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Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)

The Second department noted that the prosecutor’s comment implying that communicating with an attorney manifests a consciousness of guilt was error:

In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People’s theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: “[I]f you didn’t do anything and you don’t know that detectives are looking for you in respect to a shooting, why did you get an attorney?” The defendant correctly contends that this comment was improper, since the defendant’s retention of an attorney was not probative of her consciousness of guilt … . Nevertheless, contrary to the defendant’s contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal … . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15

 

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No Foundation Provided for Use of a Notarized Statement for Impeachment (As a Prior Inconsistent Statement)

The Second Department determined the trial court had properly prohibited the defense from cross-examining a complaining witness about a notarized statement the witness denied signing.  The court explained the foundation-requirements for admitting a prior inconsistent statement:

The trial court properly precluded the defendant from cross-examining one of the complaining witnesses regarding a notarized statement which she had denied signing, and for which the notary could not be located. “[T]here must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his [or her] testimony at trial and his [or her] previous statements, he [or she] must first be questioned as to the time, place and substance of the prior statement” … . “If the witness does not admit that he [or she] signed the statement[ ], the genuineness of the signature can be proved by any one or in any legal way. Such proof enables the impeaching party to properly offer the paper in evidence as a part of his [or her] case or, with the permission of the court, at any other stage of the trial” … . Where, as here, the party seeking to admit the writing into evidence has not proven the genuineness of the signature, “the writing cannot be read to the jury, or, provided it can be produced, used as a basis for a cross-examination as to its contents until it is in evidence'” … . People v Haywood, 2015 NY Slip Op 00555, 2nd Dept 1-21-15

 

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Criteria for Interpreting Ambiguous Property Descriptions in Old Deeds Explained and Applied

The Third Department explained the analytical criteria for determining the location of boundary lines using old deeds which exhibit some ambiguity (thus allowing reference to extrinsic evidence).  The court explained that a hand-written, signed deed was preferred over a subsequent, unsigned type-written description of the property, and that the amount of acreage is the least reliable type of property description:

We agree with Supreme Court that as between the handwritten and typed versions of the April 1885 deed, the handwritten deed is the best evidence of the grantors’ intent, as it is the signed original instrument by which the disputed property was conveyed, while the typed version is an unsigned copy created decades later by an unknown transcriber (see Jerome Prince, Richardson on Evidence §§ 10-101, 10-102 [Farrell 11th ed 1995]). We further agree with the court that the disputed mark following the phrase “more or less” in the handwritten deed appears to be a comma; although it is oddly located on the line below the phrase “more or less” and outside the document’s left margin, it has the same shape as other commas in the deed, including a mark just before the phrase “more or less,” which the parties agree is a comma and which is represented by a comma in the typed version. Nevertheless, the questionable nature of the disputed mark creates an ambiguity that may be clarified by considering extrinsic evidence of the grantors’ intent … . * * *

Where … discrepancies exist in property descriptions, “the rules of construction require that resort be had first to natural objects, second to artificial objects, third to adjacent boundaries, fourth to courses and distances and last to quantity” … . According to these rules, a public highway or other artificial monument takes precedence over the amount of acreage specified in a deed, as “quantity is the least reliable of all descriptive particulars” … . Shattuck v Laing, 2015 NY Slip Op 00413, 3rd Dept 1-15-15

 

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Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

Police Properly Entered the Apartment (Warrantless Entry) With the Consent of a “Lease Enforcement Officer” Who Believed the Apartment Was Occupied by “Squatters”

The Third Department determined the police properly made a warrantless entry of the apartment where defendant [Anderson] was staying based upon the consent of a “lease enforcement officer” who believed the apartment was occupied by “squatters.”  The motion to suppress the weapon found near the defendant was, therefore, properly denied:

…John Downey, a lease enforcement officer, informed a police detective that he believed that Anderson’s apartment was vacant and that tenants frequently abandoned their units in the apartment building without providing notice. Downey further explained that he was authorized to enter apartments in order to ensure that they are secure and not occupied by squatters. Downey averred that he provided law enforcement officers with a key to the apartment because he was concerned that someone other than Anderson may have been staying there. When law enforcement arrived at the apartment and knocked on the door, there was no response and no noise was detected from inside the residence. Although it became obvious to the officers, after having entered the apartment, that it was not vacant, inasmuch as an objective view of the evidence adequately demonstrated that the police reasonably relied in good faith upon Downey’s apparent authority to allow entry into the apartment, County Court properly found that the warrantless entry –and resulting seizure of the gun that was in plain view–was not illegal… . People v Edwards, 2015 NY Slip Op 3rd Dept 1-15-15

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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