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Loss of Teeth is “Serious Injury” Re: Assault Second

The First Department determined the loss of teeth (in an assault) was a “serious injury” within the meaning of Penal Law 10.00 (10) because the loss of teeth constituted a “serious and protracted disfigurement” notwithstanding replacement by a prostheses:

The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim’s permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ … . Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious …, this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim’s loss of four front teeth also constituted a “serious and protracted disfigurement,” since “a reasonable observer would find her altered appearance distressing or objectionable” … . The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.  People v Everett, 2013 NY Slip Op 06954, 1st Dept 10-24-13

 

 

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Effect of Witness’ Invocation of Fifth Amendment Privilege on Fairness Explained

The Second Department explained when a witness’ asserting the privilege against self-incrimination constitutes reversible error and noted that the introduction of a photograph of the murder victim when he was alive was (harmless) error:

“[A] witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding critical weight’ to the prosecution’s case in a form not subject to cross-examination” … . “Absent a conscious and flagrant attempt by the prosecutor to build a case out of the inferences arising from the use of the testimonial privilege or without some indication that the witness’s refusal to testify adds critical weight to the People’s case in a form not subject to cross-examination, reversal is not warranted” … . Under the circumstances presented here, invocation of the Fifth Amendment privilege against self-incrimination by a prosecution witness did not add critical weight to the prosecution’s case, and the defendant was not deprived of his right to a fair trial by that testimony… .  People v Berry, 2013 NY Slip Op 06872, 2nd Dept 10-23-13

 

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Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13

 

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Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness

The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available:

The evidence, including testimony from a court-appointed psychologist who examined respondent mother, provided clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c], [6][a]…). The psychologist testified that respondent mother suffers from, inter alia, bipolar disorder, which interferes with her ability to care for the child, placing the child at risk of becoming neglected if she is returned to her mother’s care. Moreover, respondent mother’s testimony confirms that she lacks insight into the nature and extent of her mental illness … .

Contrary to respondent mother’s contention, the Family Court properly exercised its discretion by drawing a negative inference against her for failing to call her treating physician or other medical providers to rebut the allegations raised in the petition and by the testimony after she expressed an intention to call her providers … .

The Family Court did not err in denying respondent mother’s application for a suspended judgment. This dispositional alternative is not available after a fact-finding determination of mental illness (see SSL § 384-b [3] [g], [4] [c]…). Matter of Love Joy F, 2013 NY Slip Op 06792, 1st Dept 10-17-13

 

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Parental Rights Termination Based Upon Mental Illness Reversed—Psychologist’s Report Included Inadmissible Hearsay

The Third Department reversed Family Court’s determination that mother’s parental rights should be terminated based upon her mental illness. The psychologist’s (Liotta’s) report, upon which Family Court based its ruling, should not have been admitted in evidence because it included inadmissible hearsay:

Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” … .  While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not.  Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations.  Respondent objected on hearsay grounds to Liotta’s testimony about these interviews and to the admission of his report – which contained detailed accounts of each interview – but the court overruled these objections.  Moreover, when respondent’s counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so.  As a result, no proper foundation was laid for the admission of Liotta’s testimony or his report… . Matter of Dakota F …, 513066, 3rd Dept 10-17-13

 

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Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, CtApp 10-17-13

 

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People Failed to Prove Seizure of Cocaine at Police Station Was Not the Fruit of the Illegal Arrest—Attenuation Not Demonstrated

The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree).  At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police station.  County Court’s finding that the “attenuation” doctrine supported the legitimacy of the seizure at the station was therefore not supported by the record:

Under well-established exclusionary rule principles, where police have engaged in unlawful activity – here, by arresting defendant without probable cause – evidence which is a result of the “exploitation of that illegality” is subject to suppression as the “fruit of the poisonous tree” unless one of the recognized exceptions to the exclusionary rule is applicable … .  The exception at issue here, as specifically decided by County Court thereby preserving the issue for appeal (see CPL 470.05 [2]…), is attenuation, that is, whether the production of the cocaine evidence during defendant’s illegal detention resulted from the exploitation of that illegality, directly or derivatively … .  The focus of the attenuation exception is “on the presence or absence of ‘free will’ or voluntariness regarding a defendant’s . . . acts which follow illegal police conduct; thus, the attenuation inquiry resolves whether the causal connection between the police misconduct and the later discovery of the challenged evidence is so far removed as to dissipate the taint” … .  “That determination requires consideration of the temporal proximity of the arrest and [acquisition of evidence] . . ., the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” … .

Given the complete lack of testimony at the Dunaway hearing regarding the post-illegal-arrest incident at the police station – including any intervening circumstances – in which cocaine evidence was reportedly seized from defendant’s person, we find that the People failed to satisfy their burden of proving the applicability of the attenuation exception.  That is, the People did not prove that the evidence was not acquired by exploiting the illegal arrest but, rather, came about by means “sufficiently distinguishable from [the illegality] to be purged of illegality” … . Thus, County Court’s finding of attenuation is not supported by the hearing record.   People v Small, 103485, 3rd Dept 10-17-13

 

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Emergency Doctrine Applied—Statements Made to Police and Overheard by Police Not Suppressible

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend and his prior request for counsel rendered those statements suppressible. The majority held that the conversation with the friend was not police interrogation because there was no police involvement and the conversation was not a ploy by the police to elicit information from the defendant.] When the police encountered the defendant his clothes had wet blood on them and blood was found in defendant’s vehicle. The emergency doctrine applied because the police were justified in questioning the defendant to determine if someone was injured and needed help:

As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings or after the right to counsel attaches … .  There are exceptions to these principles, one of which is referred to as the “emergency doctrine” … . It recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” …, thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation … .  We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … .  People v Doll, 141, CtApp 10-17-13

 

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Insufficient Evidence to Warrant Jury Charge on Intoxication Defense

The Court of Appeals affirmed defendant’s rape conviction finding that defendant presented insufficient evidence to warrant a jury charge on the intoxication defense:

Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25).  An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant …, “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element . . . on that basis” … .  In order to meet this “relatively low threshold,” defendant must present evidence “tending to corroborate his claim of intoxication, such as the number of drinks, the period of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state” … .

Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication.  Defendant’s bare assertions concerning his intoxication were, by themselves, insufficient … .  Nor did his statement to police and the victim’s testimony that she smelled alcohol on his breath corroborate defendant’s claim.  While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant’s conduct was purposeful.  He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police.  Given this evidence, the court correctly ruled an intoxication charge was not warranted. People v Beaty, 148, CtApp 10-17-13

 

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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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