You are here: / Evidence
,

Witness’s Hearsay Statement Should Have Been Admitted as a Statement Against Penal Interest/No Need for Declarant to Be Aware of Specific Violation of Law

In a full-fledged opinion by Justice Acosta, over a dissent, the First Department determined a (hearsay) statement by a witness indicating she (not the defendant) was driving when the property-damage accident occurred should have been admitted as a statement against penal interest.  The central question was whether the declarant was aware she was admitting to a violation of law when the statement was made:

The decision whether to admit a declaration against penal interest as an exception to the hearsay rule requires, among other factors, that the declarant be aware at the time of its making that the statement was contrary to his or her penal interest. The issue in this case is whether a statement in which an individual admits to conduct constituting an offense is a statement against penal interest, where the individual believes that the conduct may be illegal but does not know whether it is or not. It arose in the context of a DWI case where the defense was that defendant, who was intoxicated, was not the driver of the car, but a passenger. Specifically, the driver, a 19-year-old woman with no prior criminal history and only a learner’s permit, who met defendant approximately eight hours earlier, made a statement to a defense investigator indicating that she, and not defendant, was driving defendant’s car at the time it collided with a parked car, but refused to testify at trial on Fifth Amendment grounds. We find that the statement was a declaration against penal interest notwithstanding that some of the witness’s apprehension in making the statement was based on her fear that her parents would learn of her involvement with defendant or that, as the court noted, her exposure to criminal liability was relatively minor. The court therefore erred in keeping the statement out. * * *

…[W]e hold that regardless of whether [the witness] was specifically aware that the conduct she admitted constituted a violation of Vehicle and Traffic Law § 600, which prohibits an operator of a motor vehicle who causes property damage from leaving the scene, or whether she was specifically aware that she faced a penalty of up to 15 days’ imprisonment and a fine for that offense, the evidence established that her statement satisfied this hearsay exception. Her expressions, at the time of or immediately after her statement, of apprehension that she could get in trouble for her conduct, including repeated inquiries about consulting with a lawyer, sufficed to satisfy the requirement that “the declarant must be aware at the time of its making that the statement was contrary to his [or her] penal interest”… . People v Soto, 2013 NY Slip Op 08217, 1st Dept 12-10-13

 

 

,

“Evidentiary Fact” Resolved In Favor of Defendant by a Jury In the First Trial May Not Be Contradicted by Evidence Presented in the Second Trial

In a full-fledged opinion by Judge Smith, over a dissent, the Court of Appeals determined the doctrine of collateral estoppel prohibited the introduction of evidence a firearm was displayed in the course of a robbery.  In the first trial, the defendant was acquitted of First Degree Robbery (which requires display of a firearm) and convicted of Second Degree Robbery (display of a weapon is not an element of Second Degree Robbery). The conviction was reversed on appeal.  In the second trial (for Second Degree Robbery only), the People presented evidence a weapon was displayed.  The court found the People were collaterally estopped from presenting evidence of the display of a weapon in the second trial:

This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that “the doctrine of collateral estoppel can be applied to issues of ‘evidentiary’ fact.”  As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered “ultimate” facts; other facts are only “evidentiary” (id. at 480 n 1).  Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant’s favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury’s finding.  People v O’Toole, 233, CtApp 12-10-13

 

, , ,

Workers’ Compensation Board’s Finding Re: Extent of Disability Should Not Be Given Collateral-Estoppel Effect in Related Negligence Action

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that collateral-estoppel effect should not be given to a finding by the Workers’ Compensation Board in a related negligence action.  Plaintiff, a delivery person, had been struck by a piece of plywood which fell from a building under construction in 2003.  The Workers’ Compensation Board found that plaintiff’s disability from the accident ceased as of January, 2006. In the related negligence action, the defendant sought to limit plaintiff’s proof of disability to the period prior to January, 2006.  The court held “that there is no identity of issue and that collateral estoppel therefore should not be applied:”

…[D]efendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action.  We have observed that the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” … .  The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages … .  We have observed that the term “disability,” as used in the Workers’ Compensation Law, “generally refers to inability to work” … .  In addition, the Board uses the term “disability” in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury … .  The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment.

By contrast, a negligence action is much broader in scope.  It is intended to make an injured party whole for the enduring consequences of his or her injury — including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime.  Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical. Auqui v Seven Thirty One Limited Partnership, 212, CtApp 12-10-13

 

,

Hearsay Evidence from Confidential Informant Insufficiently Detailed to Allow Independent Assessment of Credibility and Reliability

The Third Department annulled certain charges against the petitioner because the hearsay evidence was inadequate:

Hearsay in the form of confidential information may provide substantial evidence to support a determination of guilt when it is sufficiently detailed and probative to permit the Hearing Officer to make an independent assessment of its credibility and reliability … .Here, however, the correction officer’s description of the sources’ statements did not indicate that they had been threatened or had personal knowledge of any threats, nor did the officer provide details regarding the basis of their knowledge or whether they personally witnessed any conduct or statements by petitioner.  The testimony was insufficiently detailed and specific to enable the Hearing Officer to independently assess the credibility or reliability of the confidential information, and it appears that he impermissibly relied on the correction officer’s assessment that the sources were truthful… .  Matter of Rosa v Fischer, 515981, 3rd Dept 12-5-13

 

,

Hearsay Insufficient to Support Revocation of Substance Abuse Counselor Credential

The Third Department determined the hearsay evidence used to justify the revocation of petitioner’s credential as a Credentialed Alcoholism and Substance Abuse Counselor (CASAC) was insufficient:

Substantial evidence has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .  In this regard, an administrative determination may be based entirely upon hearsay evidence …– provided such evidence is “sufficiently relevant and probative” … or “sufficiently reliable” … and is not otherwise “seriously controverted” … . * * *

Although we have no doubt that the investigator conducted thorough interviews with many of those involved and accurately related – in both his report and his corresponding testimony – the specific information gleaned therefrom, we cannot say – given the particular facts of this case – that the hearsay proof adduced at the hearing was “the kind of evidence on which responsible persons are accustomed to rely in serious affairs”… .  Matter of Doctor v NYS Office of Alcoholism and Substance Abuse Services…, 516209, 3rd Dept 12-5-13

 

,

Evidence Relevant to a Reason to Fabricate is Never Collateral

The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed.  Evidence of a witness’ reason to fabricate should not have been excluded as collateral:

…County Court improperly denied his motion requesting permission to question Corsi and Beebe about prior notices of discipline, grievances filed by defendant and defendant’s pending federal lawsuit … .  The court concluded that the issues were collateral and would be precluded unless the door were opened by a witness’s testimony reflecting bias or hostility toward defendant.  While “trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters,” “extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground”… .  People v Hughes, 105838, 3rd Dept 11-27-13

 

, ,

Double Hearsay in Presentence Report Did Not Render the Information Unreliable Re: a SORA Sex Offender Proceeding

The Second Department determined that the presence of double hearsay in a presentence report did not render the information unreliable such that it could not be considered in a SORA proceeding to determine the level of a sex offender:

“In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . . or any other reliable source, including reliable hearsay” … . Here, as the People correctly point out, the presentence report prepared by the Department of Probation, the felony complaint sworn to and signed by the arresting officer, and the arrest report constituted “reliable hearsay” (Correction Law § 168-n[3]) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of the rape … . Contrary to the defendant’s contention, the fact that certain statements contained in these documents constituted “double hearsay” did not necessarily render them unreliable for purposes of a SORA hearing … . Moreover, even though certain proof may not have been admissible at the criminal trial, the Legislature did not limit the types of materials admissible in a SORA proceeding to what would be admissible at a civil or criminal trial… . People v Dash, 2013 NY Slip Op 07948, 2nd Dept 11-27-13

 

,

Error to Deny Missing Witness Jury Instruction on Ground Such Testimony Would Be Cumulative—Only Testimony of a Party’s Own Witnesses Can Be Deemed Cumulative, Not, as Here, the Testimony of the Opposing Party’s Witnesses

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court erred in refusing to grant the plaintiff’s request for a missing witness jury instruction.  Plaintiff claimed to have been injured in a motor vehicle accident. Questions were raised about whether plaintiff’s injuries were caused by the accident.  The defense failed to call any of the doctors hired by the defense to examine plaintiff.  The plaintiff’s request for the missing witness charge was denied on the ground the defense-doctors’ testimony would be merely cumulative.  The Court of Appeals ruled that testimony can be deemed cumulative only with respect to a party’s own witnesses, not with respect to witnesses under the opposing party’s control:

The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the [3rd] Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (id. at 92), noting that to hold “otherwise would lead to an anomalous result.  Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiff’s assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge” (id.).  Accordingly, our holding is that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.

In short, a witness’s testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’s testimony.  Because the record indicates that the latter was Supreme Court’s rationale in this case, Supreme Court erred in denying plaintiff’s request for a missing witness charge. De Vito v Feliciano, 195, CtApp 11-26-13

 

, ,

“Something” Stuck in Victim’s Back Is Legally Sufficient Evidence of Displayed Firearm

In a full-fledged opinion by Judge Read (over a dissent), the Court of Appeals affirmed the first-degree robbery convictions of two co-defendants.  The Court determined evidence of “something” stuck into the victim’s back was legally sufficient evidence of a displayed firearm, and a show-up identification procedure (two hours after and five miles away from the robbery) was correctly found to be reasonable by the lower courts (generally an unreviewable mixed question of law and fact for the Court of Appeals).  People v Howard…, 189, 190, CtApp 11-26-13

 

,

A Factually Inconsistent Verdict Did Not Render the Evidence Insufficient to Support the Conviction

In a full-fledged opinion by Judge Lippman (over a dissent), the Court of Appeals determined a factual inconsistency in a jury verdict acquitting a defendant of one count and convicting him of another did not render the record evidence insufficient to support the conviction.  The defendant was charged with insurance fraud and arson.  The prosecution’s theory was the defendant burned a building down to recover the insurance proceeds.  The jury convicted the defendant of insurance fraud and acquitted him of arson.  In explaining the difference between a factually inconsistent verdict and a verdict not supported by legally sufficient evidence, the Court of Appeals wrote:

A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count … .  Factual inconsistency “which can be attributed to mistake, confusion, compromise or mercy – does not provide a reviewing court with the power to overturn a verdict” … .  If a jury renders a factually inconsistent verdict, the trial court “can point out the apparent inconsistency to the jurors, issue further appropriate instructions and ask them to continue deliberations. But a failure to take such action would not be an abuse of discretion as a matter of law” … .

In contrast, a conviction not supported by legally sufficient evidence should be overturned.  A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … .

Factual inconsistency and legal insufficiency are analytically distinct.  One may inform the other – i.e., in some instances, a reviewing court may consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence … . But it does not follow that such factual inconsistency in the verdict renders the record evidence legally insufficient to support the conviction.  Put another way, an acquittal is not a preclusive finding of any fact, in the same trial, that could have underlain the jury’s determination.

Therefore, even assuming, as submitted by the defendant, that the jury’s verdict in this case presented a factual inconsistency, it does not affect the propriety of his conviction. People v Abraham, 192, CtApp 11-26-13

 

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