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Introduction of Statements Made to Police In Absence of Counsel When Defendant Was Represented by Counsel on a Another Matter Deemed Harmless Error

The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel:

While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. Defendant claims that his constitutional right to counsel was violated because he was represented by counsel on the VOP at the time, as evidenced by the notation made on an arraignment memorandum by the Town Justice who arraigned him on the VOP.

Assuming, without deciding, that defendant’s indelible right to counsel was violated, any error was harmless beyond a reasonable doubt…. There is no reasonable possibility that the introduction of the two challenged statements affected defendant’s conviction in view of the other evidence, including two counseled statements to police and testimony of numerous witnesses, that overwhelmingly established his guilt.  People v Augustine, No 109, CtApp, 6-6-13

 

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Audiotaped Sworn Statement of Witness Admitted Because Defendant Caused Witness to Be Unavailable

After a Sirois hearing, the trial court found sufficient circumstantial evidence that the defendant had caused a witness’ unavailability and allowed in evidence (in the People’s case-in-chief) an audio recording of the witness.  In affirming, the Second Department wrote:

…[T]he Supreme Court properly admitted a sworn audiotaped statement from Timothy Dixon as evidence during the People’s case. A witness’s out-of-court statements may be admitted as part of the People’s direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness’s unavailability”…. “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination”…. People v Leggett, 2013 NY Slip OP 04028, 2nd Dept, 6-5-13

 

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Post-Offense “Bad Acts” Erroneously Admitted (Harmless Error)

The Second Department determined bad acts committed after the charged crime should not have been admitted, although the error was deemed harmless:

The Supreme Court …improvidently exercised its discretion in permitting the admission of evidence relating to two bad acts allegedly committed by the defendant subsequent to the charged crime, since the probative value of such evidence was minimal, and was outweighed by its prejudicial effect… . People v Addison, 2013 NY Slip Op 04015, 2nd Dept, 6-5-13

 

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Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing

The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:

“Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits'”…. Since the appellant never denied the specific facts contained in the process server’s affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13

 

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Defendant Handcuffed, Post-Arrest Search of Backpack Unlawful

In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote:

The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, which included a pair of pliers and unused garbage bags, should have been suppressed because even where a container is not in the exclusive control of the police, exigency justifying its search incident to arrest is not established in the absence of “some reasonable basis for the belief that the contents of those containers might pose a danger to the arresting officers or when there is legitimate concern for the preservation of evidence which might reasonably be thought to reside within the containers”….  People v Diaz, 2013 NY Slip Op 03937, 1st Dept, 6-4-13

SUPPRESSION

 

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8-Hour Break in 49 ½ Hour Interrogation Did Not Render Confession Voluntary

In a full-fledged opinion by Chief Judge Lippman, the Court of Appeals determined an 8-hour break and the presence of counsel, after a 491/2-hour custodial interrogation, did not render his confession to murder voluntary and reversed his conviction:

We are unwilling to draw the inference, which the People would have us make, that the eight-hour “break” between interrogation and arraignment attenuated the taint of the wrongful interrogation. Defendant’s pre- and post-arraignment statements were, despite their temporal separation, in all other ways seamlessly linked. At the end of the marathon session, the utterly spent defendant, in exchange for a lawyer to which he was absolutely entitled, agreed in a statement ultimately suppressed as coerced, to “give everybody what they want,” and when he returned to the Blue Room on the morning of the same day and faced the same interrogator across the same table, that is exactly what he did. We do not accept the hypothesis that his intervening stay in a holding pen and arraignment on the charge of murder sufficed to transform his coerced capitulation into a voluntary disclosure. By the time of defendant’s post-arraignment statements, his options would have seemed so constricted, by what he had already divulged during the earlier portion of the interrogation, as to render the intervening temporal buffer practically irrelevant. …

…[W]e reject the contention that the entry of counsel guaranteed the voluntariness of defendant’s subsequent statements …. This contention misconstrues the statement in Miranda v Arizona (384 US 436 [1966]) that “[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion” (id. at 466 [emphasis supplied]). Plainly, this language, expressly limited in its reference, was not intended to stand for the proposition that the presence of counsel will invariably be adequate as an assurance of voluntariness.  People v Guilford, No 103, CtApp, 6-4-13

SUPPRESSION

 

 

Preclusion Proper Remedy for Discarding of Computer Containing Crucial Evidence​

The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence:

Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s assignment of a special referee to supervise discovery, plaintiff delayed discovery and did not disclose to defendants that it had discarded the subject computer for almost two years, notwithstanding that such disclosure was specifically requested by defendants. Further, the testimony of plaintiff’s bookkeeper that a litigation hold, either written or oral, was never issued directing him to preserve electronic data, supports a finding that plaintiff’s disposal of the subject computer was, at the very least, grossly negligent ….  Defendants established that plaintiff’s spoliation of critical evidence compromised defendants’ ability to prosecute their counterclaims … . Accordingly, the court did not abuse its discretion in determining that preclusion was an appropriate spoliation sanction. Harry Wiess, Inc v Moskowitz, 2013 NY Slip Op 03927, 1st Dept, 5-30-13

 

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“Exigent Circumstances” Exception to Search Warrant Requirement Applied

In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows:

The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(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. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” … .  The United States Supreme Court has since eliminated the intent element for 4th Amendment purposes … .  People v Musto, 105008, 3rd Dept, 5-30-13

 

 

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Relationship Between Defendant’s Act and Fatal Car Accident Too Attenuated to Support Criminally Negligent Homicide

The Third Department determined that the relationship between the defendant’s act and a fatal car accident was too attenuated to support a conviction for criminally negligent homicide.  The defendant, a passenger, jerked the steering wheel, apparently in an attempt to intimidate or strike a car that was along side of the car defendant was in.  The car defendant was in struck a guard rail and caused the blockage of one lane of traffic.  The one car accident caused traffic to back up.  30 minutes later the fatal accident occurred.  The Third Department wrote:

“[A]n act ‘qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'”… .   A connection between the conduct and the death that is obscure or “merely probable” will not suffice ….  On the other hand, we note that the mere lapse of time will not  necessarily serve to break the chain of causation … .  Nor  does  a  defendant’s conduct  need  to be  the  sole cause  of death  in order  for criminal responsibility to attach ….  * * *

Here, the People failed to present evidence directly linking defendant’s act to the victims’ deaths …. Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was  a foreseeable result of the initial accident … . People v Ballenger, 104664, 3rd Dept, 5-30-13

 

 

 

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Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

 

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