You are here: / Evidence
, ,

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

 

, ,

Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted

In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:

In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to “tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” … . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff’s medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court’s in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion … .

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during “[t]rial preparation” (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts’ identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation …, the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor … . Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion … . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions … . For these reasons, we will not consider the incompetent affidavit of defendants’ medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14

 

,

No Sanction for Automatic Destruction of Video Recordings of Accident Scene after 21 Days—Counsels’ Original Request for Video Recording at the Time of the Accident Was Complied With—Counsel Subsequently Asked for Six Hours of Recording Prior to the Accident—By the Time of that Request the Videotape Had Been Automatically Destroyed

The First Department, over a dissent, determined Supreme Court properly denied plaintiff’s motion for sanctions based upon allegations of spoliation of evidence.  In response to plaintiff’s counsel’s initial request, 84 seconds of videotape depicting plaintiff’s slip and fall were preserved. Subsequently plaintiff’s attorney requested video of the six hours preceding the accident.  By that time, however, the tapes had been automatically erased:

On a motion for spoliation sanctions, the moving party must establish that (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a “culpable state of mind,” which may include ordinary negligence; and (3) the destroyed evidence was relevant to the moving party’s claim or defense … . In deciding whether to impose sanctions, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness … . The burden is on the party requesting sanctions to make the requisite showing … . * * *

While it is true that a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and “should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes” … , this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them. That obligation would impose an unreasonable burden on property owners and lessees.   Duluc v AC & L Food Corp, 2014 NY Slip Op 05243, 1st Dept 7-10-14

 

, ,

Jury’s Finding a Party Was at Fault But Such Fault Was Not the Proximate Cause of the Accident Should Not Have Been Set Aside as Inconsistent and Against the Weight of the Evidence

The Second Department determined plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence should not have been granted.  Plaintiff was injured when he dove to catch a ball in an area which had poles sticking up out of the ground.  The plaintiff, who was 10 years old at the time, knew the poles were there.  The jury found that the property owner was at fault but that such fault was not the proximate cause of the accident.  The Second Department held that the verdict was not inconsistent and against the weight of the evidence:

“A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . ” [W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … . Here, a fair interpretation of the evidence supports the conclusion that the infant plaintiff’s own negligence was the sole proximate cause of his accident … . Henry v Town of Hempstead, 2014 NY Slip Op 05157, 2nd Dept 7-9-14

 

,

Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented a Jury Question—Only If the Jury Determines the Evidence Was Relevant Can the Jury Consider the Adverse Inference Charge for Spoliation of Evidence

The Second Department determined there was a question of fact whether the failure to preserve a broken jar, the cause of plaintiff’s injury, warranted an adverse inference charge.  Whether the jar was relevant to the plaintiff’s case was a question raised by conflicting expert opinions. The question of fact must first be resolved by the jury before the adverse inference charge could be applied by the jury:

While the lesser sanction of an adverse inference may be appropriate for spoliation of the subject jar …, under the circumstances of this case, an issue of fact exists as to whether spoliation of relevant evidence occurred. The sanction of an adverse inference for spoliation of evidence is not warranted when the evidence destroyed is not relevant to the ultimate issues to be determined in the case … . …[T]he plaintiff submitted an expert affidavit averring that she could have determined how long the jar had been broken by analyzing the mold contained in the jar, and the defendant submitted an expert affidavit disputing that such a conclusion could have been reached. If the opinion of the defendant’s expert were credited, then an adverse inference would not be warranted, because the lost evidence would not have been relevant to the plaintiff’s case … . Thus, this issue of fact should be placed before the jury, along with the inferences to be drawn therefrom … . The jury should be instructed that, if it credits the opinion of the defendant’s expert that no conclusion could have been reached with reasonable certainty regarding how long the jar had been broken by analyzing the mold contained in the jar, then no adverse inference should be drawn against the defendant. On the other hand, the jury should be advised that, if it credits the opinion of the plaintiff’s expert that she could have determined how long the jar had been broken by analyzing the mold inside, then it would be permitted to draw an adverse inference against the defendant … . Pennachio v Costco Wholesale Corp, 2014 NY Slip Op 05165, 2nd Dept 7-9-14

 

,

Defense of Lack of Personal Jurisdiction Is Not Waived by Making a Motion to Dismiss on that Ground/Process Server’s Testimony About Attempts to Locate Defendant Lacked Credibility

The Second Department determined the defendant did not waive the defense of lack of personal jurisdiction by submitting a motion to dismiss on that ground.  The court further determined that Supreme Court properly dismissed the complaint based upon the process server’s lack of credibility about his attempts to locate the defendant:

A defendant may waive the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss … . A defendant may also waive lack of personal jurisdiction by entering into a stipulation of settlement of the action … . Additionally, a defendant may waive lack of personal jurisdiction by making payments pursuant to a judgment or wage garnishment for a substantial period of time …  However, where the defendant’s only participation in the action is the submission of a motion to vacate a default judgment for lack of personal jurisdiction, the defense of lack of personal jurisdiction is not waived … . * * *

Service of process pursuant to the affix-and-mail provisions of CPLR 308(4) is only permitted where service by personal delivery under CPLR 308(1) or by delivery to a person of suitable age and discretion and a subsequent mailing pursuant to CPLR 308(2) “cannot be made with due diligence” (CPLR 308[4]). ” For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment'” … . The process server’s testimony that he inquired as to the defendant’s whereabouts from a neighbor was not credible, since he was unable to provide any description of the neighbor—even a description of the neighbor’s sex. The affidavit of service referred to the “person spoken to,” but provided no further description, although spaces were provided to insert the person’s sex, skin color, hair color, approximate age, height, and weight.

The determination of the hearing court as to the credibility of the process server should not be disturbed since the hearing court had the advantage of seeing and listening to that witness. Cadlerock Joint Venture LP v Kierstedt, 2014 NY Slip Op 05147, 2nd Dept 7-9-14

 

,

Affidavits, Deposition Testimony, and Letters Are Not Considered “Documentary Evidence” Within the Meaning of CPLR 3211(a)(1)

The Second Department described the types of documents which will not support a motion to dismiss pursuant to CPLR 3211(a)(1):

“A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . “Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)”… . Contrary to the defendant’s contention, an affidavit by a … project manager did not constitute documentary evidence with the intendment of CPLR 3211(a)(1) … . JA Lee Elec Inc v City of New York, 2014 NY Slip Op 05159, 2nd Dept 7-9-14

 

, , ,

Criteria for Discovery from Non-Party Explained/Criteria for Discovery of Trade Secrets Explained

The Second Department explained the criteria for discovery demanded of a non-party [Morgan Stanley] and described the relevant considerations when discovery is opposed on the ground that the material requested constitutes trade secrets.  The court concluded Morgan Stanley had demonstrated certain of the discovery requests related to protected trade secrets:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the “circumstances or reasons” requiring disclosure. Pursuant to the Court of Appeals' recent decision in Matter of Kapon v Koch ( ____ NY3d ____, 2014 NY Slip Op 02327 [2014]), disclosure from a nonparty requires no more than a showing that the requested information is “material and necessary,” i.e. relevant to the prosecution or defense of an action (id., *1). However, “the subpoenaing party must first sufficiently state the circumstances or reasons' underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is utterly irrelevant' to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” (id.). Should the nonparty witness meet this burden, “the subpoenaing party must then establish that the discovery sought is material and necessary' to the prosecution or defense of an action, i.e., that it is relevant” (id.). * * *

Notwithstanding New York's policy of liberal discovery (see id., * 4-5), a party seeking disclosure of trade secrets must show that such information is “indispensable to the ascertainment of truth and cannot be acquired in any other way” … . A witness who objects to disclosure on the ground that the requested information constitutes a trade secret bears only a minimal initial burden of demonstrating the existence of a trade secret … . Contrary to [plaintiff's] contention, Morgan Stanley met its minimal initial burden of showing that the documents requested in paragraphs 11 through 19 in the section of the subpoena duces tecum entitled “Requests for Production” contained trade secrets … . Thus, the burden shifted to [plaintiff] to demonstrate that the information contained in those documents was indispensable to the ascertainment of truth, and could not be acquired in any other way … . Ferolito v Arizona Beverages USA LLC, 2014 NY Slip Op 05153, 2nd Dept 7-9-14

 

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