HAD PREVIOUSLY THREATENED HIS WIFE WITH A HANDGUN FOR PERCEIVED INFIDELITY SHOULD NOT HAVE BEEN ADMITTED IN THIS PROSECUTION ALLEGING DEFENDANT POSSESSED A HANDGUN WITH THE INTENT TO USE IT AGAINST HIS STEPCHILDREN; NEW TRIAL ORDERED; THE PEOPLE’S FAILURE TO FILE A REDUCED ACCUSATORY INSTRUMENT AFTER THE JUDGE REDUCED THE CHARGE IN COUNT 3 REQUIRED DISMISSAL OF THAT COUNT (FOURTH DEPT).

The Fourth Department determined that the judge’s Molineux ruling was an error requiring reversal and the People’s failure to file an amended accusatory instrument after the judge reduced the charge required dismissal of the related count:

… [T]he charge of criminal possession of a weapon in the second degree is based on allegations that defendant possessed a handgun with the intent to use it unlawfully against his stepchildren, and the People sought to admit the evidence of defendant’s “systematic abuse” of his wife to show defendant’s motive, intent, absence of mistake, and identity in this case. The evidence, however, is not directly relevant to motive. The evidence of defendant’s past conduct demonstrated a pattern of threatening his wife with the gun for perceived infidelity, but it did not complete a narrative that would explain or support defendant’s sudden aggression against his stepchildren … . The evidence also is entirely unnecessary to establish defendant’s intent. Mere possession of a firearm is “presumptive evidence of intent to use [it] unlawfully against another” (Penal Law § 265.15 [4]). Further, there is no question whether defendant’s alleged actions were the result of accident or mistake … , and defendant’s identity is not at issue.

Moreover, even if the evidence is relevant to an exception under Molineux, the court abused its discretion in determining that its probative value outweighed its potential for prejudice … . Evidence that defendant previously threatened his wife with a gun showed that defendant ” ‘had allegedly engaged in similar behavior on a prior occasion . . . —classic propensity evidence’ ” … . It is ” ‘of slight value when compared to the possible prejudice to [defendant]’ and therefore should not have been admitted” … .

… [B]efore jury selection and at the People’s request, the court reduced the charge in count 3 of the indictment from criminal possession of a weapon in the third degree … to criminal possession of a weapon in the fourth degree … . The People thereafter failed to file a reduced or amended accusatory instrument. Inasmuch as ” ‘[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , count 3 of the indictment must be dismissed … . People v Alexander, 2025 NY Slip Op 00539, Fourth Dept 1-31-25

Practice Point: Consult this decision for a clear demonstration of when evidence of a prior bad act which is similar to the charged offense should be excluded because the prejudice outweighs the probative value.

Practice Point: If the judge grants the People’s request to reduce a charge prior to jury selection, the People must file a reduced accusatory instrument. Failure to do so requires dismissal of the related count in the indictment.

 

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THE JUDGE’S FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION IN THIS ARSON/MURDER CASE REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s arson, murder and reckless endangerment convictions, determined the trial judge should have given the circumstantial evidence instruction to the jury:

“It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … . …[T]his was not a case with ” ‘both direct and circumstantial evidence of . . . defendant’s guilt,’ ” which would negate the need for a circumstantial evidence charge … . Indeed, none of the evidence presented at trial “prove[d] directly a disputed fact without requiring an inference to be made” … .

Further, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . Although ” ‘overwhelming proof of guilt’ cannot be defined with mathematical precision” … , it necessarily requires more evidence of guilt than proof beyond a reasonable doubt. If that were not so, all errors would be harmless in cases where the verdict is not against the weight of the evidence … .

Here, the strongest evidence linking defendant to the crime is the video surveillance recording. As noted, that video, which is grainy and shot from a distance, depicts a flickering or glow as defendant exits the premises, which promptly grows into a blaze as defendant walks away. There is no way to discern from the video the exact moment that the fire is set or precisely how the fire began. “In order for the jury to find defendant guilty it had to make a number of logical leaps connecting defendant to the crimes charged. Had the trial court given the circumstantial evidence charge, alerting the jury of the need to exclude to a moral certainty every other reasonable hypothesis of innocence,” we conclude that the verdict may have been different … . People v Exford, 2025 NY Slip Op 00536, Fourth Dept 1-30-25

Practice Point: In this arson and murder case, the failure to give the circumstantial-evidence jury instruction warranted a new trial. The jury was required to make several “logical leaps,” based upon grainy video evidence showing defendant walking away from a building which caught fire, to convict.

 

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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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EVIDENCE THAT THE AREA BELOW THE STAIRS WHERE PLAINTIFF SLIPPED AND FELL HAD BEEN RECENTLY MOPPED, TOGETHER WITH TESTIMONY THAT THE STAIRS WERE WET, WARRANTED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the evidence that the stairs had recently been mopped and were wet when plaintiff slipped and fell was sufficient to warrant summary judgment:

… [T]he plaintiffs submitted a transcript of the injured plaintiff’s deposition testimony, wherein she noted that after she fell, her pants and the bottom of her shirt became wet. The plaintiffs also submitted a transcript of the deposition testimony of their son, who testified that when he came to the lobby to help his mother, the floor and the stairs were wet and the stairs felt slippery under his feet. That testimony, along with the surveillance video [of the area below the stairs being mopped], established the plaintiffs’ entitlement to judgment as a matter of law on the issue of liability against the defendant. In opposition, the defendant failed to raise a triable issue of fact. Tkachuk v D&J Realty of N.Y., LLC, 2025 NY Slip Op 00472, Second Dept 1-29-25

Practice Point: Video evidence showing the area below the stairs being mopped, together with testimony the stairs were wet, warranted the award of summary judgment to the plaintiffs.

 

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DURING SUMMATION THE PROSECUTOR REPEATEDLY ACCUSED DEFENDANT OF LYING, VOUCHED FOR THE CREDIBILITY OF THE COMPLAINANT AND MISSTATED CRITICAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the attempted murder and burglary convictions were against the weight of the evidence and prosecutorial misconduct deprived defendant of a fair trial:

… [D]uring summation, the prosecutor, inter alia, repeatedly accused the defendant of lying, improperly vouched for the credibility of the complainant, and misstated the critical evidence to support the charge of attempted murder in the second degree. Indeed, the prosecutor repeatedly accused the defendant of lying on the witness stand by stating, among other things, that the defendant was “caught in a lie” and was being “less than truthful,” and that “[w]hen she thinks it is going to benefit her, she is quick to tell you a lie” … . The prosecutor also improperly stated that to believe the defendant’s version of the events, the jury would have to believe “that [the complainant] is lying about everything she told you, you have to believe she’s a complete liar,” that the police officers “are lying too,” and that “[e]veryone is out to get this defendant” … . Additionally, the prosecutor improperly vouched for the complainant’s credibility by repeatedly telling the jury that the complainant was, inter alia, “honest” and “telling the truth,” and that her testimony “was plausible and true” … . Further, the prosecutor misstated the critical evidence as to a doctor’s testimony regarding the depth of the stab wound to puncture the complainant’s chest cavity by stating that “at a minimum it would need to be a[n] inch or two to puncture someone’s chest cavity” … . Rather, the doctor estimated that the stab wound would have to be “about an inch” deep. As this evidence was critical to support the charge of attempted murder in the second degree, the prosecutor’s remarks were improper. People v Gallardo, 2025 NY Slip Op 00460, Second Dept 1-29-25

Practice Point: Here the prosecutor, in summation, accused defendant of lying, vouched for the credibility of the complainant, and misstated critical evidence. That was enough to warrant a new trial.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 TRIAL TO DETERMINE WHETHER THE RESPONDENT, WHO HAD SERVED HIS SENTENCE FOR SEXUAL OFFENSES, REQUIRED CIVIL MANAGEMENT, HEARSAY BASED EXPERT EVIDENCE OFFERED BY THE STATE AND EVIDENCE FROM ONE OF RESPONDENT’S VICTIMS SHOULD NOT HAVE BEEN EXCLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the jury’s finding that respondent did not suffer from a mental abnormality requiring civil management, determined that hearsay based expert evidence offered by the state, and evidence of violence and sexual offenses offered by one of respondent’s victims should not have been excluded:

… [T]he State’s expert should have been permitted to give hearsay basis testimony regarding a statement made to her by the respondent’s sexual abuse victim. “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” … . Here, the State established the reliability of this hearsay basis testimony since the respondent was convicted of sexual abuse in the first degree with respect to this victim … .. Moreover, the probative value of this hearsay basis testimony in helping the jury evaluate the expert’s opinion testimony substantially outweighed its prejudicial effect … .

The Supreme Court also erred in precluding a certain witness from testifying at trial regarding violence and sexual offenses that the respondent allegedly committed against her. The witness’s proposed testimony, which was not hearsay … , was relevant to the issue of whether the respondent suffered from a mental abnormality … , and the probative value of such testimony outweighed its prejudicial impact, particularly since the State’s expert expressly considered this proposed testimony in forming her opinion that the respondent suffered from sexual sadism … . Matter of State of New York v Kevin W., 2025 NY Slip Op 00455, Second Dept 1-29-25

Practice Point: Hearsay based expert evidence is admissible in a Mental Hygiene Law Article civil-management 10 trial if it is reliable and if its probative value outweighs its prejudicial effect.

 

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PLAINTIFF WAS CROUCHING DOWN MARKING THE FLOOR WITH DUCT TAPE WHEN A LADDER FELL OVER AND STRUCK HIM; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defense motion for judgment for summary judgment in this Labor Law 240(1) action should not have been granted and plaintiff’s cross-motion for summary judgment should have been granted. Plaintiff was crouching down marking off areas of the floor with duct tape when an ladder fell over and struck him, causing him to lose consciousness:

The elevation differential involved here cannot be described as de minimis … . The evidence also established that the ladder was not adequately secured for the purposes of the undertaking … .

… [P]laintiff established prima facie entitlement to summary judgment through his deposition testimony that he was struck by a ladder that was not properly secured. … [I]t was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker. Nor could a worker knocking over the ladder be considered an intervening superseding cause in this case … . Silva v 770 Broadway Owner LLC, 2025 NY Slip Op 00299, First Dept 1-21-25

Practice Point: Here plaintiff was marking the floor with duct tape when a ladder which had been leaning against a wall fell over and struck him. It was foreseeable that an unsecured ladder could fall over. If a worker knocked it over, that would be foreseeable as well and would not be a superseding cause.

 

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THE IMPOUNDMENT OF DEFENDANT’S VEHICLE WAS NOT DEMONSTRATED TO HAVE BEEN NECESSARY AND THE PROCEDURES FOR AN INVENTORY SEARCH OF THE VEHICLE WERE NOT FOLLOWED; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, granting defendant’s motion to suppress a handgun, over a dissent, determined the impoundment of defendant’s vehicle after a traffic stop was unnecessary and the search of the vehicle was not a valid inventory search:

Maggs’ [the arresting officer’s] ambiguous testimony — essentially asserting that any vehicle parked on the street would be unsafe if unattended — falls short of demonstrating that the subject vehicle was not reasonably secure and safe in this residential area, among the many other vehicles parked curbside … . Further, although departmental policy did not require Maggs to investigate whether defendant’s father, who was not present at the scene, was in fact willing and able to take control of the vehicle, “facts were brought to [Maggs’] attention to show that impounding would be unnecessary” … . Moreover, defendant’s inquiry as to whether the vehicle could be picked up at some later point is tantamount to a request to leave the vehicle where it was, presenting yet another situation in which a vehicle should not be towed per written departmental policy. Given the People’s failure to demonstrate that the vehicle was lawfully impounded at the time of the inventory search, defendant’s motion should have been granted.

The People also failed to demonstrate that the so-called inventory search was conducted in compliance with established procedures … . * * *

There is also considerable indicia that the purported inventory search was a pretext to search for contraband, including the canvassing of defendant’s residence, the absence of any traffic citation, and the fact that the decision to arrest defendant and impound the vehicle came only after defendant refused to provide his consent to search the vehicle … . People v Gray, 2025 NY Slip Op 00249, Third Dept 1-16-25

Practice Point: Here the vehicle could have been safely left parked where it was, or it could have been picked up by someone. To impound the vehicle therefore violated the police department’s regulations. Because the People did not prove the vehicle was legally impounded at the time it was searched the suppression motion should have been granted.

Practice Point: The hallmark of a valid inventory search is an inventory list, which was not created here.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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