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
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
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
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
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
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
The Second Department determined defendant’s motion to vacate his conviction should not have been denied without a hearing on the ground it was untimely. Defendant had raised substantive, supported claims that Brady and Rosario material had not been turned over to him at trial. The Second Department noted there is no time limit for bringing a motion to vacate a conviction pursuant to Criminal Procedure law section 440.10:
…[T]he defendant’s moving papers allege a ground constituting legal basis for the motion, i.e., that “[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom” (CPL 440.10[f]). The County Court erred in denying the motion on the ground that the defendant unduly delayed making the allegations of Brady and Rosario violations, as “[t]here is no time limit on the filing of CPL 440.10 motions” … . Further, the moving papers were sufficient to establish entitlement to a hearing … . People v Taylor, 2014 NY Slip Op 02964, 2nd Dept 4-30-14
The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers. People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14
Although deemed harmless error, the Second Department determined the show-up identification of the defendant was unduly suggestive. The defendant had already been arrested when he was pulled to a standing position in front of the victim for identification (for the second time). At that point there were no “exigent circumstances” to justify the procedure used:
While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure” … . “The People’s burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People’s burden'” … . However, “[t]he People also have the burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” … .
The People established that the showup “was conducted in close geographic and temporal proximity to the crime” … . However, they failed to demonstrate that the procedure was not unduly suggestive. The fact that a defendant is handcuffed and in the presence of police officers, standing alone, does not render a showup unduly suggestive …, even where “the victim had been told that the police had a suspect in custody” … . Here, however, the complainant was given two opportunities to identify the same man as the perpetrator. The second time, police officers pulled the defendant into a standing position and escorted him to where the complainant was standing. At that juncture, the defendant was under arrest and Officer Fallace acknowledged that “[t]here was no rush at that point.” Therefore, there were no exigent circumstances justifying the procedures employed. The above-described circumstances, when “viewed cumulatively,” establish that “the showup identification was unduly suggestive” … . Further, there was no hearing or finding on the question of whether the complainant’s in-court identification had an independent source … . People v Ward, 2014 NY Slip Op 02809, 2nd Dept 4-23-14
The Second Departent reversed defendant’s conviction and dismissed the indictment, finding that the initial approach of defendant in his vehicle by Officer Ranolde was not justified:
In People v De Bour (40 NY2d 210), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity … . The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective credible reason, not necessarily indicative of criminality …. The second level, known as the “common-law right of inquiry,” requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion … . The third level under DeBour permits a seizure, meaning that a police officer may forcibly stop and detain an individual. Such a seizure, however, is not permitted unless there is a “reasonable suspicion” that an individual is committing, has committed, or is about to commit a crime … . Finally, the fourth level under De Bour authorizes an arrest based on probable cause to believe that a person has committed a crime … .
“Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” …. “To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” … . The defendant’s later conduct “cannot validate an encounter that was not justified at its inception” … .
Here, that branch of the defendant’s omnibus motion which was to suppress the physical evidence seized should have been granted, as Ranolde lacked an objective, credible reason for approaching the defendant’s car and shining his flashlight into the car … . At the hearing, Ranolde failed to articulate any reason for approaching the defendant’s car other than that the car was parked in the early morning in an area where cars usually were not parked, and that the defendant may have moved something from the dashboard and thrown it on the floor of his car. Neither reason was a sufficient basis for the officers to have approached the defendant’s vehicle and requested information … .In any event, Ranolde’s testimony did not support a finding that he had a reasonable suspicion that the defendant was committing, had committed, or was about to commit a crime … . Indeed, there was nothing to indicate that the defendant had violated any Vehicle and Traffic Law provision … . Additionally, Ranolde admitted that, after he initiated his inquiry, he looked into the defendant’s car using a flashlight and noticed nothing illegal or out of the ordinary. The defendant’s removal of something from the dashboard and his wearing of gloves were innocuous, and not indicative of criminality … People v Laviscount, 2014 NY Slip Op 02798, 2nd Dept 4-23-14
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