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Text Messages Authenticated Because They “Made No Sense” Unless Defendant Sent Them

The Second Department determined the content of text messages was admissible (i.e., authenticated) because the messages “made no sense” unless sent by the defendant:

…[T]he text messages from the defendant to the complainant were properly admitted into evidence. Since the content of the text messages “made no sense unless [they were] sent by defendant” …, the text messages themselves were sufficient to authenticate that they were sent by the defendant … .  People v Green, 2013 NY slip Op 04623, 2nd Dept, 6-19-13

 

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Anonymous 911 Call Admitted Under Excited Utterance and Present Sense Impression Hearsay Exceptions

The Second Department determined a 911 recording of an anonymous caller was admissible under the excited utterance and present sense impression exceptions to the hearsay rule and the admission of the recording did not violate defendant’s right to confrontation:

The recording satisfied the excited utterance exception to the hearsay rule, since it evidenced that the caller was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication…. Contrary to the defendant’s contention, the recording was also properly admissible as a present sense impression, since the caller’s statements were sufficiently contemporaneous … and were corroborated by the evidence adduced at trial…. Additionally, the admission of the recording did not violate the defendant’s right to confrontation. The call was nontestimonial in nature, since its primary purpose was to obtain an emergency response to the shooting….  People v Dockery, 2013 NY Slip Op 04621, 2nd Dept, 6-19-13

 

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Error to Impeach Defendant Re: Failure to Offer Exculpatory Version to Police; Error to Comment on Defendant’s Post-Arrest Silence (Harmless However)

The First Department determined it was error for County Court to have allowed the prosecutor to impeach defendant with his failure to present to the police an exculpatory version of events and to allow the prosecutor to comment upon defendant’s post-arrest silence:

County Court erred in allowing the prosecution, over the defendant’s objection, to impeach the defendant’s testimony with his failure to come forward to the police with an exculpatory version of the events, and in allowing the People to comment upon the defendant’s post-arrest silence in summation ….  People v Copp, 2013 NY Slip Op 04619, 2nd Dept, 6-19-13

 

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Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent’s admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert’s reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court’s appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

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Oral Evidence in Quantum Meruit Case Rejected by Appellate Court

In vacating a damages award in a quantum meruit case, the Fourth Department concluded the self-serving oral proof offered by plaintiff should not have been accepted as sufficient by the trial court and that the defendants’ proof of the value of plaintiff’s work should be the basis of damages award:

Plaintiff is correct that “[p]roof of damages may be based upon oral testimony alone, so long as the witness has knowledge of the actual costs”…, and that the customary means of calculating damages on a quantum meruit basis in a construction case is actual job costs plus profit minus amount paid…. Nevertheless, we cannot conclude that the court’s award of $31,720 is supported by a fair interpretation of the….    That award was based on plaintiff’s self-serving testimony and invoice, while defendants presented the testimony and estimates of three nonparty witnesses establishing that plaintiff’s work was not worth more than $8,290.    Under the unique circumstances of this case, i.e., the seven-month lapse between the time that plaintiff completed the project and the time that he drafted and tendered the invoice to defendants, we conclude that the proper remedy is to adopt the highest of the project estimates from defendants’ trial witnesses as the basis for the award of damages … SJ Kula, Inc v Kevin Carrier…, 520, 4th Dept, 6-14-13

 

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Statute of Limitations Tolled Until Defendant Identified by DNA; Police Had “Tacit Consent” to Enter Apartment

The Fourth Department determined the statute of limitations was tolled until defendant was identified through DNA collected in an unrelated conviction.  In addition, the Fourth Department determined the police had “tacit consent” to enter defendant’s apartment:

Here, “[t]he record supports the court’s determination that the identity of defendant as the sexual assailant, and thus his whereabouts, were not ascertainable by diligent efforts” before 2008, when the State DNA Indexing System matched the DNA profile from the semen found on the victim’s night shirt with DNA obtained from defendant in conjunction with an unrelated 2007 conviction … .  * * *

Even assuming, arguendo, that there was a warrantless arrest of defendant in his apartment, we note that it is well settled that “tacit consent by a person with apparent authority . . . [is] sufficient to obviate any possible violation of the Payton rule”…. Here, the People established that the police officers entered the apartment with the consent of defendant’s father…. Although “the police may not have received express permission to enter the premises, [the] gesture [of defendant’s father] of opening the door, leaving it wide open, and then walking  away from it could certainly be interpreted by the police to consist of tacit approval for them to enter”….  People v Sigl, 716, 4th Dept, 6-14-13

 

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Statement Not Tainted by Unwarned Statement Made an Hour Before; Failure to Inform Defendant of Post Release Supervision Did Not Require Reversal

The Fourth Department determined County Court properly denied a motion to suppress a statement, finding that the statement was not tainted by an unwarned statement made an hour earlier.  In addition, over a two-justice dissent, the Fourth Department held that the failure to explain the five-year post release supervision (PRS) portion of the sentence when the plea was taken did not require reversal, in part because the error was not preserved:

Although defendant made an inculpatory statement after she was placed in a patrol vehicle and additional inculpatory statements after she was transported to the police station, the court granted suppression of the statement made in the patrol vehicle on the ground that her detention constituted an arrest for which the police officer lacked probable cause. The court refused, however, to suppress the subsequent statements at the police station based on its determination that they were “attenuated from the unlawful arrest.” We agree with the People that the record supports the court’s determination .. . Although there was a period of only one hour between the time of the illegal arrest and the time of defendant’s statements at the police station …, we note that defendant was given Miranda warnings before the stationhouse interview … Moreover, the victim’s identification of defendant as the perpetrator constitutes a significant intervening event … inasmuch as that identification provided the police with probable cause for defendant’s arrest…  Lastly, there was no flagrant misconduct or bad faith on the part of the police officer who took defendant into custody … . * * *

In this case the prosecutor informed the court,“ ‘before the imposition of sentence’ ” (…see generally CPL 220.60 [3]), that he could not recall whether PRS had been discussed at the time of the plea. The prosecutor noted that they “should probably make a record of that . . . so it is clear.” At that point, the court informed defendant that it “intend[ed] to make a five year period of [PRS].” Defendant was then asked if she had a chance to talk about that with her attorney, and defendant answered, “[y]es.” Defendant was also asked if she understood that the PRS was a “part of [her] plea” and that she would be on parole supervision for five years at the end of her prison sentence. Defendant answered, “[c]orrect.”  When asked if she “still wish[ed] to go through with sentencing today,” defendant again answered, “[y]es.” In our view, the record is clear that “defendant could have sought relief from the sentencing court in advance of the sentence’s imposition…”… .  People v Turner, 529, 4th Dept, 6-14-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound:

[We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC at a particular point  in time, renders  an  opinion  as  to  the  individual’s BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be….  Here, however, the People failed to lay a proper factual foundation for [the expert’s] testimony and, therefore, defendant’s objection in this regard should have been sustained.  People v Menegan, 105337, 3rd Dept, 6-13-13

 

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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error was harmless under the facts:

“….[A]ssuming, without deciding, that the full terms of Henry’s cooperation agreement – including those aspects pertaining to the other matter – were Brady material subject to disclosure, reversal is not required.   Where, as here, nondisclosure follows the defense’s specific request for materials, evidence is deemed material and reversal is required only “if there is a ‘reasonable possibility’ that, had that material been disclosed, the result would have been different”… . People v Johnson, 104919, 3rd Dept, 6-13-13

 

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