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Mode of Proceedings Error Re: Jury Note Required Reversal, Molineux Rulings Flawed

The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant.  In addition, the Fourth Department found fault with the procedure used by the trial court to address the admission into evidence of defendant’s prior bad acts, as well as some of the rulings that such evidence was admissible:

We agree with defendant that County Court committed a mode of proceedings error when it responded to a jury note off the record, in the jury room, and outside the presence of defendant, with no indication that defendant had waived his right to be present.  CPL 310.30 provides that, upon receiving a request for further instruction or information from the jury during deliberations, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.”  It is beyond cavil that “[a] defendant has a fundamental right to be present at all material stages of a trial . . . [and] CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal” … .  The court properly read the jury note on the record in the presence of defendant, defense counsel, and the prosecutor, and it then obtained a clear stipulation from both attorneys concerning the accuracy of its intended response to the jury’s request for information.  We nevertheless conclude that the court committed reversible error by subsequently instructing the jury off the record, in the jury room, and outside the presence of defendant (see CPL 310.30…).

Because there must be a retrial, we deem it appropriate to address defendant’s contention that the court abused its discretion by permitting testimony concerning defendant’s prior bad acts in the days, months, and years preceding the subject arson.  “[A] defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264) or to a pretrial hearing on the admissibility of such evidence” ….  Nevertheless, “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ . . . and . . . any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies’ ” … .

Here, that procedure was not followed.  Instead, the court improperly afforded defense counsel a standing objection with respect to testimony concerning defendant’s prior bad acts while affording the prosecutor the opportunity to ask one of the victims of the arson, who was defendant’s neighbor, about defendant’s prior bad acts over a period as long as 10 years before the arson.  It was particularly improper to allow that witness to testify that, as a result of defendant’s prior bad acts, he had concerns about the safety of his children and pets.  “It is fundamental that evidence concerning a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate that the defendant was predisposed to commit the crime charged” … .  Although defendant’s bad acts within a few days of the arson could be deemed relevant to such issues as motive and intent, testimony concerning defendant’s bad acts in the preceding weeks, months or years was irrelevant to any issue in the case and only could have prejudiced defendant by suggesting to the jury that he was an erratic and potentially dangerous person who had the propensity to commit the crime at issue … . People v Cornell, 870, 4th Dept 10-4-13

 

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Malpractice Action Against Pharmacy Dismissed; Applicable Standard of Care and Insufficiency of Expert Affidavit Explained

In affirming the dismissal of a malpractice complaint against a pharmacy (Rite Aid) for failure to state a cause of action, the Fourth Department explained the standard of care imposed upon a pharmacy and the necessary contents of an expert affidavit alleging the profession has established a different standard of care:

With respect to the sufficiency of the complaint before us, we note that in New York “ ‘[t]he standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business.  The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention’ ” … .  “Generally, a pharmacist cannot be held liable for negligence in the absence of an allegation that he or she failed to fill a prescription precisely as directed by the physician or was aware that the customer had a condition that would render the prescription of the drug at issue contraindicated” … .  Here, because plaintiff failed to allege that the dosage “fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance” …, that Rite Aid did not follow the prescribing physician’s directions, or that Rite Aid was aware that the drug was contraindicated for plaintiff, the court properly concluded that the complaint fails to state a cause of action for negligence on the part of Rite Aid … .

Contrary to plaintiff’s further contention, she failed to establish through an expert’s affidavit that the pharmacy profession itself has created a different standard of care from that set forth herein.  In support of that contention, plaintiff submitted the affidavit of a pharmacist who opined that “[t]he dose [of prednisone prescribed for plaintiff] triggers the need to contact the prescribing physician to double check the dosage and to notify the patient of the very high dose and risks associated with that dose.”  “ ‘[O]rdinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would’ [be sufficient to allege a violation of a professional standard of care] .

. . Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to” establish a violation of a standard of care … . Thus, an expert’s affidavit is insufficient to establish that a standard of care exists where it is “devoid of any reference to a foundational scientific basis for its conclusions” … .  Here, the expert cites no industry standard, treatise or other authority in support of his opinion regarding the standard of care …, and plaintiff therefore failed to establish that the pharmacy profession itself imposes a different standard of care from that set forth in the applicable case law. Burton v Sciano, et al, 837, 4th Dept 10-4-13

 

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Checkpoint Vehicle Stop Illegal

The First Department determined a vehicle checkpoint stop to control automobile thefts was unconstitutional:

The suspicionless vehicle checkpoint stop that led to the recovery of contraband in this case was constitutionally impermissible because the primary purpose of the checkpoint was “essentially to serve the governmental interest in general crime control” … . It is undisputed that the primary purpose of the checkpoint was to deter or control auto theft. Contrary to the People’s assertions, the interest in “controlling automobile thefts,” as described in this case, “is not distinguishable from the general interest in crime control” … . Under the applicable precedents, a secondary goal of promoting highway safety does not justify a checkpoint stop. People v Velez. 2013 NY Slip Op 06437, 1st Dept, 10-3-13

STREET STOPS, SUPPRESSION, SEARCH AND SEIZURE

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Police Violated Defendant’s Constitutional Rights by Pushing Door Open and Entering Apartment When Defendant Answered the Door—The “Payton” Violation (a Warrantless Arrest Inside Home) Mandated Suppression of Defendant’s Statement

Over a two-justice dissent, the Second Department determined defendant was arrested pursuant to a Payton violation (a warrantless arrest inside defendant’s home) and his subsequent statement should have been suppressed. The police were at defendant’s door with the complainant who told the police defendant had assaulted her.  When defendant opened the door, the complainant identified him as the assailant.  The defendant tried to shut the door, but the police pushed their way in and arrested him. The trial court felt there was no Payton violation the defendant’s attempt to shut the door after the identification was akin to “fleeing” or “exigent circumstances.”  The Second Department, in a full-fledged opinion by Justice Balkin, disagreed and wrote:

In Payton v New York (445 US 573), the United States Supreme Court announced a clear and easily applied rule with respect to warrantless arrests in the home: “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (Payton v New York, 445 US at 590). The rule under the New York Constitution is the same (see NY Const, art 1, § 12; People v Levan, 62 NY2d 139, 144). Payton and Levan require suppression of the defendant’s statement under the clear, undisputed facts of this case.

Certainly, if the defendant’s encounter with the police had begun outside his home, or even on the threshold of it, the defendant could not have avoided arrest by fleeing into his home (see United States v Santana, 427 US 38, 43). But, contrary to the hearing court’s characterization, the defendant’s attempt to close his door was not “akin” to “fleeing”; he had never left the constitutionally protected interior of his home in the first place, even partially, so he did not flee “into” his home … . People v Gonzales, 2013 NY Slip Op 06381, 2nd Dept 10-2-13

 

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Ambiguity of Contract Is a Question of Fact Where Credibility of Extrinsic Evidence Must Be Assessed

The First Department determined there was question of fact whether defendant signed a note in his personal as well as corporate capacity. The court explained the relevant analysis where a contract is ambiguous:

A contract is ambiguous if “on its face [it] is reasonably susceptible of more than one interpretation” … . The determination whether a contract is ambiguous is a question of law for the court … . If the court deems a contract ambiguous, it may consult extrinsic evidence to resolve the ambiguity … . However, where “the determination of the parties’ intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact” … .  Chen v Yan, 2013 NY Slip Op 05957, 1st Dept 9-24-13

 

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Hearsay Not Assessed for Reliability—Determination Annulled

The Third Department annulled a determination that was based upon hearsay which had not been assessed for reliability:

While hearsay evidence may constitute substantial evidence to support a determination of guilt, it must be sufficiently detailed to allow the Hearing Officer to independently assess its reliability and credibility … .   The basis for the charges here were written and oral statements by inmates implicating petitioner as the thief.  There is no indication, however, that those statements were independently reviewed by the Hearing Officer, who based his determination solely upon the misbehavior report and testimony of the correction lieutenant who authored it.  Matter of Carrasquillo…, 515970, 3rd Dept 9-19-13

 

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Authenticity of Document Not Demonstrated

In finding the existence of a contract had not been demonstrated, the Second Department explained the relevant evidentiary rules concerning the authenticity of a document submitted as proof of a contract:

The general rule is that “[a] writing is ordinarily not relevant at trial unless evidence had been introduced to show that it was made, signed or adopted by a particular person” (Prince, Richardson on Evidence, § 9-101 [2008]). “A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established” … . The authenticity of a document may be established by submitting the document with a certificate of acknowledgment …, which was not done here. Nor was any other evidence submitted as to the validity of the documents in issue. Fairlane Fin Corp v Greater Metro Agency, Inc, 2013 NY Slip Op 05875, 9-18-13

 

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Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed

A mortgage foreclosure action was discontinued at the plaintiff’s request because the limited signing officer who signed the affidavit in support of plaintiff’s motion for summary judgment did not have personal knowledge of the facts.  The defendant then cross-moved for summary judgment based on the plaintiff’s papers.  In explaining that Supreme Court should not have granted summary judgment to the defendant dismissing the action, the Second Department wrote:

…[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment…, not a ground to dismiss the action. [Defendant] failed to establish grounds to dismiss the action against her with prejudice, and there is no basis in this record supporting that request for relief. Accordingly, the Supreme Court improperly granted that branch of [defendant’s] cross motion which was, in effect, to dismiss the action against her with prejudice… . GMAC Mtge LLC v Bisceglie, 2013 NY Slip Op 05878, 2nd Dept 9-18-13

 

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Defendant Did Not Consent to Entry of Police Into His Home—the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary—Motion to Suppress Should Have Been Granted

The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote:

When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the “heavy burden” of establishing that such consent was freely and voluntarily given … . “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” … . The People’s burden of proving voluntariness “cannot be discharged by showing no more than acquiescence to a claim of lawful authority” … .

We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant’s release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant’s acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13

 

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Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination

In affirming the arbitrator’s recommendation a teacher should be terminated for making death threats against an arbitrator in a prior disciplinary proceeding, the First Department noted that hearsay can be the basis for an administrative determination and explained the threats were not protected by the First Amendment:

We reject petitioner’s allegations that the instant disciplinary proceeding and the ultimate discipline imposed against him violated the right to free speech under the First Amendment to the United States Constitution. Supreme Court properly deferred to the arbitrator’s finding that petitioner’s statements are exempt from First Amendment protection because they constitute “true threats.” We note that petitioner’s former attorney only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. Under the circumstances, it cannot be argued that petitioner’s speech implicates matters of public concern … . Nor can it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding… . Matter of Smith v New York City Dept. of Educ., 2013 NY Slip Op 05765, 1st Dept 9-3-13

 

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