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Trial Court Should Not Have Precluded Expert Testimony Based Upon Failure to Make Timely Disclosures— Rather, the Trial Should Have Been Adjourned

Noting that the appellate court has the power to make its own discretionary determinations about discovery and CPLR article 31 matters, even in the absence of the abuse of discretion by the trial judge, the Fourth Department, over a two justice dissent, found that the trial judge should not have granted the defendants’ motion to preclude testimony by plaintiffs’ experts based upon the failure to make timely disclosures:

“[W]e have repeatedly recognized that ‘[a] trial court has broad discretion in supervising the discovery process, and its determinations will not be disturbed absent an abuse of that discretion’ . . . We have also repeatedly noted, however, ‘that, where discretionary determinations concerning discovery and CPLR article 31 are at issue, [we] “[are] vested with the same power and discretion as [Supreme Court, and thus we] may also substitute [our] own discretion even in the absence of abuse” ’ ” … . Under the circumstances of this case, we substitute our discretion for that of Supreme Court, and we conclude that the court should have adjourned the trial rather than granting defendants’ motion, thereby precluding the subject expert testimony and striking the subject expert disclosures. Smalley … v Harley-Davidson Motor Company Inc…, 372, 4th Dept 3-28-14

 

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Court Review of Sufficiency of Evidence Before a Grand Jury Explained

The Fourth Department determined the circumstantial evidence of constructive possession of a package containing drugs was legally sufficient to support the indictment.  The court explained how the sufficiency of evidence before a grand jury is analyzed:

On a motion to dismiss the indictment pursuant to CPL 210.20 (1) (b), “the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause” … . The “reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” … . In the context of grand jury proceedings, “legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, we must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the [g]rand [j]ury could rationally have drawn the guilty inference’ ” … .  People v Forsythe, 359, 4th Dept 3-28-14

 

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Victim’s Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made

The Fourth Department determined the victim’s statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim’s treatment and her statements.  The court determined that the stress of the situation had not diminished at the time the statements were made:

It is well settled that “[t]he admissibility of an excited utterance is entrusted in the first instance to the trial court. In making that determination, the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his [or her] reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection” … . Notably, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

There is no dispute that there was a period of time between the victim’s treatment by the EMT and her statements. During that period of time, however, the victim’s child and niece were still in the apartment with defendant, the man who had kidnapped the victim and beaten her with a loaded gun. We thus conclude that “ ‘at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still . . . her reflective faculties’ . . . , including both the physical and emotional stress of the [kidnapping and] beating earlier administered by defendant[,] . . . the stress of being confined in [an apartment and car] with defendant following the attack,” and the stress of having two small children still in harm’s way… . People v Miller, 191, 4th Dept 3-28-14

 

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Defendant’s Flight in His Vehicle, Nearly Striking an Officer, Severed Any Connection with the Initial Detention and Evidence Discarded from the Vehicle Was Properly Seized

The Fourth Department determined an anonymous tip coupled with the police officer’s observations justified the officer’s request that defendant get out of his vehicle—a level three encounter.  Defendant’s subsequent flight in the vehicle, nearly striking an officer, severed any connection between the initial detention and the seizure of evidence discarded from the vehicle:

A police officer testified at the suppression hearing that he received an anonymous tip regarding drug activity taking place at a certain location. Upon proceeding to the location, the officer found defendant sitting in a parked vehicle, which was similar to the description of the vehicle given by the anonymous caller. As the officer spoke with defendant, he noticed what appeared to be a pile of cigar tobacco on the ground outside the vehicle, and the officer knew, based on his training and experience, that emptying a cigar was a common method of preparing a marihuana cigar, or a “blunt.” When the officer asked defendant to step out of the vehicle, defendant instead started the vehicle and sped off, almost striking another officer who was approaching the vehicle on foot. During the ensuing chase, defendant discarded a bag out of the passenger-side window. The bag was later recovered by the police and was found to contain a loaded weapon and marihuana.

The officer’s initial approach of defendant and request for identification was a permissible level one encounter under People v De Bour … . Although the officer’s request that defendant exit the parked vehicle elevated the situation to a level three encounter under De Bour …, we conclude that the officer had reasonable suspicion that defendant was engaged in illegal activity based on the anonymous tip and the officer’s observation of drug activity, i.e., the pile of cigar tobacco on the ground … . In any event, even assuming, arguendo, that defendant was unlawfully detained, we conclude that his criminal conduct in speeding off and almost striking the second officer—conduct for which defendant was convicted of reckless endangerment in the second degree—“severed any causal connection between the unlawful detention and the subsequently-acquired evidence” … . People v Wofford, 252, 4th Dept 3-28-14

 

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Tenant Unable to Raise Question of Fact About Whether Dampness and Mold Caused Her Physical Ailments/The Proof of General and Specific Causation Fell Short of Meeting the Frye Criteria for Scientific Tests Deemed “Generally Acceptable as Reliable” in the Scientific Community

In a full-fledged opinion by Judge Read, the Court of Appeals determined plaintiff was unable to raise a triable issue of fact about whether her physical injuries were caused by indoor exposure to dampness and mold.  The court did an extensive analysis of the expert evidence and determined, with respect to the Frye [293 F 1013] criteria, although “links” between plaintiff’s injuries and dampness and mold had been established,  the cause and effect relationship required under the Frye criteria had not been established:

In Frye v United States (293 F 1013, 1014 [DC Cir 1923]), the court rejected the testimony of a defense expert regarding the results of a “systolic blood pressure deception test” — an early type of polygraph test — because it had not yet “gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” While the Frye test turns on acceptance by the relevant scientific community, we have never insisted that the particular procedure be “‘unanimously indorsed'” by scientists rather than “‘generally acceptable as reliable'” … . * * *

Thus, studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff’s expert]  attributes to [plaintiff’s] exposure to mold (bronchialasthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects. But such studies necessarily furnish “some support” for causation since there can be no causation without an association (although, as explained, there can be an association without causation). For these reasons, the Appellate Division was incorrect when it ruled that the Frye standard was satisfied in this case because [plaintiff’s expert’s] opinions as to general causation find “some support” in the record. In sum, then, [plaintiff] has not raised a triable issue of fact with respect to general causation.

Additionally, even assuming that [plaintiff] demonstrated general causation, she did not show the necessary specific causation. Cornell v 360 West 51st Street Realty, LLC, 16, CtApp 3-27-14

 

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Probable Cause to Search Vehicle for a Weapon After Defendant’s Arrest Provided by Identified Citizen Informant

The Fourth Department determined a weapon was properly seized from a vehicle after defendant’s valid arrest based on information from an identified citizen informant:

It is well settled that, “ ‘where police have validly arrested an occupant of an automobile, and they have reason to believe that [it] may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted, they may contemporaneously search the passenger compartment, including any containers found therein’ ” … .Here, as noted, there is no dispute that defendant was lawfully stopped and arrested. Rather, the issue before us is whether the police lawfully searched the vehicle defendant was driving. Even assuming, without deciding, that the police did not conduct a lawful inventory search, we conclude that a search was authorized because the police had probable cause to believe that a gun was inside the vehicle. Probable cause arose from the information provided to the police by the identified citizen informant, who stated that she observed one of the occupants of defendant’s vehicle in possession of what appeared to be a handgun used in the abduction of her boyfriend. “An identified citizen informant is presumed to be personally reliable” …  and, here, the informant had a sufficient basis of knowledge inasmuch as she personally observed the weapon in question… . People v Holmes, 95, 4th Dept 3-21-14

 

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Police Did Not Have Founded Suspicion of Criminal Activity When Path of Parked Car Was Blocked by Police Vehicle/Suppression of Seized Drugs Should Have Been Granted

The Second Department determined defendant’s suppression motion should have been granted.  After seeing a man approach the window of a parked car, but without seeing what was exchanged, the police blocked the parked car with the police vehicle, approached and ultimately arrested defendant.  The Second Department determined blocking the path of the parked car was a “stop” and the police did not have a “founded suspicion” of criminal activity at that point:

Although the detective who stopped the defendant’s car was trained in identifying narcotics transactions and was aware of numerous drug transactions in the neighborhood, including some involving car deliveries of drugs, he did not see what the defendant and the pedestrian exchanged, could not see if one of the men gave the other something in return for something else, and did not see money pass between the two men …. Moreover, the detective saw only one exchange … , did not describe any furtive conduct on the part of the two men …, or, indeed, any other conduct that would give rise to a reasonable suspicion that he was observing a drug transaction …. The detective’s observations supported only a “founded suspicion that criminal activity [was] afoot” …, which is insufficient to justify the stop of the defendant’s car … . Consequently, that branch of the defendant’s omnibus motion which was to suppress the crack cocaine must be granted. People v Loper 2014 NY Slip Opinion 01771, 2nd Dept 3-19-14

 

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Child’s Out-of-Court Statements Corroborated by Child Abuse Expert/Hearsay Provided Adequate Basis for Finding of Abuse

The Second Department determined Family Court properly ruled that a child’s out-of-court statements were corroborated by a child abuse expert:

A child’s prior out-of-court statements may provide the basis for a finding of abuse, “provided that these hearsay statements are corroborated, so as to ensure their reliability” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). Validation testimony from an expert that the child’s psychological and behavioral characteristics lead the expert to conclude that the child was sexually abused may supply the corroboration of the child’s out-of-court statements necessary to make out a prima facie case of sexual abuse … . However, as with any expert opinion, the validation testimony must meet a threshold of reliability … . “The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated” … . The Family Court’s credibility findings must be accorded considerable deference on appeal … .Contrary to the father’s contention, the record supports the Family Court’s determination that the testimony of the petitioner’s child sexual abuse expert sufficiently corroborated Alexis S.’s out-of-court disclosures so as to establish a prima facie case of sexual abuse against the father… . Matter of Alexis S 2014 NY Slip Op 01759, 2nd Dept 3-19-14

 

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Hearsay in Medical Records Should Have Been Redacted/Not Relevant to Diagnosis and Not Clearly Attributable to Plaintiff as an Admission

Although the error was deemed harmless, the First Department determined hearsay statements should have been redacted from the plaintiff’s medical records.  The plaintiff alleged the police had pushed him over a fence, causing injury.  The defendants alleged plaintiff jumped.  The medical records included references to the plaintiff’s “jumping.” The jury found for the defendants.  The court explained how hearsay in a medical report should be handled:

Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries … . Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry … . The challenged entries were neither germane to treatment or diagnosis, nor were they admissions.

There was simply no evidence supporting defendants’ position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony … . Defendants’ only expert, a biomechanical engineer and accident reconstruction expert, opined that plaintiff’s injuries were consistent with a jump from a height and not a push to a fall. He did not give any opinion on issues relating to treatment or diagnosis. This is not a case where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation … .

The particular challenged entries cannot be characterized as admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that “patient” is the source of the information, the particular entry on that record, “he jumped off the fence,” is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form identifies “PO” or the police officer as the source of the information that plaintiff “jumped off a fence.” No other evidence in the record identifies plaintiff as being the source of this information. Nor is there any evidence connecting plaintiff to the 1/21/97 entry in the Progress Record that “s/p fell from a fence after being chased by police officers” or the 1/23/97 entry “fall from 2 storeys [sic]” to make them admissible as admissions by him. These entries should have been redacted from the medical records received in evidence.  Benavides v City of New York 2014 NY Slip Op 01682, 1st Dept 3-18-14

 

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Delay In Retaining Expert Did Not Warrant Preclusion of Expert’s Testimony

The Second Department determined Supreme Court should not have precluded plaintiff’s expert from testifying based upon the timing of the retaining of the expert and the serving of his expert information.  There was no evidence the delay was intentional or willful,  and no showing of prejudice to the opposing party:

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” … . Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties … . Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial … . Burbige v Siben & Ferber, 2014 NY Slip Op 01426, 2nd Dept 3-5-14

 

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