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Expert Evidence About a “Date Rape” Drug Not Implicated in the Trial Did Not Require Reversal; Jury Deemed to Have Considered Only Evidence Supported by the Record​

In a full-fledged opinion by Justice Saxe, the First Department upheld the conviction for rape and for facilitating a sex offense with a controlled substance.  The controlled substance referenced in the indictment and the subject of proof at trial was ecstasy.  However, expert evidence of the effects of another drug, GBH, was allowed in at trial. The First Department determined the unsupported testimony about GBH did not require reversal because it could be assumed the jury relied upon the allegations supported by the evidence:

…[T]he reference in the experts’ testimony to GHB and its symptoms, and the People’s reference to that evidence in support of their summation, did not impermissibly present the jury with a new, legally inadequate theory…. Rather, at worst, the suggestion that the complainant may have also been drugged with GHB was merely a “factually unsupported theory” …. “[W]here jurors are given a choice between a factually supported and factually unsupported theory, it is assumed they have chosen the one with factual support” …. Here, we can assume that in determining whether the complainant was “rendered temporarily incapable of appraising or controlling [her] conduct owing to the influence of a narcotic or intoxicating substance administered to [her] without [her] consent,” the jurors relied on those of the People’s assertions that were supported by the evidence. People v Blackwood, 2013 NY Slip Op 03764, 2nd Dept, 5-23-13

 

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Subpoena Can Not Be Used for Discovery Purposes​

The Second Department noted that a subpoena duces tecum may not be used for discovery purposes:

“[A] subpoena duces tecum may not be used for purposes of discovery or to ascertain the existence of evidence”…. Here, the subpoena duces tecum served by the defendants improperly sought production of certain materials that the defendants had failed to seek during the discovery process, or that had previously been the subject of an unsuccessful motion to compel disclosure. Under these circumstances, the Supreme Court properly granted the separate motions of the plaintiff and the third-party defendant to quash the subpoena duces tecum … . Wahab v Agris & Brenner, LLC, 2013 NY Slip Op 03667, 2nd Dept, 5-22-13

 

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Expert’s Affidavit Should Have Been Considered in Summary Judgment Motion Even though Expert Had Not Been Disclosed​

In a slip and fall case, the defendant moved for summary judgment.  Because the plaintiff’s expert had not been previously disclosed, Supreme Court refused to consider the expert’s affidavit.  In reversing, the Second Department wrote:

 “[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” …. Under the circumstances of this case, it was an improvident exercise of discretion to refuse to consider the affidavit of the plaintiff’s expert submitted in opposition to the respondents’ motion … . Salcedo v Weng Qu Ju, 2013 NY Slip Op 03656, 2nd Dept, 5-22-13

 

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Unsigned Depositions Deemed Admissible

In a Labor Law action stemming from a fall through an open manhole, the plaintiffs submitted transcripts of one the plaintiff’s deposition testimony as part of plaintiffs’ motion for summary judgment on liability. Supreme Court denied plaintiffs’ motion on the ground that the certified deposition transcripts submitted by them were not signed.  In determining that Supreme Court should not have denied plaintiffs’ motion on that ground, the Second Department wrote:

By submitting the transcript of [plaintiff’s] deposition, the plaintiffs adopted it as accurate …. Further, the … defendants … did not challenge the accuracy of any of the transcripts submitted by the plaintiffs …. Consequently, those deposition transcripts were admissible ….  Carey v Five Bros, Inc, 2013 NY Slip Op 03626, 2nd Dept. 5-22-13

 

 

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Conviction for Possession With Intent to Sell Against Weight of Evidence​

In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:

…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell.  People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12

 

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Children’s Hearsay Alleging Abuse by Father Was Not Corroborated; Change in Custody Should Not Have Been Granted

In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody:

Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated …. *  *  * Because the  children’s out-of-court statements were not corroborated, Family Court’s finding of a change in circumstances lacks a sound and substantial basis in the record.  Matter of Zukowski v Zukowski, 514074, 3rd Dept, 5-16-13

 

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Gang Affiliation and Prior Drug Offenses Admissible Under Molineux in Murder Case/Motion to Suppress Statement Made When Questioning Continued After Defendant Stated He Did Not Want to Answer Any More Questions Should Have Been Granted

The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux.  In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed.  [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:

“Generally speaking, evidence of uncharged  crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .

The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether  a defendant’s  request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to  the  circumstances surrounding  the  request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .  People v Johnson, 104081, 3rd Dept, 5-16-13

SUPPRESSION, SUPPRESS

 

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Existence of Brady Material Concerning Law Suit Against Interrogating Officer for Eliciting a False Confession Required Hearing on Motion to Vacate Judgment of Conviction

The defendant claimed that his confession was involuntary because he was physically abused by the interrogating officer (O’Leary). After his conviction for depraved indifference murder the defendant brought a motion to vacate the conviction on the ground that the interrogating officer had been sued for allegedly extracting a false confession and the prosecution did not provide that “Brady” material to him.  In reversing the trial court’s denial of the motion to vacate and remitting the matter for a hearing, the Second Department wrote an exhaustive overview of the law concerning “Brady” material in New York.  Although rather long, the court’s explanation is provided here because of its clarity:

A defendant is entitled, under the state and federal constitutions, “to discover favorable evidence in the People’s possession material to guilt or punishment”)…. Indeed, the law requires that Brady material be produced whether or not the defendant requests any such evidence …. To establish a Brady violation, the “evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued” because the evidence was material … .

Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence…. Moreover, the People’s failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence , for instance, providing a basis for the disclosure of police personnel records otherwise unavailable … .

“In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility’ that it would have changed the result of the proceedings” ….”Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a reasonable probability’ that it would have changed the outcome of the proceedings” …. Here, the record does not demonstrate that the defendant made a specific request for the allegedly suppressed information. Nevertheless, we find that there was a “reasonable probability” that disclosure of the lawsuit would have changed the outcome of the defendant’s trial. The primary evidence at trial establishing the defendant’s identity as the murderer was his confession. The other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared. Since the credibility of the detectives who obtained the defendant’s confession was of central importance in the case, the nondisclosure was material … .

Accordingly, a hearing is necessary to determine whether the District Attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady. Evidence subject to disclosure under Brady includes evidence “known only to police investigators and not to the prosecutor”…, and, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in th[is] case, including the police” … ;This rule is based upon the principle that “[t]he government cannot with its right hand say it has nothing while its left hand holds what is of value” …. Here, the attorney’s affirmation submitted in opposition to the defendant’s motion, which was based only on a review of files, is insufficient to establish that no one to whom the obligation under Brady extended, other than perhaps O’Leary himself …, had knowledge of the civil action at any time during which the prosecution’s Brady obligation was ongoing.   People v Garrett, 2013 NY Slip Op 03498, 2nd Dept, 5-15-13

 

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Plaintiff Unable to Demonstrate Freedom from Comparative Negligence as a Matter of Law; Plaintiff’s Motion for Summary Judgment in Automobile Accident Case Denied

In affirming the denial of plaintiff’s motion for summary judgment on liability in an automobile-accident case, the Second Department explained the plaintiff failed to demonstrate freedom from comparative negligence as a matter of law:

“There can be more than one proximate cause [of an accident] and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” …. While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield…, the operator traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles…. The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to submit evidence eliminating a triable issue of fact as to whether she contributed to the happening of the accident…. Since the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, her motion was properly denied regardless of the sufficiency of the defendant’s papers in opposition… .  Regans v Baratta, 2013 NY Slip Op 03468, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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Passenger in Car of Which Plaintiff Lost Control in Snowy Conditions Entitled to Summary Judgment

In finding Supreme Court should have granted summary judgment in favor of the passenger-plaintiff, who was injured when the driver-defendant lost control of his car and struck a fence, the Second Department wrote:

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidence that this was a one-car accident which occurred when Rajput [defendant] lost control of the vehicle he was driving…. “An innocent passenger . . . who, in support of [his or] her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation” ….
In opposition, the defendants failed to raise an issue of fact sufficient to defeat summary judgment. Since Rajput acknowledged in his affidavit that it was snowing heavily at the time of his accident, and that he was aware of wet and icy road conditions, the emergency doctrine is inapplicable …. Furthermore, the affidavit, which failed to specify at what speed Rajput was actually driving before his vehicle skidded, was insufficient to establish that he was driving with reasonable care, and thus raise a triable issue of fact as to whether the skid was unavoidable … .  Mughal v Rajput, 2013 NY Slip Op 03466, 2nd Dept, 5-15-13

TRAFFIC ACCIDENTS

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