You are here: / Evidence
,

Failure to Submit Management Agreement Required Dismissal of Property Managing Agent’s Motion for Summary Judgment in a Slip and Fall Case—the Terms of the Agreement Determine the Agent’s Liability

The Second Department determined that the property managing agent, in a slip and fall case, did not eliminate all triable issues of fact concerning liability for plaintiff’s fall on black ice because it did not submit a copy of the managing agreement with its motion for summary judgment:

As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property … . A duty of care on the part of a managing agent may arise where there is a comprehensive and exclusive management agreement between the agent and the owner that displaces the owner’s duty to safely maintain the premises … . Here, in moving for summary judgment, the … defendants failed to submit a copy of the written management agreement. Consequently, they failed to establish, prima facie, that the managing agent owed no duty of care to the plaintiff … . Calabro v Harbour at Blue Point Home Owners Assn Inc, 2014 NY Slip Op 05620, 2nd Dept 8-6-14

 

,

Closed Box Properly Seized and Searched Under the Plain View Doctrine

The Second Department determined a police officer properly seized evidence under the plain view doctrine.  The box that was seized and opened had the words “Smith & Wesson” on it:

Here, the evidence at the suppression hearing established that a police officer was lawfully present in the apartment building where the defendant resided … . The officer discovered the challenged physical evidence, a handgun and ammunition, in a gun box located in a common storage area accessible to anyone in the building. The box was not locked, and there was no indication that the defendant’s name or other personal identification, such as his apartment number, was on the box which would lead one who observed it to understand that it belonged to the defendant or a person living in his apartment … . The box was clearly marked “Smith and Wesson.” Under these circumstances, the distinctive label on the outside of the box “proclaimed [its] contents” and, as such, made it immediately apparent to the officer that the box contained a firearm …, thus authorizing the officer to seize the box without a warrant … . Furthermore, since the gun box, “by its very nature, could not support any reasonable expectation of privacy because its content could be inferred from its outward appearance” … , the officer lawfully opened the box, and discovered the handgun and ammunition inside. People v John, 2014 NY Slip Op 05653, 2nd Dept 8-6-14

 

,

Grand Jury Testimony Given a Year After the Relevant Event Should Not Have Been Admitted as “Past Recollection Recorded”—New Trial Ordered

After noting that the defendant, who refused to sign a written waiver of his right to remain silent, waived the right by agreeing to speak to the police, the Second Department determined grand jury testimony, given a year after the relevant event, should not have been allowed in evidence as past recollection recorded:

“The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . In light of the one-year gap between the time the witness allegedly heard the defendant’s alleged inculpatory statements and the witness’s grand jury testimony, the People failed to establish that the witness’s recollection of the matter was “fairly fresh when recorded or adopted” during the grand jury proceeding … . People v Wilkinson, 2014 NY Slip Op 05661, 2nd Dept 8-6-14

 

, , ,

In the Context of a Challenge to the Tax Assessment of a Home, the Town Must Obtain a Warrant Based Upon Probable Cause Before It Can Enter the Home (Over the Homeowner’s Objection) to Inspect it

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the Town did not make the requisite showing to justify an inspection of the interior of petitioner’s home.  Petitioner had challenged the tax assessment of her property.  Supreme Court had ruled the Town could enter petitioner’s home to inspect it.  The Second Department reversed, finding that Supreme Court improperly placed the burden on the petitioner to demonstrate why inspection should not be allowed.  The burden should have been placed on the Town to make a showing that a warrant allowing entry of the home was supported by probable cause:

We hold that the Town respondents bore the burden of demonstrating their entitlement to enter the petitioner’s home over her objections. The petitioner bore no burden, in the first instance, to demonstrate her right to preclude the Town respondents from entering into her home against her will. The right to be free from unreasonable searches is granted by the Fourth Amendment, and made applicable to the States and their subdivisions by virtue of the Fourteenth Amendment (see Mapp v Ohio, 367 US 643), though this right is by no means absolute. By directing the petitioner to move to preclude the Town’s appraiser from conducting an interior appraisal inspection of her home, the Supreme Court improperly shifted, from the Town respondents, the burden of demonstrating their entitlement to enter into the petitioner’s home, to the petitioner to demonstrate her right to preclude the Town respondents from sending an agent into her home. We further hold that, based on a proper balancing of the Town respondents’ interest in conducting the inspection against the petitioner’s Fourth Amendment rights, and the privacy invasion that such a “search” would entail, the Town respondents failed to satisfy their burden. * * *

Since the Town respondents sought entry into the petitioner’s home to have the Town’s appraiser conduct an inspection of the premises, the Town respondents were required to obtain a warrant upon a showing of probable cause. By directing the petitioner to move to preclude the Town respondents from conducting an interior inspection of her home, the Supreme Court improperly shifted the burden from the Town respondents to demonstrate their entitlement to entry into the petitioner’s home upon a showing of probable cause, to the petitioner to demonstrate her right to deny entry to the Town respondents … . “[B]y erroneously requiring [the] petitioner[ ] to move to preclude, the court did not properly evaluate the reasonableness of the inspections sought by respondents, i.e., the court did not conduct the necessary Fourth Amendment analysis balancing respondents’ need for interior inspections against the invasion of petitioner[‘s] privacy interests that such inspections would entail” … . Matter of Jacobowitz v Board of Assessors for the Town of Cornwall, 2014 NY Slip Op 05544, 2nd Dept 7-30-14

 

,

People Failed to Demonstrate Seizure of Heroin from Defendant’s Impounded Vehicle Was Pursuant to a Standard Inventory Search—Heroin Should Have Been Suppressed

The Third Department, over a dissent, determined that heroin seized from inside defendant’s vehicle after a stop for speeding should have been suppressed.  The defendant was arrested at the scene of the stop based upon an outstanding warrant. The People failed to demonstrate the heroin was found pursuant to a standard inventory search of the impounded vehicle:

Following a lawful arrest of the driver of a vehicle, “the police may impound the car, and conduct an inventory search, where they act pursuant to ‘reasonable police regulations relating to inventory procedures administered in good faith'” … . To this end, “courts have insisted that an inventory search be conducted according to a familiar routine procedure and that the procedure meet two standards of reasonableness” … . Specifically, the procedures must be “designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field” … .

Here, the transcript of the … suppression hearing fails to support a determination that the conduct of the police was reasonable. Although not fatal to their argument against suppression …, the People failed to offer a copy of the State Police procedure manual into evidence. Additionally, the People also failed to ask any substantive questions of their witnesses so as to otherwise establish (1) that the State Police had a standardized procedure, (2) that such procedure was reasonable, and (3) that it was followed here. People v Leonard, 2014 NY Slip Op 05468, 3rd Dept 7-24-14

 

,

Failure to Specifically Demonstrate When Area Where Fall Occurred Was Last Inspected or Cleaned Required Denial of Summary Judgment

The Second Department determined the defendant did not meet its burden of demonstrating a lack of constructive notice of the condition of the stairway where plaintiff fell (allegedly the presence of dirty paper and urine):

Although the defendant submitted an affidavit from the supervisor of the caretaker assigned to clean the subject building on the day immediately preceding the plaintiff’s nighttime accident, that affidavit was insufficient to establish when the stairway was last inspected and cleaned relative to the plaintiff’s fall. The affidavit was conclusory and only referred, in a general manner, to the janitorial schedule followed on normal weekdays. Moreover, another caretaker testified at his deposition, and the defendant concedes, that the normal weekday janitorial schedule was not in effect on the day preceding the plaintiff’s accident, which was the Thanksgiving holiday. Since the defendant did not provide evidence regarding any specific cleaning or inspection of the area in question on that day, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law… . Williams v New York City Hous Auth, 2014 NY Slip Op 05425, 2nd Dept 7-23-14

 

, ,

Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

, ,

Defendant’s Actions In Driving Under the Influence and Causing a Collision Did Not Support Convictions for Offenses Requiring Proof of a Depraved Indifference to Human Life

The Second Department determined that there was insufficient proof of “depraved indifference” to support defendant’s convictions for first degree assault and reckless endangerment stemming from a collision with a vehicle driven by Petrone:

Depraved indifference is ” best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not'” … . It is embodied in conduct that is ” so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes [serious physical injury to] another'” … .

The issue of whether a defendant possessed a state of mind evincing depraved indifference to human life is highly fact-sensitive, requiring a case-by-case analysis … . Here, the prosecution’s witnesses established that the defendant’s vehicle, without braking, collided into the back of Petrone’s vehicle while both were traveling eastbound in the left lane on Northern Boulevard. The collision was of such force that both vehicles left the roadway and flipped over. Moreover, the testimony of the forensic toxicologist demonstrated that, at the time of the accident, the defendant was significantly impaired due to his ingestion of six different drugs, including methadone. Nevertheless, the evidence of the defendant’s conduct did not support a finding of depraved indifference. The defendant was not driving well in excess of the speed limit, he was not driving the wrong way into oncoming traffic, he had not failed to obey traffic signals, and there was no evidence that he was driving erratically prior to the collision … . Under these factual circumstances, the prosecution failed to establish that the defendant possessed an “utter disregard for the value of human life” or that he “simply [did not] care whether grievous harm result[ed] or not” from his actions … . Consequently, there is simply no “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion” … that the defendant acted with depraved indifference to human life when he caused the injuries to Petrone… . People v Jakobson, 2014 NY Slip Op 05354. 2nd Dept 7-16-14

 

, ,

Claimant’s Inculpatory Statement Demonstrated to Be Product of Police Misconduct

Fourth Department affirmed the judgment against the state for wrongfull conviction and imprisonment.  After nine years of imprisonment for attempted murder, another came forward and credibly confessed to the crime.  The claimant was released and sued the state.  The state argued on appeal that, because the claimant made an inculpatory statement, the proof that he did not bring about his own conviction was insufficient.  In rejecting that argument, the court explained:

Claimant consistently maintained his innocence and contended that his inculpatory statement was coerced. “[A] coerced false confession does not bar recovery under section 8-b because it is not the claimant’s own conduct’ within the meaning of the statute” … . It is well settled that “[t]he voluntariness of a confession can only be determined through an examination of the totality of the circumstances surrounding the confession” … . “Relevant criteria include the duration and conditions of detention, the manifest attitude of the police toward the detainee, the existence of threat or inducement, and the age, physical state and mental state of the detainee” … . The use or misuse of a polygraph examination is also a factor to be considered in determining whether there was impermissible coercion … .

Here, we conclude that the record fully supports the court’s determination that claimant’s inculpatory statement was the product of police misconduct … . Claimant was awake for 34 hours before making his only inculpatory statement, which was the second statement he made. He had been interrogated for 15 hours in a six- by eight-foot windowless room. He ate nothing and drank only one can of soda and, although he was a heavy smoker, he had no cigarettes in the prior four or five hours. He remained under the severe emotional trauma of having seen his wife in a horrible bloodied and battered condition. Claimant was advised that, if he took a polygraph exam and passed, he would be permitted to go home.

Notably, the polygraph operator expressed significant concern to fellow officers about the reliability of the polygraph exam because claimant was “somewhat physiologically unresponsive to the polygraph.” Gristwood v State of New York, 2014 NY Slip Op 05259, 4th Dept 7-11-14

 

, ,

Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered

In reversing the defendant’s grand larceny conviction, the Fourth Department determined the evidence of the value of the property was “conclusory” consisting only of “rough estimates” and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:

…[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is “not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi” … . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer “testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]…). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant’s guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors… . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14

 

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