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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

 

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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

 

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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

 

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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

 

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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

 

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“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

 

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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

 

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Court’s Refusal to Give the Circumstantial Evidence Jury Instruction Required Reversal—No Direct Evidence Defendant Was Aware of Cocaine Hidden in Vehicle

The Court of Appeals reversed defendant’s conviction determining the trial court erred when it refused to charge the jury on circumstantial evidence.  The case was based upon the constructive possession of a brick of cocaine found in a hidden compartment in a vehicle.  Defendant was not the owner of the vehicle, was not driving the vehicle, and was not the target of police surveillance:

It is well established that a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence” … .  Constructive possession can be proven directly or circumstantially, and the necessity of a circumstantial evidence charge should be resolved on a case-by-case basis.  In this case, the proof connecting defendant to the drugs was wholly circumstantial.  Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine… . People v Santiago, 204, CtApp 11-26-13

 

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Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth:

As for the cocaine recovered from defendant’s mouth after he was tased more than once, defendant raised a question as to whether that evidence was seized from him through the use of excessive force, which requires an analysis “under the Fourth Amendment’s ‘objective reasonableness’ standard” .. .  Defendant’s affirmation described his version of the arrest and search, and his motion papers asserted that use of a taser constituted excessive force under the circumstances.  The People failed to substantively respond to this argument.  As the motion papers raised a factual dispute concerning the use of a taser and whether it might be considered excessive force, giving rise to a potentially unreasonable search and seizure that may require suppression of the evidence, a hearing was required… . People v Atkinson, 105126, 3rd Dept 11-21-13

 

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Defendant’s Flight Did Not Justify Police Pursuit and Entry Into Defendant’s Apartment—Evidence Properly Suppressed

The Second Department affirmed Supreme Court’s suppression of evidence.  Based upon a confidential informant’s vague description of a man who was about to be part of a drug sale, a police officer followed the defendant. The defendant started running and threw a small object away.  The defendant then entered an apartment with a key.  The police ultimately broke the door down and saw the defendant throw bags of marijuana and heroin out the window.   A subsequent search warrant turned up more drugs. The Second Department wrote:

“Police pursuit of an individual significantly impede[s]’ the person’s freedom of movement and thus must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed” … . Flight, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit … . “Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … .

Here, there were no specific circumstances indicating that the defendant might be engaged in criminal activity. The fact that the defendant matched the extremely vague description given by the informant of someone who would conduct a drug transaction somewhere in the vicinity, sometime later that day, was not sufficiently indicative of criminal activity … . * * *

Moreover, the detective compounded the unlawful pursuit by entering the apartment without consent or probable cause and exigent circumstances … . While retreat into one’s home cannot thwart an otherwise proper arrest set in motion in a public place, probable cause for the arrest is required … . When the detective entered the apartment, he did not have probable cause to believe that the defendant had committed a crime. Accordingly, all of the physical evidence was properly suppressed.  People v Nunez, 2013 NY Slip Op 07753, 2nd Dept 11-20-13

 

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