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References to Defendant’s Prior Bad Acts in a Recorded Phone Call Were Not Inextricably Intertwined with Admissible Statements and Should Have Been Redacted—Conviction Reversed

The Fourth Department determined the inadmissible statements about defendant’s prior bad acts were not inextricably intertwined with the admissible portions of a recorded phone call.  The failure to redact the references to prior bad acts required reversal:

County Court committed reversible error by admitting evidence of prior bad acts of sexual abuse against the victim’s mother and another woman. With the assistance of the police, the victim’s mother recorded a telephone conversation between herself and defendant, and she made repeated references to the prior bad acts throughout the conversation in her attempt to have defendant admit to sexually abusing the victim. We conclude that the court erred in determining that the references to the prior bad acts were admissible because they were inextricably interwoven with the allegations against the victim. In the context of a recorded call, when references to prior bad acts in the conversation are “inextricably interwoven with the crime charged in the indictment,” the entire conversation “may be received in evidence . . . where . . . the value of the evidence clearly outweighs any possible prejudice” … . ” To be inextricably interwoven . . . the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence’ ” … . Here, we conclude that the disputed references were not explanatory of the rest of the conversation. The statements regarding defendant’s prior bad acts were numerous, but they could have been redacted from the transcript of the recorded call without making the statements regarding the victim incomprehensible … . In other words, the statements concerning the victim are “clearly understandable” by themselves and are “not dependent upon” the statements concerning defendant’s prior bad acts … . We further conclude that the prejudicial effect of those numerous references to the prior bad acts outweighed any probative value, and the references therefore should have been redacted … . People v Gibbs, 2015 NY Slip Op 02362, 4th Dept 3-20-15

 

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Criteria for Presentation of Exculpatory Evidence to the Grand Jury Explained (Not Met Here)

The Third Department explained the prosecutor’s obligations re: the presentation of exculpatory evidence to the grand jury. [The decision also includes good discussions the criteria re: (1) shackling defendant during pre-trial hearings, (2) the court’s discretion to deny defendant’s request to call a witness (the victim) at the Wade hearing, and (3) serious prosecutorial misconduct, which are worth reading, although reversible error was not found.]:

With respect to the issue of exculpatory evidence, “[t]he People generally enjoy wide discretion in presenting their case to the [g]rand [j]ury and are not obligated to search for evidence favorable to the defense or to present all evidence in their possession that is favorable to the accused even though such information undeniably would allow the [g]rand [j]ury to make a more informed determination. . . . [Nor] do the People have the same obligation of disclosure at the [g]rand [j]ury stage as they have at the trial stage” … . Here, the exculpatory evidence cited by defendant “bore principally upon the victim’s credibility and, as such, was more appropriately reserved for presentation to the petit jury than to the [g]rand [j]ury” … . People v Goldston, 2015 NY Slip Op 02146, 3rd Dept 3-19-15

 

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Violation of Confrontation Clause Was Harmless Error

The Second Department determined the admission of hearsay DNA evidence (a report made by an analyst who did not testify), although it violated the Confrontation Clause, was harmless error because the inadmissible evidence was cumulative:

The defendant correctly contends that his rights under the Confrontation Clause of the Sixth Amendment were violated when the Supreme Court admitted a nontestifying DNA analyst’s report linking the defendant to DNA evidence recovered at the crime scene … .

“Confrontation Clause violations are subject to a constitutional harmless error analysis” … . “Constitutional error requires reversal unless the error’s impact was harmless beyond a reasonable doubt'” … . “This determination is based on a review of the entire record”… ..

Here, in addition to the erroneously admitted report, the People presented evidence directly linking the defendant to the burglary. Specifically, the nontestifying analyst’s supervisor testified that she herself analyzed the raw data from the evidence collected at the crime scene and the DNA collected from the defendant and drew her own conclusions. Thus, the erroneously admitted report was cumulative, as the expert who did testify reached that same conclusion after comparing the same raw data relied upon by the nontestifying analyst. Since there was no reasonable possibility that the erroneously admitted report contributed to the defendant’s conviction, the error was harmless beyond a reasonable doubt … . People v Cartagena, 2015 NY Slip Op 02136, 2nd Dept 3-18-15

 

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Court Should Have Taken Judicial Notice of Father’s False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother’s Failure to Call a Witness without Informing Mother of Its Intent to Do So

The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father’s false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother’s failure to call a witness without giving mother the opportunity to explain the witness’ absence:

The Family Court improperly rejected the mother’s request that it take judicial notice of the determination in the parties’ prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court’s findings therein regarding the father, were relevant to the court’s assessment of the father’s credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding … .

Additionally, the Family Court erred in drawing a negative inference based on the mother’s failure to call the child’s maternal grandmother as a witness. ” A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'” … . The court sua sponte drew a negative inference based on the mother’s failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so … . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15

 

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Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case

In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants’ motion, only provided information about the store’s general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident … . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition … . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15

 

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Plaintiff Could Not Demonstrate Cause of Her Fall Without Resorting to Speculation

The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case because the plaintiff could not identify the case of her fall:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … .

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff’s deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation … . Mitgang v PJ Venture HG, LLC, 2015 NY Slip Op 02101, 2nd Dept 3-18-15

 

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Criteria for Strip and Cavity Search Met

The Third Department determined the circumstances justified a strip search and a visual cavity search of the defendant. The court explained the relevant criteria:

…[T]he principles governing strip searches and body cavity examinations are set forth in People v Hall (10 NY3d 303 [2008], cert denied 555 US 938 [2008]). Insofar as is relevant here, “a strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner. To advance to . . . a visual cavity inspection, the police must have a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee [has] secreted evidence inside a body cavity and the [ensuing] visual inspection must be conducted reasonably” … . Although the police cannot routinely subject all drug arrestees to visual cavity inspections, the police are permitted — in the context of formulating the particularized factual basis required for such inspections — “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”… . People v Cogdell, 2015 NY Slip Op 106031, 3rd Dept 3-12-15

 

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Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained

The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice).  The court explained the relevant analysis:

“Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction” … . “‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'” … . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded … and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion … . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15

 

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“Constructive Possession” Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit

The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:

Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised “dominion and control over the weapon or the area in which it was found” … . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee’s marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant’s hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward’s patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating that the handgun had been fired once.

… “[V]iewing the evidence in a neutral light and according deference to the jury’s credibility determinations,” we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence … . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15

 

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Presentation of Hearsay to Grand Jury Did Not Taint the Proceedings—Criteria Explained

The Third Department determined that the admission of hearsay before the grand jury (the audio of a videotape which could not be muted) did not constitute reversible error, mainly because the prosecution did not intentionally present inadmissible evidence:

We first address defendant’s argument that the grand jury’s exposure to inadmissible hearsay so tainted the proceedings that dismissal of the indictment is required. Dismissal of an indictment is an extreme remedy that is limited to “‘those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury'” … . Defendant’s challenge relates to a recording of the bar’s security camera footage that depicted the attack on the victim. Specifically, the victim’s son made a video recording of a monitor as it played the surveillance footage, during which recording he and another person can be heard making several comments regarding the severity of the attacks upon the victim. The People explained to Supreme Court that they were unable to mute the video as it was being played during grand jury proceedings, and that the prosecutor provided an instruction to disregard the audio component of the video recording. Thus, it is apparent that the People did not intentionally present inadmissible hearsay or otherwise engage in an “over-all pattern of bias and misconduct” … . Moreover, in light of the ample evidence supporting the assault in the second degree charge against defendant, we find no basis to determine that the hearsay evidence rendered the indictment defective … . People v Boddie, 2015 NY Slip Op 105524, 3rd Dept 3-12-15

 

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