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Record Did Not Demonstrate Defendant Understood His Miranda Rights—Statement Should Have Been Suppressed

The Second Department determined defendant’s statement should have been suppressed.  The People failed to demonstrate defendant understood his right to remain silent:

Contrary to the hearing court’s determination, the evidence adduced at the suppression hearing was insufficient to establish that the defendant’s statements to law enforcement officials were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436). Although the defendant’s refusal to sign the Miranda card did not, in itself, preclude the finding of a valid waiver …, the record was devoid of any indication that the defendant clearly understood his Miranda rights as read to him … . People v Barnes, 2014 NY Slip Op 06209, 2nd Dept 9-17-14

 

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Motion to Vacate Convictions Granted—People Failed to Provide “Brady” Material In Time for the Defense to Make Meaningful Use of It

The Second Department, pursuant to a CPL 440 motion, vacated the defendants’ convictions because of the People’s failure to turn over documents which would have aided the defense (a “Brady” violation).  Although the documents were provided at the time of jury selection, they were mixed in with a large volume of other documents which effectively deprived the defense of notice of their existence.  There was a “reasonable probability” the documents, had they been used at trial to impeach police witnesses, would have changed the outcome of the trial:

The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87…). Such evidence is to be produced regardless of whether a defendant requests the material … . The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt … . Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case … .

In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material … . As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different … . Here, the manner in which the prosecution turned over the documents, during the course of jury selection, deprived the defendants of a meaningful opportunity to employ that evidence during their cross-examination of the prosecution’s witnesses … . People v Wagstaffe, 2014 NY Slip Op 06217, 2nd Dept 9-17-14

 

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Abuse of Discretion to Grant Conditional Order of Preclusion and to Deny Late Motion to Amend Bill of Particulars

The Second Department reversed Supreme Court in a medical malpractice action, finding that the conditional granting of defendants’ motion to preclude the plaintiff from submitting evidence of neurological injuries and the denial of plaintiffs’ motion to amend the bill of particulars constituted abuse of discretion.  The Second Department determined plaintiffs did not “willfully and contumaciously fail to appear for a neuropsychological examination” by the defendants’ doctor and the amendment of the bill of particulars would not prejudice the defendants.  The court noted that the plaintiffs’ request to audiotape the neurophsychological examination was not supported by “special and unusual circumstances” warranting it:

“The Supreme Court has broad discretion in making determinations concerning matters of disclosure, including the nature and degree of the penalty to be imposed under CPLR 3126” … . However, “before a court invokes the drastic remedy of striking a pleading, or even of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious” … . Here, the Supreme Court improvidently exercised its discretion in granting that branch of the hospital defendants’ motion which was to conditionally preclude the plaintiffs from introducing evidence of the injured plaintiff’s neurological injuries, since there was no clear showing that the injured plaintiff had willfully and contumaciously failed to appear for a neuropsychological examination. Moreover, under the circumstances of this case, it cannot be said that the conduct of the plaintiffs or their attorney warranted the imposition of sanctions. * * *

“Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . Where there is an unreasonable delay in seeking leave to amend, without excuse, and the motion for leave to amend is made close to or on the eve of trial, it is an improvident exercise of discretion to grant the relief … . However, lateness alone is “not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side” … . In this case, the proposed amendment was first sought in September 2011. Since the hospital defendants and Roca were aware of the plaintiffs’ allegations well before the eve of trial, they were not prejudiced by the amendment. Under the totality of the circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the bill of particulars … . Dimouslas v Roca, 2014 NY Slip Op 06170, 2nd Dept 9-17-14

 

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Hearsay Can Not Be Sole Basis for Denial of Summary Judgment Motion

The First Department explained that, while hearsay can be submitted in opposition to a summary judgment motion, it can not be the sole basis for denying the motion:

“A party opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment” … . * * * …[D]efendant’s affidavit relies only on hearsay evidence … . The documentary evidence is to the contrary. Andron v Libby, 2014 NY Slip Op 06155, 1st Dept 9-11-14

 

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Failure to Subpoena Witness Required Reversal

The Third Department reversed the Unemployment Insurance Appeal Board because the putative employer, Brody, was entitled to call the claimant as a witness in a proceeding to determine whether Brody was required to make further unemployment insurance contributions. Claimant had done work for Brody and had subsequently applied for and was granted unemployment insurance benefits. Brody asked that claimant be subpoenaed to testify but the administrative law judge (ALJ) denied the request:

Brody was entitled to call claimant as a witness and, moreover, had the right to request that the ALJ issue a subpoena to compel her attendance (see Labor Law § 622 [1]; 12 NYCRR 461.4 [c]…). Claimant plainly had relevant testimony to offer as to whether an employer-employee relationship existed between her and Brody. The ALJ nevertheless declined to issue the requested subpoena, pointing out that counsel for Brody could have subpoenaed claimant directly. The failure to either issue a subpoena or to adjourn the proceedings so that counsel could do so constituted an abuse of discretion under the circumstances of this case and, thus, “we believe that the proper course is to reverse the Board’s decision and remit this matter for further proceedings”… . Matter of Philip…, 2014 Slip Op 06129, 3rd Dept 9-11-14

 

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Probation Department’s Unauthorized Taking of DNA Evidence Required Suppression/Inevitable Discovery Doctrine Applied to Deny Suppression of Identification Evidence and Defendant’s Statement

The Second Department determined the unauthorized taking of a buccal swap from a probationer for DNA testing required suppression of the DNA evidence.  The fact that the defendant was on probation did not strip the defendant of his Fourth Amendment rights.  However, because another DNA sample had been properly taken from the defendant a few days before, the identification evidence and defendant’s statement should not have been suppressed pursuant to the inevitable discovery doctrine:

The hearing court properly suppressed DNA evidence as tainted since the Nassau County Probation Department (hereinafter the Probation Department) took an unauthorized buccal swab from the defendant, which was a bodily intrusion subject to the constraints of the Fourth Amendment … . * * * The defendant’s status as a probationer did not “justify departures from the customary constitutional standards that apply in other settings” …, where, as here, it is undisputed that the provision of a DNA sample was not a condition of the defendant’s probation under any statutory or judicial authority. Moreover, since the DNA sample taken from the defendant implicated his constitutional rights, we reject the People’s argument that the Probation Department, in taking the unauthorized buccal swab, only committed a statutory violation that did not warrant suppression of evidence … .

The record reveals that an authorized DNA sample was taken from the defendant in connection with another, unrelated charge only days before he was arrested on the charges at issue on this appeal. Since another DNA sample had been taken from the defendant prior to his arrest, the People established a very high degree of probability that the evidence in question would have been obtained independently of the tainted source during the normal course of police investigation … . Accordingly, the hearing court should not have suppressed the identification evidence and the defendant’s statement to the police.  People v Adams, 2014 NY Slip Op 06098, 2nd Dept 9-10-14

 

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Paving Over Walk Where Plaintiff Fell Justified Striking the Answer and Granting Summary Judgment on Liability

The Second Department determined that the defendant’s paving over the walkway where plaintiff fell justified striking the answer and granting the plaintiff summary judgment on liability:

“The nature and the severity of the sanction [for spoliation] depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party” … . The determination of spoliation sanctions, whether the spoliation was intentional or negligent, lies within the broad discretion of the court … . “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … .

Here, the Supreme Court providently exercised its discretion in striking the defendant’s answer and awarding the plaintiff summary judgment on the issue of liability since the defendant paved over the walkway after receiving notice that the plaintiff intended to inspect it and after his own expert was afforded an opportunity to inspect the walkway prior to it being covered in cement … . Lentini v Weschler, 2014 NY Slip Op 06062, 2nd Dept 9-10-14

 

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Hearsay Deemed Insufficient to Support Determination

The Third Department annulled the disciplinary determination because the hearsay information upon which it was based was deemed insufficient:

“While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing Officer to make an independent assessment to determine its reliability and credibility” … . Notably, where the Hearing Officer obtains such information through the testimony of a correction officer who has interviewed a confidential informant, the questioning must be thorough and specific, to allow an adequate basis to gauge the informant’s knowledge and reliability … . The Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness … .

Here, the captain who prepared the misbehavior report stated that an inmate he spoke with identified petitioner as the individual who told other inmates in the mosque not to participate in the ILC election process. He stated that another inmate, who he apparently did not interview, gave a note to another correction official that similarly implicated petitioner. The correction official who received the note testified that he received several confidential letters from inmates indicating that petitioner was a major participant in the scheme to force inmates to boycott the ILC election process. He stated that he personally interviewed three inmates and, without revealing their identities to the Hearing Officer, related the information that they disclosed to him.

A number of deficiencies with the in camera interview lead us to conclude that it did not provide an adequate basis for the Hearing Officer to independently assess the credibility and reliability of the confidential information. First, the captain did not provide any testimony to establish whether the inmate he interviewed had previously provided credible information to him or other officials, and he admitted that he did not even know the inmate who gave the note to the other correction official. Similarly, the correction official who interviewed the three unidentified inmates did not articulate the bases for finding their statements to be believable. Significantly, none of the letters or notes written by inmates allegedly implicating petitioner were admitted into evidence … . Further, the statements of the inmates interviewed by the two officials lacked adequate specificity to establish petitioner’s status as a leader of the boycott, or his act of threatening violence … . Given these deficiencies, and as the confidential information was instrumental to the finding of guilt, we conclude that the determination is not supported by substantial evidence and must be annulled … . Matter of Muller v Fischer, 2014 NY Slip Op 06024, 3rd Dept 9-4-14

 

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Plaintiff Entitled to Summary Judgment Pursuant to Res Ipsa Loquitur Doctrine—Doctrine Explained In Depth

The First Department, over a dissent, determined summary judgement should have been granted to the plaintiff pursuant to the doctrine of res ipsa loquitur.  Plaintiff, a passenger on defendant’s train, was struck when a ceiling panel (used to access the ventilation system) swung open.  The decision includes an extensive discussion of the res ipsa loquitur doctrine:

While summary judgment is rarely granted in res ipsa loquitur cases, it is appropriate in “exceptional case[s],” such as this one, where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

To demonstrate a claim under the doctrine, a plaintiff must establish three elements: (1) the accident is of a kind that ordinarily does not occur in the absence of defendant’s negligence; (2) the instrumentality causing the accident was within defendant’s exclusive control; and (3) the accident was not due to any voluntary action or contribution by plaintiff … .

Plaintiff met all three elements with her submission of witness testimony and the testimony of defendant’s foreman. The foreman testified that the train’s HVAC and ventilation system was accessible through the ceiling panel that hit plaintiff. He also testified that to his knowledge, no one but defendant’s personnel accessed the ceiling panels and that he had no explanation for how the accident occurred. The foreman described the panel as being fastened to the ceiling with four screws outside and two safety latches and a safety chain inside.

Defendant concedes the first and third elements but argues that it did not have exclusive control over the ceiling panels. However, defendant offers no evidence to support its argument. Rather, defendant simply offers its attorney’s affirmation, in which counsel opines that “the only logical conclusion,” considering the foreman’s testimony, was that the accident occurred because [*2]of tampering by unauthorized individuals. This statement, which amounts to no more than counsel’s speculation about what might have happened, is insufficient to defeat plaintiff’s motion … . Barney-Yeboah v Metro-North Commuter RR, 2014 NY Slip Op 06036, 1st Dept 9-4-14

 

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Court Should Have Held a Hearing to Determine Whether Exigent Circumstances Justified Warrantless Forced Entry to an Apartment

The First Department determined that the motion court should have held a hearing to determine whether the forced entry of an apartment was justified by exigent circumstances.  At the time of defendant’s motion for a hearing, the facts surrounding the incident were not available to the defendant and the People’s response to the motion was “conclusory:”

In denying defendant’s application for a hearing, the Court summarily found that exigent circumstances justified the pursuit and warrantless entry, based upon the individuals in the hallway reportedly having smoked marijuana, then racing into the apartment and locking the door, and the need to prevent destruction of evidence. Defendant argues in his brief that at most some individuals were seen smoking marijuana, a class B misdemeanor that would not present exigent circumstances sufficient for a forced entry.

Under the circumstances presented here, where the information proffered by the People to support the forcible entry was conclusory and defendant did not have access to available information, we find that it was incumbent upon the motion court to conduct a hearing to determine whether there were sufficient exigent circumstances to justify the forced warrantless entry… . People v Chamlee, 2014 NY Slip Op 05921, 1st Dept 8-21-14

 

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