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Failure to Submit Expert Affidavit In Support of Meterological Data Precluded Summary Judgment Based Upon Defendant City’s Assertion It Did Not Have Sufficient Time to Remove Snow and Ice from a Sidewalk

The First Department, over a dissent, determined summary judgment should not have been granted to the defendant city in a slip and fall case.  The city argued that it did not have sufficient time to address the snow and ice on the sidewalk, and submitted meterological data without an expert affidavit.  The First Department determined the absence of an expert affidavit precluded summary judgment:

“Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident” … . Accordingly, because it failed to offer an expert opinion, in addition to the meteorological records, the City’s motion should have been denied without regard to the sufficiency of plaintiff’s papers in opposition … . While, as the dissent notes, no expert affidavit was required by this Court in Daley v Janel Tower L.P. (89 AD3d 408 [1st Dept 2011]), it is worth noting that there it was hardly needed.  it is worth noting that there it was hardly needed. That is because in Daley “the climatological reports showed that it last snowed more than one week prior to plaintiff’s fall and that during the three-day period prior to plaintiff’s fall, temperatures remained well above freezing” (89 AD3d at 409). Here, by contrast, the climatological reports showed that, except for a few hours of above-freezing temperatures and non-freezing rain, temperatures generally remained below freezing for the entire period between the December 19 storm and the accident four days later. Plaintiff’s expert opined that these conditions were suitable for the ice that formed as a result of the initial storm to remain, but not for the formation of new ice, which the City would have had insufficient time to clear. Without an expert to interpret the meteorological record in a way that would disprove this theory, the City failed to establish a right to judgment as a matter of law. Rodriguez v Woods, 2014 NY Slip Op 06887, 1st Dept 10-14-14

 

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Defendant Did Not Forfeit His Right to Counsel by Making Four Applications for Reassignment of Assigned Counsel/Evidence of Burglary and Criminal Mischief Insufficient–Possession of Stolen Items Not Enough

The Second Department reversed defendant’s conviction, finding that defendant had not forfeited his right to counsel because he had made four applications for reassignment of assigned counsel.  The court also determined the possession of stolen items removed in time from the burglary, without more, was not enough to support the burglary and criminal mischief convictions.  With respect to the “forfeiture of the right to counsel,” the court explained:

The record does not support a finding that the defendant forfeited the right to counsel. Where a criminal defendant moves for reassignment of counsel as a mere dilatory tactic, that application may properly be denied … . However, a finding of a forfeiture of the right to counsel is an “extreme, last [ ] resort” … . Here, the record does not show that the defendant engaged in any conduct warranting a forfeiture finding. Rather, the record shows that, at most, he engaged in dilatory conduct, refused to cooperate with his attorneys and was argumentative, and at one point “yelled” at one of his attorneys in an incident characterized by the Supreme Court as a “heated exchange.” Further, it is undisputed that the defendant did not validly waive the right to counsel. Indeed, the record shows that he consistently sought the assistance of assigned counsel.

The defendant’s conduct, as reflected by the record, did not support or justify the Supreme Court’s ruling, which forced the defendant to proceed to trial without the benefit of counsel … . People v Isaac, 2014 NY Slip Op 06844, 2nd Dept 10-8-14

 

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Legal Underpinning of the “Fellow Officer” Rule Explained

The Second Department determined defendant’s motion to suppress was properly denied.  The defendant’s arrest was based upon a transmission to the arresting officers but the prosecution did not introduce any evidence of the identity of the transmitting officer. The court offered an in-depth explanation of the “fellow officer” rule:

“Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of or as a result of communication with’ a fellow officer . . . in possession of information sufficient to constitute probable cause for the arrest” … . Probable cause exists when “an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed” … . At a suppression hearing, the prosecution has the burden of establishing that the officer who transmitted the information had probable cause … .

The fellow officer rule is a “straightforward application” of the two-pronged Aguilar-Spinelli test … , which New York courts use to assess whether hearsay information is sufficient to establish probable cause for a warrantless arrest or the issuance of a warrant … . The Aguilar-Spinelli test first requires the suppression court to assess whether the information on which the police have acted is reliable … . The second part of the Aguilar-Spinelli test evaluates whether the informant had an adequate “basis of knowledge” for the information supplied… . Under the fellow officer rule, “[i]nformation received from another police officer is presumptively reliable” … . The People still, however, must satisfy the second prong of the Aguilar-Spinelli test: how the transmitting officer acquired that information.

Here, under the fellow officer rule, the arresting officers were entitled to presume that the information they received from an undercover officer was reliable. Moreover, under the circumstances of this buy and bust operation, it is clear that the transmitting officer, whether it was the ghost undercover officer or the primary undercover officer, had an adequate basis of knowledge for the information transmitted, either from direct participation in the transaction or observation of it. Contrary to the defendant’s contention, the undercover officer who made the transmission was not required to delineate the defendant’s exact role in the transaction in order to establish probable cause for his arrest … . People v Oglesby, 2014 NY Slip Op 06845, 2nd Dept 10-8-14

 

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Prosecution Failed to Prove the Requisite Intent and Materiality in a Perjury Case

In reversing defendant’s (Hadid’s) conviction for perjury, the Second Department determined there was insufficient evidence defendant testified with the requisite intent and there was insufficient evidence the allegedly perjurious statement was “material.” The alleged perjury was testimony by the defendant at the trial of one Kargu. The decision illustrates the stringent proof requirement in a perjury case:

Viewing the evidence in the light most favorable to the prosecution … , we find that it was legally insufficient to establish Hadid’s guilt of perjury in the first degree beyond a reasonable doubt … . As a matter of law, the evidence failed to establish that Hadid had made a false statement under oath. To prove falsity, the prosecution must show that the witness was intentionally, rather than mistakenly, testifying falsely … . To determine intent, the court will look at whether the statement at issue related to a memorable fact, the significance of the event at the time it occurred, the line of inquiry of the examiner, and whether a fact was deliberately concealed if concealment is alleged … . * * *

The People’s also failed to establish beyond a reasonable doubt that Hadid’s statements were material to the Kargu trial … . ” [T]he test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before it'” … .

Contrary to the prosecution’s contention, neither Hadid’s statements at trial nor his credibility were material to Kargu’s guilt or nonguilt … . People v Hadid, 2014 NY Slip Op 06842, 2nd Dept 10-8-14

 

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Criteria for Setting Aside a Defense Verdict Not Met

The Fourth Department determined a verdict for the defense in a medical malpractice action should not have been set aside as against the weight of the evidence.  The court explained the criteria in the context of conflicting expert testimony:

“A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” … . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” …, and the trial court “should not set aside [a] verdict unless it is palpably irrational or wrong” … . * * *

“Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert’s opinion and reject that of another expert” …, and, unlike the trial court, we perceive no reason to disregard the testimony of defendants’ expert … . Lesio v Attardi, 2014 NY Slip Op 06705, 4th Dept 10-3-14

 

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Out-of-Court Statements by Defendant and Unknown Woman with Whom Defendant Spoke on the Phone from Jail Admissible

The Fourth Department determined that out-of-court statements made by the defendant in phone calls from jail and a statement made by an unknown woman defendant was talking to were admissible because they were not offered for the truth of the matters asserted:

Defendant … contends that the court erred in admitting in evidence the recordings of two telephone calls he made from jail following his arrest. During the first call, defendant said to an unknown female, “Tell him [defendant’s father] what happened to my ID.” Defendant was referring to his claim that his jacket, containing his parole identification card, had been stolen from his father’s car. During the second call, an unknown female informed defendant that his father told the police that his car had not been running for “a long-ass time,” and in response defendant instructed the female to tell his father “not to mention” that the car was not running. We reject defendant’s contention that his own above-referenced statements constitute inadmissible hearsay. The statements in question were not offered for the truth of the matters asserted …; instead, they were offered to show that defendant appeared to be fashioning an innocent explanation for the fact that his parole identification card was found at the crime scene. Defendant failed to preserve for our review his contention that the statement made by the unknown female during the second call constituted inadmissible hearsay. In any event, that statement was admissible to put defendant’s responding statement into context by providing “necessary background information to the jury” … . People v Scarver, 2014 NY Slip Op 06713, 4th Dept 10-3-14

 

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Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant—Defendant Did Not Open the Door for Use of the Statement by Contradicting It On Direct

The Fourth Department determined statements made by the defendant, which had been suppressed, were improperly admitted to impeach the defendant (harmless error however):

…Supreme Court erred in permitting the prosecutor to impeach him with the statement that he made to State University police officers. That statement had been suppressed, and defendant did not open the door to its use for impeachment by giving testimony contrary to the statement during his direct examination… . People v Blair, 2014 NY Slip Op 06730, 4th Dept 10-3-14

 

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Police Did Not Demonstrate They Had a “Founded Suspicion Criminality Was Afoot” Before Asking For and Receiving Defendant’s Permission to Search His Car

The Fourth Department determined the police failed to demonstrate they had a “founded suspicion that criminality was afoot” when they asked defendant for permission to search his car.  The marijuana and firearm found in the search should have been suppressed:

The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot … . It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion … . Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court’s finding that the officers smelled marihuana as soon as they approached the vehicle.  People v Wideman, 2014 NY Slip Op 06698, 4th Dept 10-3-14

 

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Parole Officer Was Not Acting “Merely as a Conduit” for the Police In Conducting a Search—The Search Was Related to the Parole Officer’s Duties

In rejecting the defendant’s argument that the search by his parole officer was illegal because the search was not related to the performance of the parole officer’s duties, the Fourth Department explained the relevant law:

A parolee’s right to be free from unreasonable searches and seizures is not violated if a parole officer’s search of the parolee’s person or property “is rationally and reasonably related to the performance of his duty as a parole officer” … . A parole officer’s search is unlawful, however, when the parole officer is “merely a conduit’ for doing what the police could not do otherwise” … . Stated differently, “a parolee’s status ought not to be exploited to allow a search which is designed solely to collect contraband or evidence in aid of the prosecution of an independent criminal investigation” … .

Here, defendant’s contention that the parole officer was acting as an agent of the DEA is undermined by the uncontroverted testimony of the parole officer that she was informed by a DEA agent prior to the search that the federal prosecutor “will most likely not want to get involved” in the case if an arrest were made, and by the fact that no federal charges were ever lodged against defendant. Rather, the parole officer testified that she conducted the search because she received credible information from law enforcement sources that defendant possessed a large quantity of cocaine in his apartment, which violated his parole conditions, and the court found her testimony in that regard to be credible. We thus conclude that the court properly determined that the search was rationally and reasonably related to the performance of the parole officer’s duties, and that suppression was therefore not warranted … . People v Escalera, 2014 NY Slip Op 06700, 4th Dept 10-3-14

 

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Hearing Ordered to Reconstruct Contents of Missing Recording of 911 Call

The Fourth Department would not reverse defendant’s conviction due to the post-trial loss of the recording of a 911 call, the contents of which were important on appeal.  Instead, the court ordered a reconstruction hearing to create a record of the contents of the call.  People v Thomas, 2014 NY Slip Op 06710, 10-3-14

 

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