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In a DWI Case, Operation Proved by Circumstantial Evidence

The Third Department determined circumstantial evidence the defendant had been driving while intoxicated was sufficient.  The defendant went to a witness' home seeking assistance after his car ended up in a ditch.  [Although not summarized here, the decision, which affirmed the conviction, also has in depth discussions of errors in juror selection (failure to address bias expressed by a juror re: a DWI case where peremptory challenges eventually exhausted), the criteria for juror disqualification when a juror is related to a witness but does not realize it until the witness testified, and related ineffective assistance claims.]:

A defendant need not be driving to operate a vehicle for purposes of the Vehicle and Traffic Law; it is enough if the evidence shows that he or she is behind the wheel with the engine running … . The testimony was that when defendant arrived on [a witness'] doorstep to request assistance with getting the car out of the ditch, he was alone and smelled of alcohol. In addition to the testimony of [witnesses] describing his efforts, defendant acknowledged that he was behind the wheel of the car, and that the car was running with the wheels spinning as he attempted to drive the car out of the ditch. These factors are sufficient to establish that defendant was operating a motor vehicle on a public highway … . People v Colburn, 2014 NY Slip Op 08875, 3rd Dept 12-18-14

 

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Although Plaintiff Could Not Identify the Cause of Her Fall, A Question of Fact Was Raised Re: the Cause by Circumstantial Evidence

The Second Department determined that, although the plaintiff was unable to identify the cause of her fall, she was able to raise a question of fact about the cause from circumstantial evidence:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury … .

Here, the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her accident without engaging in speculation … . However, in opposition, the plaintiff raised a triable issue of fact, inter alia, through circumstantial evidence, as to whether the cause of her fall was a cracked and/or unlevel condition on the defendants’ driveway … . Buglione v Spagnoletti, 2014 NY Slip Op 08801, 2nd Dept 12-17-14

 

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Out-of-Court Statement Leading to Discovery of the Weapon Did Not Violate Defendant’s Right of Confrontation Because There Was No “Direct Implication” the Statement Involved the Defendant’s Possession of the Weapon

The Second Department determined that the right of confrontation issue was preserved for appeal because, although not raised directly, the issue was specifically determined by Supreme Court.  The court further determined that the testimony which alluded to an out-of-court statement leading to the discovery of a blood-covered knife did not violate defendant’s right of confrontation:

Contrary to the People’s contention, the Confrontation Clause (see US Const, 6th amend) issue is preserved for appellate review. While the issue was not “plainly present[ed]” to the Supreme Court …, the court’s ruling on the defendant’s objection demonstrates that the court specifically considered and resolved this issue … .

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination” … . Here, however, Sergeant Tribble’s testimony and the subsequent testimony relating to the discovery of the weapon did not violate the Confrontation Clause, since there was no direct implication that the nontestifying witness told the police that the defendant possessed the knife, disposed of it, or tried to conceal it … . People v Richberg, 2014 NY Slip Op 08863, 2nd Dept 12-17-14

 

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Even Though Probable Cause for a DWI Arrest Existed, the Arresting Officer Testified He Was Not Going to Arrest the Defendant Until He Found a Switchblade Knife During a Pat-Down Search—Therefore the Search Could Not Be Justified As a Search Incident to Arrest and the Switchblade Should Have Been Suppressed

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that a switch-blade found in a pat-down search of the defendant after a vehicle stop should have been suppressed. The way the defendant was driving and the officer’s observations of defendant after the stop provided probable cause for a DWI arrest.  However, at the suppression hearing, the arresting officer (Merino) testified that he was not going to arrest the defendant prior to the pat-down search and only arrested him because the knife was found.  The Court of Appeals held that the search, therefore, could not be a “search incident to arrest” and could not be otherwise justified:

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search . . ., we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not … . People v Reid, 2014 NY Slip Op 08759, CtApp 12-16-14

 

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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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