You are here: / Evidence
,

Evidence which Should Have Been Presented In the People’s Direct Case Should Not Have Been Allowed in Rebuttal

The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People’s evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party’s original case (see CPL 260.30[7]…). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is “simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” … .

Here, the missing element of the People’s case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense … . Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties’ expert witnesses ” hotly contested'” … whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious.

Because this case does not fit within “the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” …, the Supreme Court improvidently exercised its discretion in granting the People’s application to present the nurse’s testimony in rebuttal. Without this testimony, the People’s evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt … . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014

 

,

Admissible Hearsay Concerning the Child’s Injuries and Evidence Relevant to the Child’s Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding

The Second Department determined Family Court erred in excluding evidence from a neglect proceeding.  The excluded evidence included hearsay statements by a police officer included in the Investigative Progress notes indicating the child’s (Jonell H’s) bruises were not severe, and evidence relevant to the child’s motivation to lie:

At the fact-finding hearing, the Family Court erred in excluding from evidence Investigation Progress notes dated April 18, 2010, indicating that a police officer had informed a caseworker that the officer had visited Jonell H. shortly after the alleged neglect took place and observed that the bruises on her right arm were “not serious” and that “[t]here [are] not other visible bruises/marks observed” on her. These notes were admissible under the business records exception to the hearsay rule since the caseworker was under a duty to maintain a comprehensive case record for Jonell H., and the officer had a duty to report his or her observations of her condition … .

The Family Court also erred in precluding the mother from calling four particular witnesses to testify. Those witnesses would have given testimony pertaining to Jonell H.’s motivation to lie. Extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground … . Similarly, the court should not have excluded from evidence Family Service Progress notes containing statements by Jonell H.’s foster parents relevant to her motivation to lie. Foster parents are “employees who [are] under a business duty to timely record and report all matters concerning the physical, mental, and emotional conditions of the children in their care to the foster care agency” … .  Matter of Grayson J, 2014 NY Slip Op 04934, 2nd Dept 7-2-14

 

,

Lack of Notice of Alleged Dangerous Condition Established by Custodian’s Testimony

The Second Department determined that the testimony of the school custodian that he had inspected the floor shortly before plaintiff allegedly slipped and fell on accumulated water entitled the defendant school to summary judgment:

” To impose liability on a defendant for a slip and fall on an allegedly dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time'” … . ” A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected'” … . “To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … .

Here, the Board of Education established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the custodian engineer assigned to clean the school. He testified that he inspects the school, including the bathrooms, every morning to make sure that it is safe and clean. He further testified that he had last inspected the subject bathroom approximately two to two and one-half hours before the infant plaintiff allegedly was injured, and that there was no liquid on the floor at that time. The Board of Education also submitted the affidavit of a school administrator who averred that the school had not received any complaints regarding water on the floor of the subject bathroom between the time of the inspection and the time of the alleged accident. Additionally, the Board of Education submitted the deposition testimony of the infant plaintiff’s mother, who admitted that, prior to the accident, the infant plaintiff never complained to her about water accumulation on the bathroom floors … . Farren v Board of Educ of City of NY, 2014 NY Slip Op 04896, 2nd Dept 7-2-14

 

,

Statement Made Before Any Possible Motive to Falsify Should Have Been Admitted to Rebut Assertion of Recent Fabrication

The Second Department determined the trial court committed reversible error by excluding a statement made to medical personnel by the infant plaintiff.  It was crucial to the plaintiff’s case to demonstrate that she was injured falling from the monkey bars at the school’s playground.  The case sounded in negligent supervision and students plaintiff’s age were not permitted on the monkey bars. When receiving medical treatment plaintiff said she fell from the monkey bars and her statement was included in the medical records. The Second Department deemed the statement admissible to rebut the assertion of recent fabrication and, in addition, because the statement was germane to her treatment:

The Supreme Court erred in precluding the plaintiffs from admitting the proffered medical record into evidence and in denying their renewed request to introduce the medical record. Ordinarily, “[t]he testimony of an impeached or discredited witness may not be supported or bolstered by proving that he [or she] has made similar declarations out of court” … . However, an out-of-court statement “made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a recent fabrication” … . Here, the focus of the defense was not merely that the infant plaintiff was mistaken or that she was confused or could not recall her accident, but that she was coached to tell a “false story well after the event” and, as such, it was a recent fabrication … . Moreover, the statement fell within another exception to the hearsay rule, as it was germane to the infant plaintiff’s medical treatment on the date of the incident …. Nelson v Friends of Associated Beth Rivka School for Girls, 2014 NY Slip Op 04908, 2nd Dept 7-2-14

 

, ,

Pedestrian’s Action, In Violation of City Pedestrian Rules, Was the Proximate Cause of Pedestrian’s Injuries (Pedestrian Was Struck by a Car)

The Second Department determined Supreme Court properly refused to set aside the verdict in favor of the defendant.  Plaintiff, a pedestrian, had been struck by a car just as he stepped off the curb in violation of city rules for pedestrians:

Here, a fair interpretation of the evidence supported the jury’s finding that an unknown operator of a motor vehicle involved in an accident with the plaintiff, a pedestrian, was not negligent. Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(1), entitled “Operators to yield to pedestrians in crosswalk,” provides that “[w]hen traffic control signals or pedestrian control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(b)(2), entitled “Right of way in crosswalks,” provides that “[p]edestrians shall not cross in front of oncoming vehicles. Notwithstanding the provisions of (1) of this subdivision (b), no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the operator to yield.” Rules of City of New York Department of Transportation (34 RCNY) § 4-04(c)(2) provides that “[n]o pedestrian shall cross any roadway at an intersection except within a cross-walk.” According to the plaintiff, he stepped off a sidewalk approximately one car length away from the corner in an attempt to cross Rockaway Beach Boulevard at Beach 96th Street in Queens. The plaintiff conceded that there was no designated crosswalk at that intersection. Almost immediately after the plaintiff had stepped off the curb, his leg came into contact with the right side of the unidentified motor vehicle after he had walked approximately two feet into the roadway. Thus, there was ample evidence adduced at trial from which the jury could have reasonably found that the plaintiff violated Rules of City of New York Department of Transportation (34 RCNY) §§ 4-04(b)(2) and (c)(2), and that those violations, rather than any conduct on the part of the unknown motorist, proximately caused the accident … . Rivera v Motor Veh Acc Indem Corp, 2014 NY Slip Op 04911, 2nd Dept 7-2-14

 

,

Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule

In a decision which affirmed the conviction and addressed several other important evidentiary issues, the Fourth Department noted that a statement identifying the defendant as the shooter made by a witness who did not see the shooting should not have been admitted under the present sense impression exception to the hearsay rule:

It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward . . . , and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” (id. at 382). Here, the witness did not see the shooting, and he confirmed defendant’s identity as the shooter only after questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014). Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter … . People v Mulligan, 2014 NY Slip Op 04588, 4th Dept 6-20-14

 

,

Providing a False Name During Booking Did Not Trigger the Need for a Miranda Warning

The Second Department determined the police were not required to give the defendant Miranda warnings when the defendant gave a false name during the booking procedure:

When the defendant gave what a police officer suspected to be a false name, the officer warned him that giving a false name would result in an additional charge, as required by the false personation statute (see Penal Law § 190.23). The defendant then repeated the false name after being given a second warning. The officer’s warnings to the defendant did not require Miranda warnings (see Miranda v Arizona, 384 US 436). There is no basis for suppressing the defendant’s repeated use of a false name. Ascertaining an arrestee’s true name is a necessary part of the normal booking process, even if the response may have inculpatory connotations … . The false personation warnings were required by statute and were not reasonably likely to elicit an incriminating response .. . People v Allen, 2014 NY Slip Op 04503, 2nd Dept 6-18-14

 

,

Warrantless Search of a Backpack Dropped During a Struggle with Police Was Not a Valid Search Incident to Arrest

The Second Department determined that the search of defendant’s backpack, which turned up a loaded weapon, was not a valid search incident to arrest.  The backpack had been dropped during a struggle with the arresting officer and the arrest took place some distance away from where the backpack was:

“Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . “When an individual subjected to arrest has a privacy interest in property within his or her immediate control or grabbable area’, [the Court of Appeals] has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” …

Contrary to the Supreme Court’s determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant’s immediate control or “grabbable area” at the time he was arrested … . Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon … . Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion. People v Thompson, 2014 NY Slip Op 04524, 2nd Dept 6-18-14

 

,

Children’s Out-of-Court Statements Sufficiently Corroborated

In upholding a finding of neglect, the Second Department determined the out-of-court statements of the children were sufficiently corroborated to be admissible:

In a child protective proceeding, “[u]nsworn out-of-court statements of the [subject child] may be received and, if properly corroborated, will support a finding of abuse or neglect …  * * *

Here, the out-of-court statements of siblings Alysa and Joseph to the caseworker were corroborated by the caseworker’s personal observations, the two children’s own cross-corroborating statements, confirmation of certain events by their older sister Selena and brother Mateo, and certain statements by the mother, and were properly considered by the Family Court (see Family Ct Act § 1046[a][vi]; …).  Matter of Mateo S. 2014 MY Slip Op 04497, 2nd Dept 6-18-14

,

Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim

The Fourth Department, in affirming defendant’s conviction stemming from the death of a passenger after defendant’s vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant’s post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim’s injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:

“The general rule is stated in People v Pobliner (32 NY2d 356, 369…) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” … . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury’s factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14

 

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