You are here: / Evidence
,

Defendant Was Subjected to Custodial Interrogation Before Waiving His Right to Remain Silent—Oral Pre-Miranda and Written Post-Miranda Statements Should Have Been Suppressed—Error Deemed Harmless

The Second Department determined defendant’s pre-Miranda statements, as well as his post-Miranda written statement, should have been suppressed because the defendant was in custody and interrogated before he waived his right to remain silent.  Defendant had been stopped by two police cars, one of which cut off defendant’s lane of travel. Defendant then consented to going to the police station where he was placed in a locked room and subjected to accusatory questioning.  (The court ultimately determined the error was harmless, however):

Contrary to the suppression court’s determination, the statements made by the defendant at the police station should have been suppressed as the product of custodial interrogation conducted without the benefit of Miranda warnings. “Miranda warnings need not be given until both the elements of police custody’ and interrogation’ are present” … . The issue of whether a suspect is in custody is generally a question of fact … . In deciding whether a defendant was in custody before receiving Miranda warnings, “the subjective beliefs of the defendant are not to be the determinative factor” … . Nor does the determination turn on the subjective intent of the police officer … . Rather, the test is “what a reasonable man [or woman], innocent of any crime, would have thought had he [or she] been in the defendant’s position” … . “[T]he term interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” … .

Here, a reasonable, innocent person would not have believed that he or she was free to leave the police station at the time the defendant made his oral statements to the police … . Moreover, the questions by the police were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . Accordingly, the oral statements made by the defendant at the police station were the product of custodial interrogation without Miranda warnings and should have been suppressed. Furthermore, the written statement by the defendant, although created after Miranda warnings were issued, also should have been suppressed, as there was no attenuation between the statements that were obtained unlawfully and the written statement … . People v Reardon, 2015 NY Slip Op 00394, 2nd Dept 1-14-15

 

,

Detective’s Testimony About a Non-Testifying Witness’ Description of the Perpetrator Properly Admitted to Explain Detective’s Subsequent Actions and Complete the Narrative

The Second Department, over an extensive dissent, determined a detective’s testimony about a non-testifying witness’ (Anderson’s) description of the perpetrator was admissible for the non-hearsay purpose of explaining the detective’s subsequent actions, and completing the narrative of events:

The jury was specifically instructed not to consider this description for its truth, and the description was properly admitted for the relevant, nonhearsay purpose of “establishing the reasons behind the detective’s actions, and to complete the narrative of events leading to the defendant’s arrest” … . Contrary to the view of our dissenting colleague, we find that the People sufficiently established a connection between Anderson’s description and subsequent police conduct. Anderson’s general description of the perpetrator, as distinct from a direct identification of the defendant, led to successive police investigatory conduct such as interviewing other witnesses, including a witness who identified the defendant at trial, and procuring the surveillance video of the defendant … . Thus, the Supreme Court did not err in admitting Anderson’s description of the perpetrator for a limited nonhearsay purpose … . People v Speaks, 2015 NY Slip Op 00396, 2nd Dept 1-14-15

 

, ,

Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment

The Second Department applied a “vicarious consent” theory to reject the defendant’s argument that the father’s recording of the defendant berating and threatening the father’s child violated the eavesdropping statutes, Penal Law 250.05 and CPLR 4506. Father had called mother’s cell phone which mother answered without speaking. Father could hear the defendant speaking to the child over the phone and recorded the defendant’s words.  In addition to the “vicarious consent” discussion, he Second Department noted that a variance between the jury instructions and the charges in the indictment was harmless error because there was no possibility the guilty verdict was based upon a theory not in the indictment.  With respect to the “vicarious consent” to the recording, the court wrote:

While … Penal Law § 250.05 serves the strong public policy goal of protecting citizens from eavesdropping, we are not persuaded that the New York Legislature intended to subject parents to criminal penalties when, “out of concern for the bests interests of their minor child, they record that child’s conversations” … . Given the similarity between the federal wiretap statute and New York’s eavesdropping statute, and recognizing that the “vicarious consent” exemption is rooted on a parent’s need to act in the best interests of his or her child …, we deem it appropriate to adopt it as an exemption to Penal Law § 250.05.

Here, the People sufficiently demonstrated that the father had a “good faith, objectively reasonable basis to believe” that it was necessary for the welfare of the infant to record the conversation …, such that he could consent to the recording on the infant’s behalf … . Accordingly, the “vicarious consent” exemption applies, and admission of the subject recording was not barred by CPLR 4506. People v Badalamenti, 2015 NY Slip Op 00384, 2nd Dept 1-14-15

 

,

Evidence Insufficient to Support Neglect Finding, Criteria Explained/Repetition of Child’s Out-of-Court Statement Does Not Corroborate It

In reversing Family Court’s finding of neglect, the Third Department explained the analytical criteria and noted that a child’s out-of-court statement about his alleged consumption of alcohol was not corroborated by the child’s repetition of the statement:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … . “In order for danger to be imminent, it must be near or impending, not merely possible” … , and regarding degree of care “the statutory test is minimum degree of care — not maximum, not best, not ideal” … .

…[W]e note that one factual determination made by Family Court as supporting its finding of neglect was that respondent allegedly pressured [the child] to take a sip of her eggnog and brandy beverage at the party. The child did not testify, but the court found that his out-of-court statement was sufficiently corroborated because he had made such a statement to two different adults, although he had both denied and affirmed the allegation to one of the adults. While the corroboration requirement is low …, “[i]t is well settled that ‘repetition of an accusation by a child does not corroborate [that] child’s prior account'” … . Here, the out-of-court repetition of the statement did not provide sufficient corroboration and the statement should not have been considered as part of the neglect determination. Matter of Cadence GG…, 2015 NY Slip OP 00261, 3rd Dept 1-8-15

 

,

Evidence Did Not Support Imposition of Supervised Visitation Re: Mother’s Older Children—Evidence Included Family Court’s Taking Judicial Notice of Neglect Findings Re: Mother’s Younger Children

The Third Department, in a full-fledged opinion by Justice Egan, determined Family Court’s imposition of supervised visitation between mother and her two older children was not supported by the evidence—evidence which included Family Court’s taking judicial notice of the neglect proceedings involving mother’s younger children:

As for the grounds upon which Family Court elected to impose supervised visitation, although Family Court indeed was entitled to take judicial notice of the three neglect proceedings brought against the mother with respect to [the older children’s] maternal half siblings, two of the three proceedings predated the 2011 custody order wherein Family Court — following a hearing — granted the mother (unsupervised) visitation with [the older children]. Additionally, nothing in the record suggests that derivative findings of neglect were sought with respect to [the older children] in any of the neglect proceedings brought against the mother. To the extent that Family Court further relied upon the mother’s allegedly unaddressed mental health and anger management issues, as well as her purported lack of stable housing, these conclusory and unsubstantiated hearsay statements — taken verbatim from the permanency hearing report prepared by one of petitioner’s caseworkers — are not, to our analysis, the type of evidence that may be invoked to significantly curtail the mother’s preexisting visitation rights with [the older children]. Finally, the sole witness to testify at the combined hearing was the mother, who detailed her visitation history with [the older children], revealed that she regularly exercised her visitation rights and indicated that such visits generally went well. Although the mother acknowledged that she and her teenage children did not always see eye to eye, the record as a whole fails to establish that affording the mother unsupervised visitation with [the older children] — who were 16 years old and 15 years old, respectively, at the time of the hearing — “would be inimical to the child[ren]’s welfare” … . Matter of Damian D…, 2015 NY Slip Op 00263, 3rd Dept 1-8-15

 

,

Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examinated about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

The People sought the court’s permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant’s physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant’s credibility. Despite defendant’s objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant’s previous assault was “relevant” to “show that [defendant] can be physically aggressive” and, additionally, that such proof would speak to defendant’s anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

Based upon County Court’s authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant’s prior assault bore no relation to defendant’s credibility, but rather served solely to illustrate defendant’s propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries … . Accordingly, as defendant’s guilt was not overwhelmingly established by the proof presented at trial and we “cannot say that there is no reasonable possibility that the error might have contributed to defendant’s conviction,” the judgment must be reversed and the matter remitted for a new trial … . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

, ,

Constructive Trust Causes of Action Should Not Have Been Dismissed on the Merits, Criteria Explained (Some Constructive Trust Causes of Action Were Properly Dismissed as Time-Barred, However)/Procedure Re: Motion to Dismiss for Failure to State a Cause of Action Described/Application of Statute of Limitations to Constructive Trusts Explained/”Dead Man’s” Statute Not Applicable to Certain Evidence, at Least at this Stage of the Proceedings

The Fourth Department determined causes of action alleging the existence of constructive trusts on behalf of petitioners re: real property and stock owned by decedent should not have been dismissed on the merits.  (However, in a second related appeal addressed in the same decision, the Fourth Department determined the real-property constructive trust actions were time-barred). Re: the company stock, respondent, the executor, alleged he was the sole owner but could not support the allegation with documentary evidence. Petitioners alleged the stock should be distributed as one of the assets of decedent’s estate.  The Fourth Department held that the petitioners had stated a valid constructive-trust cause of action. The court discussed in some depth the consideration of evidence submitted re: a motion to dismiss pursuant to CPLR 3211(a)(7), the nature of a constructive trust, the inapplicability of the “dead-man’s” statute (CPLR 4519) to certain evidence, and the application of the six-year statute of limitations to constructive trusts.  With respect to the nature of constructive trusts, the court wrote:

We agree with petitioners that the petition sufficiently states a cause of action for a constructive trust with respect to the NGR property, the Manitou Road property and NYSFC stock. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction . . . We accept the facts as alleged in the [petition] as true, accord [the petitioners] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . In assessing a motion under CPLR 3211 (a) (7), . . . a court may freely consider affidavits submitted by the [petitioner] to remedy any defects in the [petition] . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” … .

“[I]t is well settled that [a] constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest . . . In order to invoke the court’s equity powers, [a petitioner] must show a confidential or fiduciary relationship, a promise, a transfer in reliance thereon, a breach of the promise, and [the respondent’s] unjust enrichment . . . Inasmuch as a constructive trust is an equitable remedy, however, courts do not rigidly apply the elements but use them as flexible guidelines . . . In this flexible spirit, the promise need not be express, but may be implied based on the circumstances of the relationship and the nature of the transaction” … .

The facts as alleged in the petition and set forth in the corresponding affidavits establish the existence of a confidential and fiduciary relationship between respondent and decedents. The facts with respect to the NGR and Manitou Road properties establish that respondent promised to pay decedents for the NGR property and to reconvey the Manitou Road property to decedents after it was subdivided by respondent. The petition further alleges that the properties were transferred to respondent as a result of those promises, and that respondent breached those promises and was thereby unjustly enriched.

With respect to the NYSFC stock, the petition and corresponding affidavits allege that Anthony believed, until the day that he died, that he still owned the company and that respondent had made promises to “allow all of [decedents’] children to share in NYSFC.” While the allegations of an express promise are lacking, “[e]ven without an express promise, . . . courts of equity have imposed a constructive trust upon property transferred in reliance upon a confidential relationship. In such a situation, a promise may be implied or inferred from the very transaction itself. As Judge Cardozo so eloquently observed: Though a promise in words was lacking, the whole transaction, it might be found, was “instinct with an obligation” imperfectly expressed’ ” (Sharp, 40 NY2d at 122). Based on the circumstances of the relationship between respondent and decedents and the nature of their multiple transactions, we conclude that there are sufficient facts from which we can conclude that there was an implied promise made by respondent to decedents; that the transfer of stock, if indeed there was a transfer, was made in reliance upon that promise; and that the promise was thereafter broken, resulting in an unjust enrichment to respondent. Matter of Thomas, 2015 NY Slip Op 00017, 4th Dept 1-2-15

 

,

(Harmless) Error to Admit Voice Identification Testimony—The People Did Not Provide Notice of the Testimony and the Identification Was Not Merely Confirmatory

The Fourth Department noted that voice identification testimony should not have been allowed because the people did not provide notice of it and it was not merely confirmatory.  The error was deemed harmless however:

We agree with defendant that the court erred in allowing one of the victims to offer voice identification testimony at trial. Prior to trial, the prosecutor had the victim listen to recordings of telephone calls allegedly made by defendant from jail, and the victim identified the voice of the person making the calls as belonging to defendant. The victim offered similar testimony at trial over defendant’s objection. Because the People failed to provide defendant with notice of the pretrial voice identification procedure as required by CPL 710.30 (1) …, the voice identification testimony was admissible at trial only if the identification was merely confirmatory as a matter of law … . Contrary to the People’s contention, the victim’s identification of defendant’s voice was not merely confirmatory inasmuch as the victim acknowledged that, although he had heard defendant speak a number of times in the neighborhood, he and defendant had never actually spoken to each other. We thus conclude that the People did not establish as a matter of law that the victim was so familiar with defendant’s voice that “the identification at issue could not be the product of undue suggestiveness” … . People v Ramos, 2015 NY Slip OOp 00049, 4th Dept 1-2-15

 

, ,

Failure to Make a Motion to Suppress Constituted Ineffective Assistance

The Fourth Department determined defendant was denied his right to effective assistance of counsel because counsel failed to move to suppress drugs seized during a traffic stop and the motion was likely to succeed.  The police questioning defendant whether he had anything illegal on him was not prompted by a reasonable suspicion of criminal activity:

In a supporting deposition, a police officer stated that he stopped defendant’s vehicle after observing defective brake lights, in violation of Vehicle and Traffic Law § 375 (40). He observed that defendant was nervous, and defendant gave responses to questions concerning where he was coming from and where he was going that did not make sense considering the direction in which he was traveling. The officer ordered defendant out of the vehicle and asked him “if he had anything illegal on him,” and defendant responded that he had “coke” in his pocket. The officer then searched defendant’s pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress would likely be successful, and that defense counsel had no strategic or other legitimate explanation for not moving to suppress the evidence … . The officer’s question whether defendant had anything illegal on him constituted a level two common-law inquiry, which required a founded suspicion that criminal activity was afoot … . Defendant’s nervousness and discrepancies in describing where he was coming from and going are not enough to give rise to a reasonable suspicion that criminal activity is afoot … . We further conclude that defendant’s contention survives his guilty plea inasmuch as defense counsel’s error infected the plea bargaining process … . People v Dealmeida, 2015 NY Slip Op 00169, 4th Dept 1-2-15

 

, ,

Defendant Invoked His Right to Counsel By Asking a Police Officer to Retrieve Defendant’s Lawyer’s Phone Number from Defendant’s Wallet—Subsequent Statements Should Have Been Suppressed/Defense Counsel’s Failure to Move to Suppress Weapon Seized from Defendant’s Person Deprived Defendant of Effective Assistance

The Fourth Department determined statements made after defendant invoked his right to counsel should have been suppressed. Defendant, after he was read the Miranda rights, asked a police officer to retrieve the defendant’s lawyer’s phone number from the defendant’s wallet.  The court further found defendant was not afforded effective assistance of counsel due to defense counsel’s failure to move to suppress the weapon seized from defendant’s person:

“Whether a particular request [for counsel] is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor [and] manner of expression[,] and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839). Here, the testimony at the suppression hearing established that, before defendant was informed of his Miranda rights at the police station, defendant asked a police officer to retrieve the telephone number of defendant’s attorney from defendant’s wallet. The hearing testimony further established that an investigator acknowledged defendant’s request but asked defendant to continue speaking with the police. That testimony was confirmed by a videotaped interview submitted at the hearing as an exhibit. ” [V]iewed in context of the totality of circumstances, particularly with respect to events following [defendant’s request for his attorney’s phone number]’ ” … ,we conclude that defendant unequivocally invoked his right to counsel and that his statements should have been suppressed  … .

We agree with defendant … that he was denied effective assistance of counsel based on defense counsel’s errors with respect to suppression … . We note that defense counsel moved to suppress evidence seized from defendant’s residence although there was no indication that any evidence was seized therefrom but failed to move to suppress the gun found on defendant’s person. The record establishes that defendant was arrested after a police officer observed defendant and three other individuals standing “approximately 8-10 houses away” from the location of reported gunfire. According to a police report, “[f]or officer safety purposes, [the officer] ordered [defendant and the other three individuals] to the ground and they were taken into custody,” and a police officer found defendant in possession of a loaded weapon. There is no indication in the record on appeal that the police had a founded suspicion that defendant and his companions were the source of the gunfire or were involved in any other criminal activity … . On the record before us, we conclude that there are no strategic reasons for moving to suppress evidence that did not exist while failing to move to suppress a gun that was seized from defendant’s person and that was the factual basis for the charges in the indictment … . We further conclude that defense counsel’s errors prejudiced defendant and deprived him of the right to effective assistance of counsel … . People v Barber, 2015 NY Slip Op 00058, 4th Dept 1-2-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy