You are here: / Evidence
, ,

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

 

,

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

 

,

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

 

,

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 

 

,

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

 

,

“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

 

,

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

 

,

Officer Did Not Have Reasonable Suspicion Defendant Posed a Danger—Pat-Down Search Triggered by a Bulge In Defendant’s Waistband Was Not Justified Under the DeBour Test

The Second Department determined the arresting officer did not have reasonable suspicion that defendant posed a threat to his safety when he patted defendant down and retrieved a weapon from defendant’s waistband.  Defendant, who was first observed merely standing and smoking a cigarette, had walked away from the police, turned his back to them and made a motion as if shoving something into his front waistband.  The officer, seeing the bulge in defendant’s waistband, immediately patted the defendant down:

In People v De Bour (40 NY2d 210), the Court of Appeals established a “graduated four-level test for evaluating street encounters initiated by the police” … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality … . The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion short of a forcible seizure … . The third level permits a seizure, meaning that a police officer may forcibly stop and detain an individual, based upon a reasonable suspicion that an individual is committing, has committed, or is about to commit, a crime … . Finally, the fourth level authorizes an arrest based on probable cause to believe that a person has committed a felony or misdemeanor … .

Here, those branches of the defendant’s omnibus motion which were to suppress the gun and his statements should have been granted. Assuming that Officer Castillo was justified in conducting a common-law inquiry, he lacked reasonable suspicion to believe that the defendant posed a threat to his safety when he conducted a pat-down search of the bulge in his waistband … . The police were not responding to a report of a crime involving a weapon and, at most, suspected the defendant of being involved in the burglary of an abandoned house … . In addition, “[a]n unidentifiable bulge which is readily susceptible of an innocent as well as a guilty explanation’ is not sufficient to justify a pat-down search” … . The waistband bulge as described by Officer Castillo only permitted him to ask the defendant if he was carrying a weapon based on a founded suspicion that criminality was afoot … . Moreover, Officer Castillo did not testify that the defendant, upon turning to face the officers, reached for or had his hand on the bulge, or made any threatening or menacing gesture … . Under the totality of the circumstances, Officer Castillo was not justified in searching the defendant’s waistband bulge as a minimally intrusive self-protective measure. Accordingly, the hearing court should have granted those branches of the defendant’s omnibus motion which were to suppress the physical evidence and his subsequent statements to law enforcement officials. Since, in the absence of the suppressed evidence, there is insufficient evidence to prove the defendant’s guilt, the indictment must be dismissed … . People v Harris, 2014 NY Slip Op 08351, 2nd Dept 11-26-14

 

,

Criteria for Presentation of Defense Expert Re: the Accuracy of Eyewitness Testimony Explained (Criteria Not Met Here)

In finding that the defendant’s request to present expert evidence on the accuracy of eyewitness testimony was properly denied, the Second Department explained the relevant criteria:

Where a case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” … . Here, however, there was sufficient corroborating evidence connecting the defendant to the crimes to obviate the need for expert testimony * * *.  People v Granger, 2014 NY Slip Op 08349, 2nd Dept 11-26-14

 

,

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

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy