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Admission Into Evidence of Nontestifying Codefendant’s Grand Jury Testimony Violated Defendant’s Sixth Amendment Right of Confrontation

The First Department reversed defendant’s conviction, finding that the admission into evidence of the codefendant’s grand jury testimony violated the rule announced in Bruton v US, 391 US 123:

Under Bruton v United States, “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” … . Since the rule only applies where the codefendant’s statement was “incriminating on its face, and [not where it] became so only when linked with evidence introduced later at trial” …, the question before us is whether the codefendant’s grand jury testimony was facially incriminating as to defendant, rather than incriminating only when linked to other evidence. * * *

Although the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was “facially incriminating” as to defendant within the meaning of Bruton.

The codefendant’s narrative placed defendant with the codefendant throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct. Among other things, the statement recounted that, after defendant’s return to the codefendant’s car following an absence to “get food,” the alleged robbery victim (an undercover officer) appeared at the car window, asked where the “stuff” was, and dropped prerecorded buy money (the property allegedly stolen in the charged robbery) into the car. This narrative suffices to create an inference that defendant, while outside the codefendant’s vehicle, had purported to set up a deal for a sale of contraband that was to culminate in the vehicle, but did not fulfill the deal once he entered the vehicle.  People v Johnson, 2014 NY Slip Op 08765, 1st Dept 12-16-14

 

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Deeply Divided Court Reverses Plaintiff’s Malicious Prosecution-False Arrest Verdict and Orders a New Trial/Error Not to Allow Unredacted Autopsy Report Into Evidence/The Nature of the Evidence Necessary to Demonstrate Probable Cause to Arrest Was the Core of the Disagreement Among the Justices

The First Department, over a two-justice dissent, reversed a plaintiff’s verdict and ordered a new trial.  Plaintiff’s baby died a few weeks after birth.  The medical examiner concluded that the baby died of malnutrition that was not due to a detectable defect in her digestive system.  The plaintiff was charged with the baby’s death, but the charges were dropped about a month later. Plaintiff sued the city, alleging malicious prosecution and false arrest.  Both causes of action require a finding that the police did not have probable cause to arrest.  The probable cause determination was left to the jury (which concluded the police did not have probable cause).  The majority decided it was reversible error not to admit the full autopsy report, including the redacted conclusion that the “manner of death” had been “homicide (parental neglect).”  The dissent vehemently argued that the arresting officer had enough information, both from the autopsy report and his investigation, to conclude that the baby had been adequately fed and that, therefore, the jury’s finding the officer did not have probable cause to arrest was supported by the evidence. The concurring decision vehemently disagreed with the dissent, arguing that the arresting officer had probable cause as a matter of law:

From the concurrence:

“Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent person in believing that the offense has been committed” … . “The evidence necessary to establish probable cause to justify an arrest need not be sufficient to warrant a conviction” … . And, as previously discussed, conflicting evidence as to guilt or innocence, and discrepancies in the case being built against the arrested person, while relevant to the prosecution’s ability to prove guilt beyond a reasonable doubt at trial, are not relevant to the determination of whether there was probable cause for an arrest … . Further, “when the facts and circumstances are undisputed, when only one inference [concerning probable cause] can reasonably be drawn therefrom and when there is no problem as to credibility . . . , the issue as to whether they amount to probable cause is a question of law” … . Since there is no dispute about either (1) plaintiff’s status as the infant’s sole custodian, (2) the contents of the autopsy report, or (3) the detective’s reliance upon the autopsy report in making the arrest and initiating the subsequently aborted prosecution, probable cause for plaintiff’s arrest and prosecution existed as a matter of law. It follows that this case should not have been submitted to the jury and that the City’s motion for judgment notwithstanding the verdict should have been granted. * * *

From the dissent:

The evidence demonstrated that notwithstanding the conclusion in the autopsy report that the child died of malnutrition, the detective testified that two medical professionals who viewed the child’s body saw no apparent signs of neglect or abuse, found food in the child’s stomach, and concluded that she appeared to be well fed. Thus, there was no indication that plaintiff had either intentionally, recklessly or negligently starved the infant. The jury reasonably could have found that, at the time of arrest, there was no basis for a prudent person to believe that an offense had been committed. That is, that the mother did not act recklessly or negligently in feeding the child and/or not realizing that the child was malnourished, or did not in fact commit any offense whatsoever. * * * … [T]he contents of the report along with the other evidence did not provide probable cause to believe that a crime had been committed. Moreover, under the circumstances of this case, it cannot be said that “it was reasonable, as a matter of law,” for the detective to discredit plaintiff’s account. Cheeks v City of New York, 2014 NY Slip Op 08764, 1st Dept 12-16-14

 

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Defendant’s “Agency” Defense to a Drug Sale Addressed Under a “Weight of the Evidence” Review (Defense Was Disproved Beyond a Reasonable Doubt)

The Third Department noted that, although the defendant did not preserve his claim his conviction was not supported by legally sufficient evidence, an appellate court will review whether a conviction is supported by proof beyond a reasonable doubt under a “weight of the evidence” review.  The Third Department then went on to find the defendant’s agency defense had been disproved by the People beyond a reasonable doubt.  The court explained the agency defense:

To the extent that defendant contends that the underlying conviction is not supported by legally sufficient evidence, we note that defendant’s generalized motion to dismiss at the close of the People’s case was insufficient to preserve his present claim, i.e., that the People failed to disprove his agency defense beyond a reasonable doubt … . Additionally, defendant, who testified upon his own behalf, failed to renew this motion at the close of all proof; accordingly, defendant’s challenge to the legal sufficiency of the evidence is not preserved for our review … . “That said, our weight of the evidence [analysis] necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial” … .

Insofar as is relevant here, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he or she knowingly and unlawfully sells . . . a narcotic drug” (Penal Law § 220.39 [1]). Defendant does not dispute that he sold a narcotic drug, i.e., cocaine, to the undercover deputy on the dates in question, but contends that he acted solely as the deputy’s agent in this regard and, at best, is guilty of criminal possession of a controlled substance … . Under the agency doctrine, a person who procures drugs solely as the agent of a buyer is not guilty of either criminal sale or of possession with the intent to sell … . “[W]hether the defendant was a seller, or merely a purchaser doing a favor for a friend, is generally a factual question for the [factfinder] to resolve on the circumstances of the particular case” … . Such a determination, in turn, may hinge upon a number of factors, including “the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction” … . Notably, profit does not necessarily equate with pecuniary gain; indeed, this Court has recognized that a defendant may stand to benefit from the underlying sale when such transaction was undertaken in the hopes of receiving either assistance in getting a job … in exchange for obtaining the requested drugs. People v Robinson, 2014 NY Slip Op 08672, 3rd Dept 12-11-14

 

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Because the Presence of THC Can Be Detected Long After Marijuana Use, the People Were Not Able to Prove Defendant Used Marijuana During a One-Week Furlough

The Third Department determined that the People did not prove by a preponderance of the evidence that the defendant used marijuana when he was on furlough, thereby justifying an enhanced sentence.  THC can be detected long after marijuana-use.  The proof therefore did not establish the defendant used it during a one-week furlough:

…[W]e find merit in defendant’s argument, preserved by objection at sentencing …, that the People failed to establish at the enhancement hearing that he violated a condition of his furlough, as the proof did not demonstrate when he used marihuana, i.e., that it occurred during, rather than prior to, his furlough. When the court granted defendant a one-week furlough, it warned him that it would enhance his prison sentence to 4½ years if he were “charged with any criminal conduct” or “arrested for any reason” and that, “[w]hile you are out, if you engage in the use of any illegal drugs or alcohol and I find out about it” (emphasis added), the enhanced sentence would be imposed. At the hearing, while the investigator testified that defendant’s test was positive for THC, he was not able to estimate the date when defendant used marihuana, and conceded that it could have been months earlier; he also recounted that defendant stated, after being told of the positive test result, that “he had been smoking in the jail prior to his furlough” (emphasis added). Moreover, the reference guide for the test, which was admitted into evidence at the hearing, indicates that “[m]any factors influence the length of time required for drugs to be metabolized and excreted in the urine” and that the “general time” established for cannabinoids with “chronic use” is “less than 30 days typical.”… Defendant admitted to previously being a daily, heavy user of marihuana, and testified that he did not use marihuana during his furlough.

Given the foregoing, we find that the People did not prove by a preponderance of the evidence … and the court did not have a “legitimate basis” for concluding — that defendant used marihuana during his furlough… . People v Criscitello, 2014 NY Slip OP 08678, 3rd Dept 12-11-14

 

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Plaintiff’s Expert’s Failure to Address Indications in Plaintiff’s Evidence that the Physical Deficits Were the Result of a Preexisitng Degenerative Condition (Not the Accident) Required the Grant of Summary Judgment to the Defendants—Plaintiff Failed to Raise a Question of Fact Re: Suffering a “Serious Injury” [Insurance Law 5102 (d)] as a Result of the Accident

The First Department determined, over a two-justice dissent, that summary judgment was properly granted to the defendants because plaintiff was unable to raise a question of fact whether plaintiff’s injury was a “serious injury” within the meaning of Insurance Law 5102 (d).  Plaintiff’s evidence indicated plaintiff’s physical deficits may be the result of a preexisting degenerative condition, rather than the accident.  However, plaintiff’s expert did not address the preexisting condition in response to the motion for summary judgment:

Plaintiff submitted his … orthopedic surgeon’s opinion that he suffered a knee injury “secondary” to the car accident. However, the surgeon’s opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants’ medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiff’s own medical records, which the same surgeon had acknowledged in his … note.

Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No-Fault Law where, as here, the plaintiff’s own experts fail to address indications from the plaintiff’s own medical records, or in the plaintiff’s own expert evidence, that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident (see Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, his expert failed to address “detailed findings of preexisting degenerative conditions by defendants’ experts, which were acknowledged in the reports of plaintiff’s own radiologists”]; Farmer v Ventkate, Inc., 117 AD3d 562, 562 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “(h)is orthopedic surgeon concurred [*2]that the X rays showed advanced degenerative changes”]; Mena v White City Car & Limo Inc., 117 AD3d 441, 441 [1st Dept 2014] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologists noted degenerative conditions in their MRI reports, but failed to explain why this was not the cause of plaintiff’s injuries”]; Paduani v Rodriguez, 101 AD3d 470, 470, 471 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, defendants submitted “a radiograph report of plaintiff’s radiologist finding severe degenerative changes” and, “(w)hile (plaintiff’s) expert acknowledged in his own report MRI findings of degenerative changes in the lumbar spine, he did not address or contest such findings, and the MRI report of (plaintiff’s) radiologist found herniations but did not address causation”]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012] [plaintiff failed to raise issue of fact where, inter alia, “plaintiff’s own radiologist . . . confirmed degenerative narrowing at the L5-S1 intervertebral disc space’ without further comment”]). Rivera v Fernandez & Ulloa Auto Group, 2014 NY Slip Op 08735, 1st Dept 12-11-14

 

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Lineup Was Unduly Suggestive

The Second Department determined the pretrial lineup identification procedure was unduly suggestive and sent the case back for an inquiry into whether the complainant had an independent source for the in-court identification:

The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant's clothing that the complainant gave to the police. Thus, at the lineup, the defendant's red shirt improperly drew attention to his person … . Since the hearing court's erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant's in-court identification, we remit the matter to the Supreme Court, Richmond County, to provide them with an opportunity to do so … . Pending a hearing and determination on that issue, the appeal is held in abeyance. People v Pena, 2014 NY Slip Op 08667, 2nd Dept 12-10-14 

 

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Statements in Hospital Records Attributable to Plaintiff Not Admissible Because Not Germane to Treatment or Diagnosis/Plaintiff’s Counsel Should Not Have Been Allowed to Comment on Defense’s Failure to Call the Nurse Who Was Going to Testify About the Statements—New Trial Ordered

The Second Department determined plaintiff's alleged statements about the trip and fall which were referenced in hospital records were not admissible because the statements were not germane to diagnosis and treatment and were not prior inconsistent statements.  The defense was therefore prohibited from calling the triage nurse who heard the statements.  Plaintiff's counsel, however, was erroneously allowed to comment on the absence of the nurse from the trial (the defense had indicated in its opening that she would testify about discrepancies in the plaintiff's account of the accident).  A new trial was therefore ordered:

Supreme Court providently exercised its discretion in precluding the admission into evidence of the entries in the injured plaintiff's hospital records. The evidence, which purportedly constituted statements by the injured plaintiff indicating that the accident did not occur on the defendants' premises, were not germane to the injured plaintiff's diagnosis and treatment … . Further, those statements were either equivocal as to how the accident occurred, or consistent with the injured plaintiff's testimony at trial … . Accordingly, they were not admissible as prior inconsistent statements to impeach her credibility. Since those entries were not admissible, the testimony of the triage nurse with respect to those entries was not admissible.

However, permitting the plaintiffs' counsel to comment on the failure to call the triage nurse as a witness was error, since the defendants in fact produced the witness and were precluded from calling her to testify by the trial court. Further, the comments by the plaintiffs' counsel in summation were not supported by the evidence, and were inflammatory and unduly prejudicial, depriving the defendants of a fair trial … . Nelson v Bogopa Serv Corp, 2014 NY Slip Op 08612, 2nd Dept 12-10-14

 

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“Expert” Affidavit Did Not Address the Affiant’s Qualifications for Rendering an Opinion Re: the Safety of a Curb and Sidewalk—Affidavit Should Not Have Been Relied Upon by the Motion Court

In finding that defendant's motion for summary judgment in a slip and fall case should have been denied, the Third Department noted that the expert affidavit should not have been relied upon by the motion court because it failed to include sufficient information to qualify the affiant as an expert:

Defendant … submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Defendant's proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant's proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information … .

Even assuming from the “P.E.” designation that this person is licensed as a professional engineer somewhere, merely stating that a person is a licensed engineer is insufficient to qualify that person as an expert in a particular case, absent any proof that he or she had any specialized training, personal knowledge or practical experience related to the subject at issue … . Flanger v 2461 Elm Realty Corp, 2014 NY Slip Op 08532, 3rd Dept 12-4-14

 

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Criteria for an “Open and Obvious” Defense and an “Intervening or Superseding Cause” Defense Described—Effect of Plaintiff’s Intoxication and Lack of Memory Re: the Accident Discussed

The First Department determined a lawsuit stemming from plaintiff's fall from a roof into an unprotected airshaft could go forward.  The roof was accessed through an apartment window.  The Court of Appeals had reversed the First Department's dismissal of the action (on the ground the accident was not foreseeable).  On remand, the First Department addressed the defendant's arguments that the condition was open and obvious, that plaintiff's climbing onto the roof while intoxicated was the intervening, superseding or sole proximate cause of the accident, and the effect of the facts that no one witnessed the accident and plaintiff has no memory of it:

To establish an open and obvious condition, a defendant must prove that the hazard “could not reasonably be overlooked by anyone in the area whose eyes were open” … . However, “even visible hazards do not necessarily qualify as open and obvious” because the “nature or location of some hazards, while they are technically visible, make them likely to be overlooked” … . The burden is on the defendant to demonstrate, as a matter of law, that the condition that caused the plaintiff to sustain injury was readily observable by the plaintiff employing the reasonable use of his senses … . Furthermore, “whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Viewing the evidence in the light most favorable to plaintiff, we find that a triable issue of fact exists whether the unguarded opening from the setback roof to the air shaft was an open and obvious condition that was not inherently dangerous. * * *

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . “[L]iability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence” … . To establish that a plaintiff's conduct was the sole proximate cause of his or her injuries, a defendant must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct, i.e. that the plaintiff recognized the danger and chose to disregard it … .

On the record before us, defendants have not established as a matter of law that plaintiff's act of walking out onto the setback roof was a superseding or intervening cause that severed the causal connection between his injuries and any negligence on their part. Plaintiff had never been to the building before the night in question, and defendants did not establish that plaintiff either knew, or should have known, that his conduct was dangerous, notwithstanding that he apparently fell during his second trip onto the setback roof. The fact that plaintiff was legally intoxicated does not alone render his actions a superseding cause … .

Defendants argue that plaintiff cannot make out a case of proximate cause because the accident was unwitnessed, and plaintiff does not recall what happened, and thus there can be no showing that a parapet or railing would have prevented the accident. However, plaintiff need not exclude every possible cause of his fall other than the premises defects alleged … . Regardless of whether plaintiff slipped, tripped, or fell, an issue of fact exists whether his fall down into the air shaft was, at least in part, attributable to the fact that the setback roof was open to the unguarded shaft. Powers v 31 E 31 LLC, 2014 NY Slip Op 08382, 1st Dept 12-2-14

 

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Proof Requirements for Constructive Possession of Contraband Explained

The Third Department explained the criteria for constructive possession.  The fact that others might have access to the contraband does not disprove constructive possession, contraband can be possessed jointly with others:

“Where, as here, the People proceed upon the theory of constructive possession, they bear the burden of establishing that defendant exercised dominion and control over the contraband or the area where the contraband was found”… . Such possession may be shown through direct or circumstantial evidence, and does not require proof that no one else had access to the contraband or the premises … . While mere presence in the same location where contraband is found does not prove constructive possession …, the evidence here established that defendant–who was wearing only boxer shorts when he was found and identified one of the bedrooms where contraband was found as the one where he kept his clothes and belongings–was not merely present in the residence by happenstance at the time of the search, but lived there. When found, he was lying in close proximity to the laundry basket that contained the disassembled weapon, as though he had just placed it there. Further, shortly before the search, he had been seen in physical possession of a weapon by witnesses who identified him as the individual who fired a black handgun in the direction of a vehicle, and, later on the day of the shooting, another witness saw him holding a black semiautomatic pistol. Accordingly, the evidence went beyond defendant’s mere presence in the residence at the time of the search and established “a particular set of circumstances from which a jury could infer possession” of the contraband … . The fact that some of the contraband was found in defendant’s brother’s bedroom and other parts of the house to which family members also had access does not preclude a finding of constructive possession, as such possession may be joint, and all of the items were “readily accessible and available” to defendant… . People v McGough, 2014 NY Slip Op 08269, 3rd Dept 11-26-14

 

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