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Sexual Offense Convictions Reversed as Against the Weight of the Evidence—Too Many Inconsistencies and Contradictions in Proof

The Second Department reversed defendant’s convictions on sexual offenses as against the weight of the evidence:

The testimony of the prosecution’s witnesses failed to provide a credible foundation for the defendant’s convictions due to numerous inconsistencies and contradictions. * * *

…[T]the prosecution’s witnesses testified that the defendant and the mother separated in 2002, and, at the time, the defendant had already moved out of the home where the abuse allegedly took place. Thus, many of the alleged incidents of abuse took place after the defendant had moved out of the home and no longer had a key to it. From 2003 to 2005, a restraining order that the mother obtained against the defendant was in effect, and the mother confirmed that, during one period of time in 2004, the defendant conducted all of his visits with the children outside of the home. The testimony of the prosecution’s witnesses was generally inconsistent as to whether, during the other visits, the defendant stayed alone with the children in the mother’s home, or whether the grandmother or the mother was always present. In any event, although the younger stepdaughter alleged that the defendant molested her twice per week between 2000 and 2004, the trial testimony clearly established that the defendant’s access to the children was often limited after he moved out of the mother’s home in 2002.  People v McMitchell, 2013 NY Slip Op 06713, 2nd Dept 10-16-13

 

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Robbery Conviction Against Weight of Evidence—Hand In Pocket Not Evidence of Threat to Use Force

In reversing the defendant’s robbery conviction as against the weight of the evidence, the Second Department determined the fact that defendant’s hand was in his pocket did not support the “threat to use immediate physical force” element of the offense:

This Court has held that where an unarmed person “positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm,” that qualifies as displaying what appears to be a gun … . Since the defendant here admitted to knowingly entering the warehouse with the intent to commit a crime therein, the acquittal of burglary in the second degree could only be based upon the People’s failure to prove that the defendant displayed what appeared to be a firearm, or, in other words, upon the People’s failure to prove that the defendant positioned his hand in his pocket in a manner intended to convey to the complainants the impression that he was holding a gun.

The trial court’s factual finding that the defendant did not display what appeared to be a firearm is supported by the record. The trial court, however, failed to give that finding the proper weight with respect to the crime of robbery in the third degree … . If the People failed to prove that the defendant displayed what appeared to be a firearm by holding his hand in his pocket, then there was no basis on which the trial court could conclude that the defendant’s conduct of holding his hand in his pocket constituted a threat to use immediate physical force upon the complainants in order to overcome their resistance. Accordingly, the verdict of guilt with respect to robbery in the third degree was against the weight of the evidence, and we vacate that conviction and the sentence imposed thereon… .  People v Johnson, 2013 NY Slip Op 06709, 2nd Dept 10-16-13

 

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Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

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Failure to Allow Hearsay Admissible as Statement Against Penal Interest Required Reversal

In a weapon-possession case, the Court of Appeals, over a dissent, reversed the appellate division and held the defendant should have been allowed to call an attorney to testify that a (separately tried and acquitted) co-defendant told the attorney the weapon at issue was hers.  The court found the attorney’s testimony was admissible under the statement-against-penal-interest exception to the hearsay rule:

The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” … .  The exception has four components:    (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … .  The fourth factor is the “most important” aspect of the exception … .  Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” … .

We conclude that the courts below erred by focusing on the inconsistency between the … codefendant’s trial testimony and her pretrial statement to [the] lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made …, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement.  Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case:  the handgun was found in a handbag located in the rear of the automobile directly adjacent to the … codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests.  Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify.  Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming.  Defendants are therefore entitled to a new trial.  People v Shabazz, 150, CtApp 10-15-13

 

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Erasure of Audio Recording Constituted Negligent Spoliation of Evidence Under New York Common Law—No Need to Turn to Federal Law Re: Preservation of Electronically Stored Information

In a full-fledged opinion by Justice Saxe, the First Department determined the City’s erasure of an audio recording related to a police chase that resulted in injuries to plaintiffs constituted negligent spoliation under New York common law and there was no need to rely on federal authority re: the spoliation of electronically stored information [ESI]:

…[P]laintiffs’ spoliation claim can be fully addressed under New York’s common-law spoliation doctrine. However, because plaintiffs rely exclusively on the [federal] Zubulake IV rule that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold'” to preserve evidence (220 FRD at 218), we briefly address the question of whether we need to import Zubulake’s rules into the established New York common-law rules as to spoliation of non-ESI evidence.

The cases in which this Court has explicitly adopted the Zubulake rulings have involved ESI discovery … . The usefulness of the Zubulake standard in the e-discovery arena, is … that it “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered” (93 AD3d at 36). At the same time, … Zubulake “is harmonious with New York precedent in the traditional discovery context” … . This is an area that did not need greater certainty or clarification. * * *

We … conclude that reliance on the federal standard is unnecessary in this context. Zubulake interpreted federal rules and earlier federal case law to adapt those rules to the context of ESI discovery. However, the erasure of, and the obligation to preserve, relevant audiotapes and videotapes, can be, and has been, fully addressed without reference to the federal rules and standards. Strong v City of New York, 2013 NY Slip Op 06655, 1st Dept 10-15-13

 

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Plaintiff’s Proof of Reason for Termination of Treatment Was Sufficient to Get By Defendant’s Summary Judgment Motion

Over two dissenters, the Court of Appeals reversed the grant of summary judgment to the defendant with respect to plaintiff’s proof of “serious injury” under the No-Fault Law.  Plaintiff testified that he stopped physical therapy because “they cut [him] off like five months.”  The appellate division held that bare assertion was insufficient to justify the termination of treatment and documentary evidence of the exhaustion of insurance benefits or at least an indication the claimant could not pay for the treatment was required. In reversing, the Court of Appeals wrote:

We stated in Pommells [4 NY3d 566] that a plaintiff claiming “serious injury” within the meaning of the No-Fault Law “must offer some reasonable explanation” for terminating treatment (4 NY3d at 574).  We did not require any particular proof regarding that explanation, although we recognized that there is “abuse of the No-Fault Law in failing to separate ‘serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not”… .

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident.  While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy.  Ramkumar v Grand Style Transportation Enterprises Inc…, 170, CtApp 10-15-13

 

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Cross-Examination About Omission from Witness’ Statement to Police Should Have Been Allowed

The Second Department concluded the trial court should have allowed the cross-examination of a witness about a physical characteristic of the defendant the witness had not mentioned to the police:

“[A] witness may not be impeached simply by showing that he [or she] omitted to state a fact, or to state it more fully at a prior time” … . However, impeachment by omission is permissible when the witness omits a critical fact … . “An omission of fact at a prior time is insufficient for impeachment purposes unless it is shown that at th[at] prior time the witness’ attention was called to the matter and that he [or she] was specifically asked about the facts embraced in the question propounded at trial'” … . ” [C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony'” … . Here, given the eyewitness’s testimony which demonstrated that the defendant’s “squinting,” “partly closed” left eye was a significant factor in his identifying the defendant as the assailant, the trial court erred in precluding the defendant from cross-examining the eyewitness about his omission of this observation of the assailant’s appearance when he described the assailant to the police… . People v Greene, 2013 NY Slip Op 06589, 2nd Dept 10-9-13

 

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In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained

In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.:

The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits” … . Under the circumstances presented here, we find no basis to disturb the Family Court’s refusal to draw the negative inference urged by the appellant … .

The appellant’s further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant …, and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. “Because the appellant’s attorney was present during the child’s testimony and cross-examined her on the appellant’s behalf, neither the appellant’s due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child’s testimony” … .  Matter of Michael U…, 2013 NY Slip Op 06583, 2nd Dept 10-9-13

 

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No Element of Intent in Constructive Possession of Contraband

The First Department determined there was no “intent” element to the constructive possession of contraband.  The marijuana and stun gun at issue were in an apartment defendant shared with his aunt and nephew. The defendant argued that, even if he was fully aware the items were in the apartment, the People were required to prove that he intended to exercise dominion and control over them.  The court wrote:

In defendant’s view, even if he was fully aware that there was contraband in the apartment he shared with his aunt and nephew, and even if he had unfettered control over the areas where the contraband was located, he was not guilty of possessing it since he merely tolerated his drug-dealing nephew’s use of the apartment as a repository for the contraband and had nothing else to do with it. We disagree.

There is no element of intent in constructive possession. A long line of authority makes clear that knowing constructive possession of tangible property is established where the People prove knowledge that the property is present and “a sufficient level of control over the area in which the contraband [was] found” … People v Rodriguez, 2013 NY Slip Op 06495, 1st Dept 10-8-13

 

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Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause

The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause.  A baggie containing drugs and a dagger were not found until after the illegal arrest:

…[T]he police were justified in approaching the vehicle outside the bar because they had a “founded suspicion that criminal activity [was] afoot,” rendering the police encounter lawful at its inception … . We further conclude that the police were justified in pursuing the vehicle inasmuch as “defendant’s flight in response to an approach by the police, combined with other specific circumstances indicating that [he] may be engaged in criminal activity, [gave] rise to reasonable suspicion, the necessary predicate for police pursuit” … .  Such reasonable suspicion also gave the police the authority to stop the vehicle … .

…[W]e conclude that an arrest occurred here when defendant was handcuffed and placed in the back of a police car.  Under such circumstances, “a reasonable man innocent of any crime, would have thought” that he was under arrest … .  “[V]arious factors, when combined with the street exchange of a ‘telltale sign’ of narcotics, may give rise to probable cause that a narcotics offense has occurred.  Those factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any ‘additional evidence of furtive or evasive behavior on the part of the participants’ ” … .  Here, the police observed neither a “ ‘telltale sign’ ” of narcotics, such as a glassine baggie, nor the exchange of currency … .  Thus, despite the observations of the police outside the bar, their experience in drug investigations, and defendant’s flight, we conclude that the police did not have probable cause to arrest defendant before the dagger and first baggie were observed. People v Lee, 1005, 4th Dept 10-4-13

STREET STOPS, SUPPRESSION

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