Evidence – Page 385 – New York Appellate Digest

Throwing Objects Off Balcony Evinces Depraved Indifference.

The defendant, who claimed to have been intoxicated at the time, threw bottles and plates off a 26th floor hotel balcony overlooking 7th Avenue during morning rush hour. He was convicted of first degree reckless endangerment, which requires a “depraved indifference to human life.” In affirming the conviction, the First Department, in a full-fledged opinion by Justice Friedman, included a substantive discussion of the relationship among the legal concepts “depraved indifference,” ” recklessness,” and “specific intent to cause harm.” In addition, the Court found sufficient “exigent circumstances” to justify the warrantless entry by the police into defendant’s hotel room. People v Green, 7860, Ind. 4295/05 First Dept. 1-22-13.

January 22, 2013

Appeals, Criminal Law, Evidence

“Weight of the Evidence” Review.

The Third Department upheld the defendant’s rape conviction in a full-fledged opinion by Justice Spain. The case is interesting because it is a true “weight of the evidence” analysis where the appellate court conducted “a full review of the testimony adduced at trial,” acting in the role of a jury. There was a strong dissent which argued the conviction should be reversed because the trial judge did not turn over to the defense certain records concerning the complainant’s mental health after an in camera review. People v McCray, 103682 Third Dept 1-17-13

January 17, 2013

Appeals, Criminal Law, Evidence

Preservation of Error, DNA Expert, Confrontation Clause.

Defendant’s claim that a DNA analyst’s expert testimony violated the Confrontation Clause because it was based on reports made by non-testifying witnesses was rejected, principally because the claim was deemed unpreserved. There is a substantive discussion of preservation requirements. The Court, however, noted that the Court of Appeals held a similar DNA report was nontestimonial for Confrontation Clause purposes. People v Rios, 7651, Ind. 1037/08 First Dept. 1-15-13.

January 15, 2013

Civil Procedure, Evidence, Negligence

Assault in Medical Facility, Spoliation of Evidence.

Plaintiff, a patient at defendant medical center, was assaulted by another patient. Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape. The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business. The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.” The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh. The appropriate sanction was an adverse inference charge to the jury. Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13

January 9, 2013

Criminal Law, Evidence

Post-Conviction Review of Redacted Portions of Officer’s Notes Ordered.

After conviction, the inference that redacted portions of the arresting officer’s memo book constituted Rosario material warranted an in camera review of the memo book to determine whether the deleted portions constituted Rosario material and whether the nondisclosure prejudiced the defendant. People v Perry 8933 Ind. 1054/09 First Dept. 1-3-13

January 3, 2013

Criminal Law, Evidence

Pat-Down Search Justified by the Objective Existence of Probable Cause to Arrest, Even Though the Officer Did Not Intend to Arrest at the Time of the Search.

In a full-fledged opinion by Justice Saxe, the First Department determined that a pat-down search was justified because probable cause for arrest existed (for DWI) even though the officer did not intend to arrest the defendant, whom he had just directed to step out of his car, at the time of the search. The Court wrote:

This appeal addresses whether suppression should have been granted where the police stopped defendant’s car for a traffic infraction, and, based on what the arresting officer heard and observed, defendant was asked to exit the car and patted down; he was placed under arrest only after a knife was found in his pocket. Because the arresting officer candidly admitted that he had not intended to arrest the driver before discovering the knife, defendant contends that the officer lacked the requisite predicate for the search and that therefore we must suppress the knife and other fruits of the search that followed. We disagree.

The arresting officer’s factual testimony … established that the necessary predicate existed for each step taken by the officer. Because … we find that at the time of the patdown the officer actually had probable cause to arrest defendant for driving while intoxicated, the search was permissible and the fruits of the search were admissible. While we rely on the factual testimony of the arresting officer, we are not bound by his subjective assessment at the time regarding the nature and extent of his authority to act. * * *

…[W]e conclude that, even if the police are incorrect in their assessment of the particular crime that gives them grounds to conduct the search, or if they incorrectly assess the level of police activity that is justified by their knowledge, where the facts create probable cause to arrest, a search must be permissible. People v Reid, 7360 Ind. 717/09 First Dept. 1-3-13.