In affirming a rape conviction, the Fourth Department noted it was not necessary to apply the “prompt outcry” hearsay exception to the victim’s testimony about her own out-of-court statements because the statements were not hearsay. People v Curran, 1323, KA 08-01510 Fourth Dept. 2-1-13
Defendant went to trial before he pled guilty. On appeal he argued the court erred in admitting recorded conversations. The Fourth Department determined, by pleading guilty, the defendant forfeited his right to seek review of any nonjurisdictional defects in the proceedings, including issues arising from an audibility hearing and evidentiary rulings during trial. People vs Alvarado, 130, KA 11-02011 Fourth Dept. 2-1-13
Flight was not sufficient to justify police pursuit. A police officer had been shot in the afternoon. About eight hours after the shooting, uniformed officers approached the defendant as he was walking within a block or two of where the shooting occurred. The defendant said “What, we can’t go to the store?” turned his back, made a gesture toward his waistband, and ran. The police pursued him and saw him discard a handgun from his pocket as he was being tackled by an officer. The defendant subsequently pled guilty to criminal possession of a weapon. The Fourth Department reversed the conviction and vacated the sentence. “Flight alone … is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry …”. Because there were no “specific circumstances indicating that the suspect [was] engaged in criminal activity,” there was no “reasonable suspicion” of criminal activity, “the necessary predicate for police pursuit…”. People v Cady, 1427, KA 12-00337 Fourth Dept. 2-1-13
DeBour, street stops
The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial. Defendant was charged with rape. Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse. The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury]. “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.” The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.” People v Snyder, 1370, KA 11-00316 Fourth Dept. 2-1-13
A 19-year preindictment delay did not violate defendant’s speedy trial and due process rights. The charge was murder. The defendant was at liberty until indicted. The People established good cause for the delay in that the case was not ready to bring to a grand jury until the statements of three witnesses and DNA test results were obtained. The Fourth Department held that there was no need for a Singer hearing to determine the reason for the delay because there was no issue of fact with respect to the cause of the delay and the record provided County Court with a sufficient basis to determine whether the delay was justified. The admission of prior incidents of domestic violence against the victim (defendant’s wife) was proper because the evidence was probative of defendant’s motive, intent and identity. The defendant was not entitled to a circumstantial evidence charge because the admissions he made about killing his wife constituted direct evidence. People v Rogers, 1425, KA 11-00012 4th Dept. 2-1-13
A new trial was ordered and the defendant’s motion to suppress identification evidence was granted by the Second Department. A police radio broadcast described a robbery in progress by two males wearing black jackets, one wearing blue jeans, the other wearing black jeans. The complainant described the robbers only as “wearing dark clothing,” one taller than the other, and one with a hood. The Court held that these descriptions were not sufficient to provide reasonable suspicion to stop and detain the defendant, who was dressed in a dark gray and dark green camouflage jacket and was standing alone 20 blocks from the crime scene. People v Polhill, 2010-01680, Ind. No. 943/09 Second Dept. 1-30-13
DeBour, street stops
In a full-fledged opinion by Justice Richter discussing a breach of contract case with a convoluted history, the First Department dealt with the spoliation of evidence and the appropriate sanctions for spoliation under the CPLR. It was alleged that a document was deliberately scorched so its authenticity could not be determined by scientific tests. The Court remanded the case for a hearing on the spoliation issue and determined that, under the facts of the case, if spoliation is demonstrated at the hearing, striking the pleadings would not be an appropriate sanction. The Court suggested a monetary sanction. Although most of the decision deals with the factual history of the case, there are substantive discussions of sanctions for discovery abuse under CPLR 3126 and the doctrine of equitable estoppel. Melcher v Appolo Medical Fund Management, LLC, et al, 4759-4764, Index 604047/03 First Dept. 1-29-13.
In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value. The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value. People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13
The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour. He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department, in a full-fledged opinion by Justice Friedman, included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.” In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 First Dept. 1-22-13.
The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain. The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review. People v McCray, 103682 Third Dept 1-17-13
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