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Judge’s Refusal to Allow Defendant to Call Inmate Witness Required Reversal

The Fourth Department reversed defendant’s conviction because the trial court refused defendant’s request to present an inmate witness who might have supported defendant’s version of events:

CPL 630.10 provides for the attendance of an inmate witness in a criminal action or proceeding upon a demonstration of “reasonable cause to believe that such person possesses information material” to such proceeding.  Here, defendant made the requisite showing under that statute, and the court abused its discretion in refusing to order the production of the subject inmate witness whose testimony defendant sought to present at trial… .  There is no dispute that the proposed inmate witness spoke to the driver of the vehicle in which defendant was a passenger just before defendant’s arrest.  The proposed witness was at a distance of between 20 feet and 20 yards from the vehicle at the time of defendant’s arrest.  Moreover, we note that there was no fingerprint evidence in this case, which involved a top count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and the issue of defendant’s guilt turned largely on the testimony of two police detectives.  We cannot countenance the court’s refusal to allow defendant to present the testimony of a witness who might have supported defendant’s version of events.  People v Baxter, 599, 4th Dept 7-19-13

 

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Expert’s Affidavit Too Speculative to Raise Question of Fact About Proximate Cause

In reversing Supreme Court and dismissing a medical malpractice complaint, the Fourth Department determined plaintiff’s expert affidavit was speculative and therefore failed to raise a question of fact about whether the alleged negligence (the failure to order a particular CT scan) was the proximate cause of the injury:

The expert contends that, if that CT scan had been performed on February 16, 2004, “then diagnosis of [decedent]’s aortic dissection . . . would, more probably than not, have been made.”  Significantly, however, the medical records indicate that it was a CT scan of decedent’s head and chest, not a scan of his pelvis and abdomen, that revealed an aortic dissection on March 1, 2004.  Thus, the opinion of plaintiff’s expert that an abdominal and pelvic CT scan performed on February 16, 2004 would more likely than not have revealed an aortic dissection is speculative.  Wilk … v James, et al, 401, 4th Dept 7-19-13

 

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Prosecutor Need Not Accept Defendant’s Stipulation in Lieu of DNA Test

The Second Department affirmed Supreme Court’s denial of an Article 78 petition seeking prohibition with respect to an order that petitioner allow a buccal swab for DNA testing.  The petitioner argued that his offer to stipulate his DNA matched the DNA on two firearms should preclude the test. The Second Department held that a prosecutor was under no obligation to accept the offer to stipulate:

“[A] court order to obtain a [bodily] sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable”…. “In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect’s constitutional right to be free from bodily intrusion on the other” …. Here, the petitioner … contends that the People’s motion should have been denied on the ground that his offer to stipulate that his DNA matched the DNA recovered from the two firearms at issue provided a less intrusive method of obtaining the evidence. However, the law is manifestly clear that the People are under no obligation to accept an offer by a defendant to stipulate to a fact or to an element of a charged crime …, and “the decision as to whether to decline or accept such a stipulation lies wholly within the prosecutor’s discretion”…. Accordingly, since the petitioner has failed to demonstrate a clear legal right to the extraordinary remedy of prohibition, his petition is denied … .  Matter of Johnson v Shillingford, 2013 NY slip Op 05212, 2nd Dept 7-10-13

 

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DNA Evidence Not Testimonial—No Denial of Right to Confrontation

In affirming defendant’s conviction, the Second Department noted that DNA evidence did not violate defendant’s right of confrontation because the challenged evidence was not testimonial:

[Defendant’s] right of confrontation (see US Const Sixth Amend) was not violated when an expert testified that a DNA profile produced by the Office of the Chief Medical Examiner (hereinafter OCME) from a sample of the decedent’s blood matched a DNA profile produced by the OCME from a sample of a stain on a pair of jeans given to the office by the police department. The DNA profiles were not testimonial …, but rather, were merely raw data that, standing alone, did not link the defendant to the crime… . The connection of the defendant to the crime was made by the testimony of police officers establishing that the defendant was wearing the subject jeans when arrested, and of the DNA expert, who testified that, based on his analysis, the two subject DNA profiles matched…. People v Pitre, 2013 NY slip Op 05231, 2nd Dept 7-10-13

 

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Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense

The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:

A criminal defendant has a fundamental right to produce witnesses, and “absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied”…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….

In the instant case, the proposed testimony of the defendant’s sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… .  People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13

 

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References to Fingerprint Evidence Processed by Non-testifying Technician Did Not Violate Right to Confrontation

In determining defendant’s right to confrontation was not violated by latent fingerprint evidence processed by a technician who did not testify, the Fourth Department explained:

The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician’s findings were not testimonial because the latent fingerprint, “standing alone, shed[s] no light on the guilt of the accused in the absence of an expert’s opinion that the [latent fingerprint] match[es] a known sample”… .Moreover, the analyst who determined that the latent print matched one of defendant’s fingerprints in fact testified at trial and was available for cross-examination.    Therefore, defendant’s right to confront witnesses against him was not violated… .  People v Jackson, 645, 4th Dept 7-5-13

TESTIMONIAL HEARSAY

 

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Affidavit Stating that Third Party Confessed to Murder Required a Hearing Pursuant to a Motion to Vacate the Judgment of Conviction Based Upon Newly Discovered Evidence

The Fourth Department reversed Supreme Court finding that a hearing should be held on defendant’s motion to vacate his conviction based on newly discovered evidence.  The evidence was an affidavit from a person to whom a third person is alleged to have confessed to the murder.  The Fourth Department determined the hearsay statement could be considered as a basis for the 440 motion because it met the criteria of a statement against penal interest and, although there was no showing the declarant was unavailable (a criterium for admissibility under this hearsay exception), it was reasonable to assume the declarant would assert his Fifth Amendment privilege against self-incrimination and refuse to testify (thereby becoming unavailable).

We agree with defendant that where, as here, the declarations exculpate the defendant, they “are subject to a more lenient standard, and will be found ‘sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true’ ”…. That is because “ ‘[d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense’ ” ….  Although the People contend that there is no evidence that the third party is unavailable, we conclude that, inasmuch as the statements attributed to the third party implicate him in a murder, there is a likelihood that, if called to testify at a trial, he would assert his Fifth Amendment privilege against self-incrimination and thus become unavailable … .  People v McFarland, 729, 4th Dept 7-5-13

 

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Evidence Insufficient to Support Reckless Endangerment in the First Degree—No One In Line of Fire

The Fourth Department reversed defendant’s conviction for reckless endangerment in the first degree in a shooting case where there was no evidence anyone was near the line of fire:

“A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct [that] creates a grave risk of death to another person” (Penal Law § 120.25). The evidence at trial established only that defendant stood on a street corner and fired up to five shots from a handgun. The People “presented no evidence that any person . . . ‘was in or near the line of fire’ ” so as to create a grave risk of death to any such person… .  People v Stanley, 757, 4th Dept 7-5-13

 

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Statement Correctly Admitted as Dying Declaration

In affirming the conviction, the Fourth Department held that a statement was correctly admitted as a dying declaration:

[The trial court admitted] as a dying declaration exception to the hearsay rule the testimony of a prosecution witness that, after being shot in the inner thigh, the victim stated, “I got robbed” and “I got shot.”    The People presented evidence establishing that, when the witness arrived at the scene, the victim was bleeding heavily from a femoral artery wound, his clothes were soaked in blood from the waist down, and he was inhaling and exhaling very hard.  The victim stated to the witness, “I’m gonna die, I’m gonna die”; he then became totally unresponsive and, shortly thereafter, he died. Thus, we conclude that the court properly determined that the victim’s statements were made with “a sense of impending death, with no hope of recovery” …  .  People v Elder, 713, 4th Dept 7-5-13

 

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Defendant Was Lawfully Seized by Police Under these Facts

The Fourth Department affirmed Supreme Court’s denial of defendant’s suppression motion, finding that the defendant was not unlawfully seized under the following facts:

At the suppression hearing, a police officer testified that he stopped defendant because defendant was riding the motorbike in the road without a helmet.  When the officer asked defendant whether he had any identification, defendant answered, “no,” and took a step back, whereupon the officer reached toward defendant in an attempt to frisk him.  Before the officer could detain him, however, defendant ran away and, during his flight, punched another officer who had joined in the pursuit. Defendant was soon apprehended and found to be in possession of a loaded firearm, 20 bags of marihuana, and more than $2,000 in cash. People v Bradley, 685, 4th Dept 7-5-13

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