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Child Properly Found to Be a Vulnerable Witness and Properly Allowed to Testify Outside the Presence of the Defendant in a Sexual -Offense Trial

In a full-fledged opinion by Justice Hinds-Radix, the Second Department determined the seven-year-old witness (who was the alleged victim of sexual offenses by the defendant) was properly declared a vulnerable witness pursuant to CPL 65.20 and was properly allowed to testify outside the presence of the defendant over closed circuit television.

…[W]e find that the Supreme Court properly declared the child to be a vulnerable witness. Since the child was seven years old at the time of the trial, she was “particularly young” …. Further, the defendant occupied a position of authority, since he was the child’s great uncle by marriage, the child regarded him as a family member …, he was responsible for the care of the child at the time the crime occurred, and he had frequent contact with her …. Thus, two of the factors set forth in CPL 65.20(10) were established by clear and convincing evidence … . It is also clear from the record that the emotional trauma the child experienced when she attempted to testify in open court about the crime substantially impaired her ability to communicate with the jury. Under all of the circumstances, the Supreme Court’s determination that the child was a vulnerable witness is supported by clear and convincing evidence in the record … .

Furthermore, the child was properly permitted to testify outside of the physical presence of the defendant. The Supreme Court’s observations of the child when she was questioned in the courtroom, and the hearing testimony of the social worker, provided clear and convincing evidence that the cause of the child’s severe emotional upset was the defendant’s presence in the room …. Accordingly, the record supports the requisite specific finding that placing the defendant and the child in the same room during the testimony of the child would contribute to the likelihood that the child would suffer “severe mental or emotional harm” (CPL 65.20[11]).  People v Beltran, 2013 NY Slip Op 05638, 2nd Dept 8-14-13

 

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“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection—Treating Psychiatrist Not Called by Facility

In a full-fledged opinion by Justice Angiolillo, the Second Department determined the “missing witness rule” was properly applied in a civil, bench-trial proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. The psychiatric center which brought the proceeding did not call the treating psychiatrist as a witness and relied exclusively upon the testimony of a psychiatrist who had reviewed the records. The trial court determined the failure to call the treating psychiatrist gave rise to an inference adverse to the position of the psychiatric center and, under the facts which indicated there may have been disagreement with the reviewing psychiatrist’s findings, the dismissal of the psychiatric center’s petition was warranted.  In explaining the relevant procedures and the applicability of the “missing witness rule,” the Second Department wrote:

The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c][4]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][4][ii]).

First, the patient’s treating physician must determine that the treatment is in the patient’s best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][4][ii][a]).

Second, the clinical director must appoint a physician to review the patient’s record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient’s best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][4][ii][b][1]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient’s capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][4][ii][b][2]).

Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient’s best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient’s objections must be honored (see 14 NYCRR 527.8[c][4][ii][b][3]). * * *

“A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party” … . Where one or more of these elements is absent, the movant is not entitled to the charge … .Moreover, the missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness … .The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” … Matter of Adam K, 2013 NY Slip Op 05631, 2nd Dept 8-14-13

 

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Erroneous Admission of Hearsay and Expert Testimony Re: ANSI Standards Required Reversal of Million Dollar Verdict in Slip and Fall Case

In reversing a million dollar verdict in a slip and fall case, the Second Department determined that a hearsay statement (“oh my God, someone else fell”) and expert testimony about the floor mats not complying with American National Standards Institute [ANSI] standards should not have been admitted:

…[T]he security guard’s statement did not qualify as a present sense impression or an excited utterance. The statement was not admissible as a present sense impression because it is clear that the statement was not made as the security guard perceived the happening of the accident, and there was no evidence that corroborated his statement… . Regarding the excited utterance exception, the plaintiff was required to demonstrate that “at the time of the statement the declarant was under the stress of excitement caused by an external event sufficient to still [his] reflective faculties and had no opportunity for deliberation”… . Here, the plaintiff failed to meet that burden. Therefore, it was error to admit the hearsay testimony concerning the out-of-court statement of the security guard.

The Supreme Court also erred in allowing the plaintiff’s expert to testify, in effect, that the defendants’ conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). “[ANSI] standards do not constitute statutes, ordinances, or regulations”… . Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants’ conduct should be measured against a higher standard of care than is required under the common law… . Gonzalez v City of New York, 2013 NY slip Op 05614, 2nd Dept 8-14-13

 

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DNA Evidence Which Excluded Defendant Was Not Enough to Warrant Vacation of Conviction, or Even a Hearing on the Motion to Vacate

Defendant was convicted of the rape of one victim and the murder of another during an incident in 1980.  Over a substantial dissent, the First Department determined that the recent DNA test results re: hairs found on the perpetrator’s hat and DNA found under the fingernails of the murder victim—results which ruled out the defendant—did not warrant vacation of defendant’s conviction pursuant to a CPL 440 motion, and did not warrant a hearing.  The First Department noted the strength of the identification evidence provided by the rape victim and the fact that only three of 18 hairs taken from the hat were tested by the defense.  The majority of the First Department wrote:

Defendant has not established that the newly discovered DNA evidence “is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]” … * * *

In deciding a CPL 440.10 motion, a hearing to develop additional facts is not “invariably necessary”; rather, CPL 440.30 contemplates that a court will make an initial determination on the written submissions whether the motion can be decided without a hearing … . Here, we find that even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial. Accordingly, the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing.

The dissent wrote:

I respectfully dissent, because I believe the motion court should have granted defendant further DNA testing and held an evidentiary hearing before determining his motion under CPL 440.10.  People v Jones, 2013 NY Slip Op 05547, 1st Dept 8-6-13

 

 

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DNA Reports Did Not Violate Right to Confrontation; Reports Admissible as Business Records

In finding DNA-profile reports generated by the City of New York’s Medical Examiner did not violate defendant’s right to confrontation, the Second Department wrote:

The reports contained no conclusions, interpretations, comparisons, or subjective analyses, and “consisted of merely machine-generated graphs” and raw data … . Accordingly, the reports were not “testimonial” in nature … .

Further, a foundation for the admission of these reports as business records was established through the testimony of an assistant director employed by the Office of the Chief Medical Examiner of the City of New York (see CPLR 4518[a]…), who also conducted the actual analysis and interpretation of the data contained in the reports at issue.  People v Fucito, 2013 NY Slip Op 05538, 2nd Dept 7-31-13

 

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Depraved Indifference Murder of Child Count Should Not Have Been Dismissed Based On the Grand Jury Evidence In Spite of Difficulty of Proving the Count at Trial

The Third Department determined the trial court should not have dismissed the count of the indictment which charged defendant with depraved indifference murder of a child.  While acknowledging the prosecution may have difficulty proving the charge at trial, the court determined that a logical inference from the grand-jury proof was that the injuries defendant inflicted on the child were immediately and obviously very serious and defendant callously delayed getting help while minimizing his conduct and the seriousness of the injuries.  In explaining the general criteria for the sufficiency of grand jury evidence, the court wrote:

In reviewing a motion to dismiss an indictment, courts view the evidence in a light most favorable to the People and determine only whether the evidence presented to the grand jury was legally sufficient … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt’… .  “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes” … .  “[I]f the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … .  People v Waite, 105416, 3rd Dept 7-25-13

 

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Defendant’s Statements Made in Pre-Trial Plea Negotiations Should Not Have Been Admitted at Trial

The Second Department determined the prosecutor should not have been allowed to introduce at trial statements made by the defendant in plea negotiations (the error was deemed harmless however):

The defendant and the People executed an agreement, whereby they agreed that the People could introduce those statements against the defendant at a trial, inter alia, “to rebut any evidence” offered by him or on his behalf. At the trial, the Supreme Court found that the defendant had triggered this provision of the agreement and permitted the People to introduce the subject statements.

Statements made during the course of plea negotiations can be used against a defendant only if the People specifically bargained for that…. Under the circumstances of this case, the Supreme Court improperly found that the defendant’s trial attorney offered evidence and raised factual issues which triggered the agreement… .  People v Thompson, 2013 NY Slip Op 05473, 2nd Dept 7-24-13

 

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Where There Are Sharp Factual Disputes, Forensic Evaluations Are Required for a Guardianship Determination

In a case with sharp factual disputes, the Second Department determined Family Court should not have decided the issue of guardianship without the aid of forensic evaluations:

The Family Court erred in deciding the issue of guardianship without the aid of forensic evaluations of Stephanie, Shanika, and Jada. Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final… . Under the circumstances of this case, the record is inadequate to determine the best interests of the child, particularly as there was no expert assessment of the psychological impact of separating Jada from Shanika. In addition, given Stephanie’s allegations of alcohol abuse by Shanika, and Shanika’s allegations of alienation by Stephanie and Stephanie’s current partner, forensic evaluations of Stephanie, Shanika, and Jada are proper to aid in the resolution of these factual issues.  Matter of Shanika M v Stephanie G, 2013 NY Slip Op 05460, 2nd Dept 7-24-13

 

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Dismissal of Complaint Was Too Severe a Sanction for Spoliation

The New York City Housing Authority (NYCHA) sued a security company and others based upon a fire that apparently was started by a cigarette carelessly thrown into a wastebasket.  During discovery defendants requested the surveillance video.  Plaintiff had reviewed the video and apparently had deleted portions of it considered unnecessary.  Defendants’ motion to dismiss pursuant to CPLR 3126 (spoliation of evidence) was granted and the complaint was dismissed.  The First Department determined dismissal of the complaint was too severe a penalty and ordered that plaintiff be precluded from using the video as evidence.  The court explained:

As a threshold issue, NYCHA unconvincingly argues that no sanction is appropriate because litigation was not pending when the video was edited. For a spoliation sanction to be applicable, there need only be the “reasonable anticipation of litigation” … . The day after the fire, [NYCHA] was already viewing and editing the video, identifying images he thought would be relevant to determine how the fire started. These actions indicate that NYCHA may have been contemplating litigation, or at least wanted to identify the culpable person, and therefore the records were destroyed with a “culpable state of mind” … . For the purposes of a spoliation sanction, “[a] culpable state of mind . . . includes ordinary negligence”… .

Although NYCHA should be sanctioned for the destruction of portions of the surveillance video, the dismissal of the complaint was too harsh a remedy. Dismissing an action is “usually not warranted unless the evidence is crucial and the spoliator’s conduct evinces some higher degree of culpability” … . It is a “drastic sanction” and should only be done when a party has destroyed key evidence… .

The record does not support defendants’ contention that dismissal is required because the unredacted video is key evidence without which they will be “substantially prejudiced”… . New York City Hous Auth v Pro Quest Sec, Inc, 2013 NY Slip Op 05429, 1st Dept 7-23-13

 

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Improper Admission of Evidence of Similar (Pending) Criminal Charge under Molineux Required Reversal

The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:

“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13

 

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