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Decedent’s Statements Admissible Evidence of Pain and Suffering/Damages for Loss of Household Services Explained

The Second Department, in a case where medical malpractice was conceded, determined certain statements made by the decedent were admissible as excited utterances or present sense impressions.  In addition, the damages related to economic loss where decedent was not employed outside the home and devoted 20 hours per week to the care of his disabled daughter were analyzed:

Contrary to the hospital’s contentions, admissible evidence established the decedent’s conscious pain and suffering during the days prior to his death and on the day of his death. The decedent’s statements to his wife … complaining of pain, discomfort, hunger, difficulty breathing, and feeling that he was dying, were excited utterances or present sense impressions, or both, and therefore admissible as exceptions to the hearsay rule “for the truth of the matters they assert[ed]” … . The present sense impressions were sufficiently corroborated … by the testimony of the decedent’s wife regarding the decedent’s appearance when she visited him, as well as the testimony of the plaintiffs’ medical experts based on the hospital records. * * *

We agree with the hospital that the plaintiffs failed to establish the decedent’s lost earnings, past or future. However, “[i]n the case of a decedent who was not a wage earner, pecuniary injuries’ may be calculated, in part, from the increased expenditures required to continue the services [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance” … .

“[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent’s services” … . Hyung Kee Lee v New York Hosp Queens, 2014 NY Slip Op 04171, 2nd Dept 6-11-14

 

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No Exigent Circumstances to Justify Search of a Closed Container in Defendant’s Possession Upon His Arrest for Minor Non Violent Offenses to Which the Contents of the Bag Could Have Had No Connection

The First Department determined there were no exigent circumstances which justified the search of a plastic bag (closed container0 that was in defendant’s possession at the time of his arrest:

The police detained defendant in a subway station for violating Transit Authority regulations. Because a warrant check revealed that defendant had an active warrant, the police decided to arrest him rather than issue a summons. Defendant was holding a plastic bag in his hand, and put it on the ground next to him before being handcuffed. An officer picked up the bag, which felt heavy, and looked inside to check for weapons or contraband. Inside the bag was another plastic bag, which contained a canvas bag. The officer then noticed a strong odor of marijuana, opened the canvas bag, and found nearly a pound of marijuana.

The People failed to meet their burden of showing exigency. The officers did not testify that they feared for their safety, or that they were concerned that the bag contained evidence that defendant could destroy, and the circumstances did not suggest that any exigency required an immediate search. Defendant was being arrested for minor nonviolent offenses and was not suspected of any crimes, he was handcuffed and guarded by several officers, he was fully cooperative and voluntarily placed the bag on the ground, his demeanor and actions were not threatening, and there was no indication that he might try to grab or kick the bag, which was no longer in his possession. Furthermore, there was no indication that the bag might contain a weapon and, given the nature of the transit violations, there was no possibility that the bag could contain evidence to support those charges. People v Febres, 2014 NY Slip OP 04150, 1st Dept 6-10-14

 

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Where There Is Evidence, Other than or in Addition to a Chemical Test, of a Blood Alcohol Content, the Jury Can Be Instructed that It May Base Its Verdict on Its Own Finding Re: Blood Alcohol Content

The Court of Appeals determined defendant was not entitled to a jury instruction that a “blood alcohol content of less that .08 is prima facie evidence defendant was not intoxicated” on the basis of her expert's testimony that her blood alcohol content was below .08 at the time she was driving (her subsequent blood alcohol test result was .09).  However, the Court of Appeals explained the defendant could have requested a jury instruction which would allow the jury to find she was not intoxicated if the jury first made the finding her blood alcohol level was below .08:

Since the evidence of her BAC that defendant presented here was not determined by a chemical test but was contained in the opinion of a defense expert, that evidence did not have the “prima facie” effect specified by the statute and defendant was not entitled to the charge she sought.

…It should not be thought, however, that the BAC thresholds specified in Vehicle and Traffic Law § 1195 (2)(A) must be entirely omitted from a jury charge in a common law DWI case or in a driving while ability impaired (DWAI) case brought under Vehicle and Traffic Law § 1192 (1) (“No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol”). It is obvious from Vehicle and Traffic Law §§ 1192 (2) and 1195 (2) that the Legislature has made judgments about the significance of certain statistical thresholds — i.e., that a BAC of .08% or more justifies an inference of intoxication; that a BAC below .08% justifies an inference of non-intoxication; that a BAC above .07% justifies an inference of impairment; and that a BAC equal to or less than .05% justifies an inference that the driver was neither intoxicated nor impaired in her ability to drive. There is no reason why juries should remain unaware of these legislative judgments.

Thus, in this case Town Court should, if it had been requested to do so, have charged the jury in words or substance: If you find that there was less than .08 of one percent by weight of alcohol in defendant's blood while she was operating the motor vehicle, you may, but are not required to, find that she was not in an intoxicated condition. Similarly, in a DWAI case where the defendant proffers evidence other than chemical tests of a BAC at or below .05%, it would be proper to charge: If you find that there was .05 of one percent or less by weight of alcohol in the defendant's blood while she was operating a motor vehicle, you may, but are not required to, find that her ability to operate the motor vehicle was not impaired by the consumption of alcohol. And the People are entitled to a corresponding charge when they rely on evidence other than chemical tests to show that a defendant's BAC was above .08% in a DWI case, or above .07% in a DWAI case.  People v Fratangelo, 2014 NY Slip Op 04041, CtApp 6-5-14

 

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Suicide Notes Not Protected by Marital Privilege—Substance Had Been Revealed to Third Parties

The Second Department determined that suicide notes left by the defendant were not protected by the marital privilege:

“One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502 [b]; CPL 60.10)” … .. While a suicide note can be a communication made during marriage for the purpose of the privilege …, the spousal privilege falls “when the substance of a communication . . . is revealed to third parties” … . Here, the substance of the communication between the defendant and his wife of his intention to commit suicide through taking large quantities of Xanax was revealed by the defendant to Officer Johnstone, his neighbor, and the nurse who happened upon the scene of the accident. In addition, the defendant left the notes on the kitchen counter and directly addressed his children, as well as his wife, in one of the notes. Thus, the Supreme Court properly determined that the notes were not protected by the marital privilege … . People Jacob, 2014 NY Slip Op 03861, 2nd Dept 5-28-14

 

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Expert Testimony Should Not Have Been Precluded Based Upon the Timing of the Disclosure—Short Adjournment Would Have Eliminated Prejudice—New Trial Ordered

The Second Department determined Supreme Court should not have precluded expert testimony based upon the timing of the expert disclosure:

“CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party'”… .

The defendants did not establish that the plaintiffs willfully or intentionally violated a court directive regarding expert disclosure … . Moreover, any prejudice to the defendants from late disclosure would have been limited, inasmuch as the defendants’ own engineer was present when the plaintiffs’ engineer conducted his inspection (\… . A short adjournment of this nonjury trial could have eliminated prejudice entirely … . Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the defendants’ application for preclusion of the plaintiffs’ experts (see id.). Accordingly, a new trial is warranted. Arcamone-Makinano v Britton Prop Inc, 2014 NY Slip Op 03644, 2nd Dept 5-21-14

 

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Statement About Gang Affiliation Should Have Been Suppressed—Not Merely “Pedigree” Information

The Second Department determined that defendant’s statement about his gang affiliation should have been suppressed. The defendant had not yet been read his Miranda rights.  The People’s argument that the statement was simply part of so-called “pedigree” information (like “address” and “phone number”) was rejected.  The error was deemed harmless however.  People v Hiraeta, 2014 NY Slip Op 03698, 2nd Dept 5-21-14

 

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Codefendant’s Statement Was Admissible—the Fact that the Statement Implicated the Defendant in the Light of Other Trial Evidence Did Not Violate Defendant’s Right of Confrontation

The Third Department determined a co-defendant’s statement, which had been redacted to exclude references to the defendant, was admissible.  The defendant’s argument that the statement implicated him in the light of the trial evidence was rejected:

A defendant’s right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” …; however, no such violation occurs where, as here, the codefendant’s statement incriminates the defendant only in light of other evidence produced at trial … . Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant … . Accordingly, the statement was admissible, and defendant’s rights under the Confrontation Clause were not violated by the People’s arguments that drew inferences about his participation by linking the statement with other trial evidence … . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14

 

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People Did Not Meet Their Burden of Demonstrating the Legality of the Police Action—Seized Handgun, Identification and Statement Properly Suppressed

The Second Department determined the People did not meet their burden of demonstrating the legality of the police action at the suppression hearing.  The handgun recovered from the defendant’s backpack was properly suppressed:

Where a defendant moves to suppress evidence, the People bear the initial burden of establishing the legality of the police conduct in the first instance, while the defendant bears the ultimate burden of proving, by a preponderance of the evidence, that the challenged evidence should not be used against him or her … . Based on the record before it, the Supreme Court properly suppressed the handgun seized from the backpack in the defendant’s possession, since the People failed to meet their burden of demonstrating the legality of the police conduct. Although the police officers properly initiated a common-law inquiry to obtain explanatory information from a group of six men, which included the defendant, based upon information from an anonymous informant …, reasonable suspicion justifying an intrusive search of the backpack in the defendant’s possession never arose … . Accordingly, the police search of the backpack was improper, requiring suppression of the handgun recovered from the backpack. Additionally, suppression of identification evidence and a statement made by the defendant to law enforcement officials was also required, as such evidence was fruit of the poisonous tree … . People v Nichols, 2014 NY Slip Op 03541, 2nd Dept 5-14-14

 

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Defendant Was Convicted of Bribing Three Witnesses to Recant their Statements Identifying Defendant’s Brother as the Shooter in a Killing;

Evidence of the Murder of Another Witness Who Identified Defendant’s Brother as the Shooter, Evidence which Was Not Linked by Trial Evidence to the Defendant But which Was Likely to Raise Suspicion About the Defendant’s Involvement, Was Allowed in Defendant’s Bribery Trial to Explain the Subsequent Actions of the Three Witnesses Defendant Was Accused of Bribing

The Second Department, over a substantial dissent, determined defendant was not deprived of a fair trial by the introduction of evidence of a murder which was not tied to the defendant, but which may have raised serious questions about the defendant’s involvement in the minds of the jurors.  The defendant was accused of bribing three witnesses who had identified defendant’s brother as the shooter in a killing which  took place in a park. That shooting was witnessed by three teen-aged girls and a man named Gibson. The defendant met with all three girls and paid them money.  They all recanted their statements about defendant’s brother’s involvement in the park shooting. On the day before defendant’s brother’s trial, Gibson was shot and killed.  A man confessed to that shooting and the defendant was never linked to the Gibson killing. Evidence of the Gibson killing was allowed in evidence to demonstrate the state of mind of the three teen-aged girls who, after learning of Gibson’s killing, recanted their recantations and stood by their original statements identifying the defendant’s brother as the park shooter.  The court determined the evidence of the Gibson killing was not Molineux evidence because the jury was never told of any link between the Gibson killing and the defendant.  Therefore, the court reasoned, the Gibson killing was not a prior uncharged crime or bad act done by the defendant.  The court, however, seemed to use the analysis required under Molineux and found that the evidence of the Gibson killing was admissible to explain the girls’ actions and to explain why they and their families were relocated after the Gibson killing:

Evidence of uncharged crimes is generally excluded under the Molineux rule (People v Molineux, 168 NY 264) for policy reasons, because such evidence may induce the jury to base a finding of guilt on collateral matters, or to convict a defendant because of his or her past criminal history … . Nevertheless, evidence of prior uncharged crimes may be received if it is relevant to some issue other than the defendant’s criminal disposition … . The purposes for which uncharged crime evidence may properly be admitted include completing the narrative of the events charged in the indictment and providing necessary background information … . “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of the defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” … .

However, “[t]he Molineux rule was created to address a particular prejudice inherent to a particular type of proof: evidence of a defendant’s prior crimes and bad acts” … . That type of prejudice is not present in this case, because evidence that Gibson was murdered two days before he was scheduled to testify against Sykes did not constitute proof that the defendant committed an uncharged crime or bad act. * * *

Even if the evidence of Gibson’s death could arguably be viewed as suggesting that the defendant committed an uncharged crime, it was properly admitted to explain why the girls, having recanted their original statements identifying [defendant’s brother] as [the park] killer, admitted to the police that they had made false recantations, and adhered to their original statements. Indeed, two of the girls testified that Gibson’s murder, two days before the presentation of evidence in the [defendant’s brother’s] trial was to begin, frightened them. The impact of Gibson’s murder on the state of mind of these witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls’ conduct in coming forward to disavow the recorded statements … .   People v Harris, 2014 NY Slip Op 03532, 2nd Dept 5-14-14

 

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Family Court Should Not Have Denied Father’s Request for Son’s Mental Health Records Without an In Camera Review

The First Department determined Family Court should not have denied father’s request for his son’s mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child’s testimony, so the child’s credibility was the central issue:

Respondent father moved to subpoena the eldest child’s (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test … . The statute requires that the court weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery.” Here, the Family Court should have reviewed the child’s mental health records in camera to determine if the records are relevant to the central issue of the child’s credibility before making its disclosure ruling.

The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child’s testimony… . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14

 

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