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Hearsay About Cause of Fall Included in Hospital Report Should Not Have Been Presented to the Jury

In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury:

Generally, admissions not germane to the treatment or diagnosis of a plaintiff’s injuries are not admissible under the business records exception to the hearsay rule … . A hearsay entry in a hospital record as to the cause of an injury may be admissible at trial even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry … .

…[P]laintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information … . Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff’s allegations. [Defendant’s] primary defense was that plaintiff slipped on wet ground, and not from its negligence … .  Grant v New York City Tr Auth, 3013 NY Slip Op 02318, 9211, 305841/08, 1st Dept 4-4-13

SLIP AND FALL

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Criteria for Demonstrating Documents Were Material Prepared in Anticipation of Litigation

The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows:

“The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . More particularly, “[t]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation . . . bears the burden of demonstrating that the material it seeks to withhold is immune from discovery … by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . An attorney’s affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant’s burden of demonstrating that the materials were prepared exclusively for litigation … .  New York Schools Ins Reciprocal v Milburn Sales Co, Inc, 2013 NY Slip Op 02227, 2012-01697, Index no 2848/11, 2nd Dept 4-3-13

 

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Where Attorney Is a Party to a Lawsuit, Attorney’s Submission of an Affirmation as Opposed to an Affidavit in Opposition to Motion to Dismiss Is Not a Sufficient Ground for Dismissal of the Complaint

The Second Department determined a complaint could not be dismissed on the ground that an attorney’s unnotarized affirmation was submitted in opposition to the motion, rather than an affidavit:

When an attorney is a party to an action, and affidavits are required to support or oppose a request for relief, that attorney may not rely upon an unnotarized affirmation in lieu of an affidavit, as the facts alleged in that affirmation would not be in admissible form (see CPLR 2106…). However, contrary to the Supreme Court’s determination, [plaintiff’s] submission of an unnotarized affirmation in lieu of an affidavit in opposition to the … defendants’ motion to dismiss the complaint insofar as asserted against them did not warrant the granting of that motion. “CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” … . Accordingly, [defendant’s] failure to submit an affidavit was not fatal to his opposition, and the Supreme Court should not have granted the … defendants’ motion to dismiss the complaint insofar as asserted against them on that basis. Law Offs of Frishberg v Toman, 2013 NY Slip Op 02224, 2011-04956, 2011-07881, Index No 12965/10, 2nd Dept 4-3-13

 

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Criteria for Determining Sufficiency of Evidence Before Grand Jury Explained 

In reinstating two counts of an indictment that were dismissed upon the trial court’s review of the sufficiency of the proof before the grand jury, the Second Department wrote:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL 70.10[1]). ” In the context of a Grand Jury proceeding, 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,’ and whether the Grand Jury could rationally have drawn the guilty inference.’ That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference'” … .  People v Woodson, 2013 NY Slip Op 02282, 2012-02226, Ind No 1881/11, 2nd Dept 4-3-13

 

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28-Hours Between Arrest and Arraignment Okay

The Second Department determined a 28-hour delay between arrest and arraignment did not render defendant’s confession involuntary:

Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession … . The record does not support the defendant’s claim that the police unnecessarily delayed his arraignment. Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel … . People v Lin, 2013 NY Slip Op 02267, 2008-07244, Ind No 1705/05, 2nd Dept 4-3-13

SUPPRESS, SUPPRESSION

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Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation

The Second Department reversed defendant’s conviction because a detective was allowed to testify about a statement made by a nontestifying codefendant in violation of the defendant’s right of confrontation under Crawford:

…[O]ver the defendant’s objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant was in the codefendant’s vehicle on the night of the incident. As the People correctly concede, this violated the defendant’s right of confrontation, secured to him by the Sixth Amendment to the United States Constitution … . This error was compounded when, on summation, the prosecutor argued that the codefendant’s statement established the defendant’s presence at the scene of the incident. Since the remaining evidence establishing the defendant’s identity as one of the assailants was not overwhelming, the error cannot be deemed harmless beyond a reasonable doubt… . People v Andujar, 2013 NY Slip Op 02261, 2009-06561, Ind No 1124/06, 2nd Dept 4-3-13

 

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Whether a Confidential Relationship Existed With Decedent Is a Question of Fact for the Jury; Application of Dead Man’s Statute Explained

In reversing the Surrogate’s Court verdict, the Third Department, in a decision by Justice Spain, determined that the existence of a confidential relationship with the decedent is a question of fact for the jury (Surrogate’s Court determined the existence of the relationship as a matter of law).  In addition, because the matter is to be retried, the Third Department included a useful discussion of how the Dead Man’s Statute (CPLR 4519) should be applied:

Under  the  doctrine of “‘constructive fraud,'” where  a  confidential relationship exists between  two parties to a transaction “‘such that they were dealing on unequal terms due to one party’s weakness, dependence or trust  justifiably reposed  upon  the  other  and  unfair advantage  is rendered  probable,'” the  burden  of proof  with  respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used … In determining whether a confidential  relationship  exists,  “the  existence  of  a  family relationship does  not, per se, create a presumption  of undue influence; there must be evidence of other facts or circumstances showing  inequality  or  controlling influence” … ..The  existence of such a relationship will ordinarily be  a question of fact … . *  *  *

The [Dead Man’s] statute precludes an interested party from being “examined as a witness in his [or her] own behalf or interest . . . concerning a personal transaction or communication between the witness and  the deceased person” (CPLR 4519 …). Given that the “purpose of the rule is ‘to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court’…, it   will not preclude any testimony elicited by the representative of the estate, nor does it preclude testimony of transactions between decedent and a non-interested third party …. Further, the statute’s protections with regard to a particular transaction may be waived where the representative “testifies in his [or her] own behalf concerning a personal transaction of his adversary with the deceased” or when he or she “elicits testimony from an interested party on the personal transaction in issue” …  .  Matter of Nealon, 513733, 3rd Dept 3-28-13

 

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Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. “[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but “a link in the chain of data” that assisted her in forming her opinion … . Accordingly,  Schockmel’s expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

 

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Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:

While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

 

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Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

 

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