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Neglect Finding Cannot Be Based Upon Theoretical Future Harm

The Fourth Department determined that a finding of neglect “cannot be based upon the child’s possible reaction to future harm:”

…DSS failed to meet its burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of respondent’s failure to exercise a minimum degree of care … .  The court’s finding of neglect hinges of the testimony of DSS’s expert psychologist that respondent’s dismissive response to the child’s allegations that she had been sexually abused by her eight-year-old cousin put the child at risk of harm because such response would cause the child to be reluctant to report future allegations of abusive contact.  The evidence did not establish that the child was in fact sexually abused, and we therefore conclude that the court erred in finding that respondent is chargeable with neglect for failing to protect the child from actual harm … .  Moreover, the finding of neglect cannot be based upon the child’s possible reaction to future harm.  “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred” … .  Matter of Lebraun H … 1203, 4th Dept 11-15-13

 

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Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission

In the context of a personal injury case, the Fourth Department noted that the failure to object to the admissibility of medical records within 10 days (CPLR 3122-a [c]) did not render the documents automatically admissible:

Defendants contend that the court erred in denying their request at the commencement of trial to admit all of plaintiff’s medical records in evidence pursuant to CPLR 3122-a (c).  According to defendants, the records were automatically admissible because plaintiff raised no objection within 10 days of trial (see id.).  We reject that contention.  Plaintiff’s failure to object within 10 days before the trial waived any objection plaintiff had to the admissibility of the records as business records (see CPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibility based on other rules of evidence … .  Indeed, plaintiff properly objected at trial on relevancy grounds with respect to the admissibility of some of the records… . Siemucha v Garrison…, 1145, 4th Dept 11-15-13

 

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“Depraved Indifference” Standard Not Met/HIV Positive Defendant Did Not Disclose Status to Victim

The Fourth Department determined the evidence before the grand jury did not demonstrate defendant had acted with “depraved indifference to human life” (Reckless Endangerment, First Degree). The defendant, who was HIV positive, had unprotected sex with the victim without disclosing his HIV status:

…[W]e conclude that the evidence before the grand jury, viewed in the light most favorable to the People …, was legally insufficient to support a finding that defendant acted with depraved indifference to human life (see Penal Law § 120.25…).  Specifically, the evidence established that defendant engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.

Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.  We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the “ ‘wanton cruelty, brutality, or callousness’ ” required for a finding of depraved indifference toward a single victim … .  Defendant told the police that he did not disclose his HIV positive status to the victim because he was “afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  Defendant wrote a letter apologizing to the victim because he was “so upset” and “felt terrible.”  The fact that defendant encouraged the victim to be tested for HIV indicates that defendant “was trying, however weakly and ineffectively,” to prevent any grave risk that might result from his conduct … .  We thus conclude that, “while the evidence certainly shows that defendant cared much too little about [the victim]’s safety, it cannot support a finding that [he] did not care at all” … .

We further conclude that the grand jury evidence, viewed in the light most favorable to the People …., also did not establish that defendant’s conduct presented a grave risk of death to the victim (see Penal Law § 120.25…).  The victim’s physician, an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different antiviral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is “outstanding,” particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a “very healthy, normal lifestyle,” and he expected a similar prognosis for the victim.  We thus conclude that, under the circumstances of this case, the People failed to establish that defendant’s reckless conduct posed a grave or “very substantial” risk of death to the victim… .  People v Williams, 1196, 4th Dept 11-15-13

 

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Pre-Closing Documents Can Not Be Used to Prove Conveyance or the Issuance of Title Insurance

The Court of Appeals determined that a third-party purchaser of mortgages in the secondary mortgage market could not “rely on pre-closing documents to establish that a proper conveyance and recording of the underlying property occurred or that title insurance for the property was issued.”  DLJ Mortgage Capital, Inc v Kontogiannis…, 253 SSM 29, CtApp 11-14-13

 

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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Newly Discovered Evidence Required Vacation of Murder Conviction

The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence.  At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting:

CPL 440.10(1)(g) provides that a court may vacate a judgment of conviction upon the ground that: “New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which 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 the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.” The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6]…). The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion of the hearing court … . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial … .

Contrary to the People’s contention, the Supreme Court properly determined that the defendant satisfied his burden of proof and that the likely cumulative effect of the newly discovered evidence, including the evidence of the broad conspiracy to pay the eyewitnesses to implicate the defendant as the shooter, would have been a verdict more favorable to the defendant … . People v Singh, 2013 NY Slip Op 07508, 2nd Dept 11-13-13

 

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Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

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Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

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Emergency Doctrine Precluded Action on Behalf of Driver of Car Which Crossed Into On-Coming Lane of Traffic; ”Noseworthy” Doctrine Did Not Apply to Reduce Plaintiff’s Decedent’s Burden of Proof

The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane.  The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery:

Under the emergency doctrine, “ ‘when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency’ ” … .  It is well established that a driver is “not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel” … .

Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent’s vehicle unexpectedly crossed over into defendant’s lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision … .  Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver’s] response was reasonable” …, we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant’s] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact”… . Shanahan… v Mackowiak…, 1105, 4th Dept 11-8-13

 

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

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