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Whether a Confidential Relationship Existed With Decedent Is a Question of Fact for the Jury; Application of Dead Man’s Statute Explained

In reversing the Surrogate’s Court verdict, the Third Department, in a decision by Justice Spain, determined that the existence of a confidential relationship with the decedent is a question of fact for the jury (Surrogate’s Court determined the existence of the relationship as a matter of law).  In addition, because the matter is to be retried, the Third Department included a useful discussion of how the Dead Man’s Statute (CPLR 4519) should be applied:

Under  the  doctrine of “‘constructive fraud,'” where  a  confidential relationship exists between  two parties to a transaction “‘such that they were dealing on unequal terms due to one party’s weakness, dependence or trust  justifiably reposed  upon  the  other  and  unfair advantage  is rendered  probable,'” the  burden  of proof  with  respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used … In determining whether a confidential  relationship  exists,  “the  existence  of  a  family relationship does  not, per se, create a presumption  of undue influence; there must be evidence of other facts or circumstances showing  inequality  or  controlling influence” … ..The  existence of such a relationship will ordinarily be  a question of fact … . *  *  *

The [Dead Man’s] statute precludes an interested party from being “examined as a witness in his [or her] own behalf or interest . . . concerning a personal transaction or communication between the witness and  the deceased person” (CPLR 4519 …). Given that the “purpose of the rule is ‘to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court’…, it   will not preclude any testimony elicited by the representative of the estate, nor does it preclude testimony of transactions between decedent and a non-interested third party …. Further, the statute’s protections with regard to a particular transaction may be waived where the representative “testifies in his [or her] own behalf concerning a personal transaction of his adversary with the deceased” or when he or she “elicits testimony from an interested party on the personal transaction in issue” …  .  Matter of Nealon, 513733, 3rd Dept 3-28-13

 

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Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. “[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but “a link in the chain of data” that assisted her in forming her opinion … . Accordingly,  Schockmel’s expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

 

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Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:

While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

 

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Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge

The defendant was charged with (and convicted of) assaulting jail deputies.  A video which may have captured at least some of the incidents was destroyed by “recording over” after 30 days, a jail policy. A request for any relevant electronic surveillance was made in the omnibus motion.  The indictment included incidents in November, 2006, and January, 2007. By the time the omnibus motion was made, only the video of the January incident was still available (pursuant to the 30-day “record over” policy).  The trial court agreed to give an adverse inference charge with respect to the January incident, but refused to give the adverse inference charge for the November incident.  The appellate division determined the adverse inference charge needn’t have been given because there was no evidence the video evidence would have been exculpatory.  In a full-fledged opinion by Judge Smith, the Court of Appeals reversed, finding the law of evidence required that the adverse inference charge be given:

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]) by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.  People v Handy, 35, CtApp 3-28-13

 

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Defaulting Party Can Give Testimony and Present Evidence at Damages Proceeding 

The defendant’s answer in a partition action was struck due to his failure to comply with disclosure requests and court orders.  At the inquest the defendant was allowed to cross-examine plaintiff’s witnesses but was not allowed give testimony or offer proof in mitigation of the alleged damages.  The Second Department wrote:

[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” … . Indeed, where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a ” full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'” … .  Rawlings v Gillert, 2013 NY Slip Op 02063, 2011-11951, Index No 7570/08, 2nd Dept 3-27-13

 

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Criteria for Motions to Dismiss Pursuant to CPLR 3211 Discussed in Detail

In a full-fledged opinion by Justice Dickerson, the Second Department laid out the requirements for determining a motion to dismiss pursuant to CPLR 3211(a)(7), the elements of the theory of agency, the requirements for a judgment based on documentary evidence pursuant to CPLR 3211(a)(1), and the elements of a cause of action alleging breach of a fiduciary duty.  Faith Assembly v Titledge Of NY Abstract, LLC, 2013 NY Slip Op 02046, 2011-04345, Index No 28579/09, 2nd Dept 3-27-13

 

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Handwriting Expert Not Necessary to Create Question of Fact About Authenticity of Signature

The Second Department determined the defendant had raised a question of fact about the authenticity of his signature without submitting an affidavit by a handwriting expert:

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating the existence of a promissory note executed by the defendant, the unconditional terms of repayment, and the defendant’s default thereunder … . However, in response, the defendant raised a triable issue of fact as to the validity of his signature on the note by pointing out several alleged irregularities in the document’s signature page and by submitting an affidavit on his own behalf … . While the defendant did not submit an affidavit by a handwriting expert, where, as here, the defendant has provided more than his own unsubstantiated, conclusory allegations of fraud, expert testimony is not strictly necessary, and would be more appropriate for proof at trial … .  Cooper Capital Group, Ltd v Densen, 2013 NY Slip Op 02042, 2011-06030, Index No 39107/10, 2nd Dept 3-27-13

 

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Search of Camera in Possession of the Police for Illegal Images Was Valid Even though Underlying Warrant Was Issued In a Case Closed Before the Search

In a search, the defendant’s computer and camera were seized.  Based on a picture found on the computer, the defendant pled guilty to possessing a sexual performance of a child.  After his sentence was served and after the time to appeal had elapsed defendant’s attorney contacted the prosecutor and asked for defendant’s seized camera to be returned. At that time the camera was analyzed for the first time and images found on the camera were the basis for the predatory sexual assault conviction that was before the Court of Appeals. The defendant moved to suppress the images found on the camera arguing that at the time the images were found the authority provided by the warrant under which the camera was seized had lapsed, making the search of the camera illegal.  In a full-fledged opinion by Judge Lippman, the Court of Appeals determined that the defendant had no expectation of privacy in the contents of the seized camera, and, therefore, the search of the camera did not violate the Fourth Amendment.  Judge Lippman noted that “it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding…”.  Here, the Court determined, a legitimate law enforcement purpose existed at the time the analysis of the camera was done.  The camera could not be returned until it was determined no illegal images were contained in it. People v DeProspero, 44, CtApp 3-26-13

SEARCH AND SEIZURE, SUPPRESS, SUPPRESSION

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In a Sexual Abuse Case, Prosecutor’s Hypothetical Questions to Expert Which Mirrored Complainant’s Testimony Constituted Improper Bolstering

In another “sexual abuse” opinion by Judge Pigott, the Court of Appeals, as it did in People v Diaz (decided the same day), determined the expert’s testimony about Child Sexual Abuse Accommodation Syndrome, which included explanations about how an abuser gains the trust of the victim and encourages secrecy, etc., was admissible.  But here the prosecutor followed up the expert’s general testimony with hypothetical questions which mirrored the victims’ testimony.  The Court of Appeals determined the hypothetical questions constituted improper bolstering (but held the testimony to be harmless error under the facts):

We agree with defendant …that the expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible – even though the witness began his testimony claiming no knowledge of the case before the court.  People v Williams, 53, CtApp 3-26-13

 

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Expert’s Testimony About the Behavior of Sexual Abusers Is Proper/Exclusion of Testimony About Complainant’s Prior False Allegations of Sexual Abuse Was Reversible Error

In an opinion by Judge Pigott, the Court of Appeals affirmed the appellate division’s reversal of defendant’s sexual abuse convictions.  The Court of Appeals disagreed with the appellate division and determined expert testimony allowed by the trial court about how sexual abusers gain the trust of their victims was admissible. But the Court of Appeals went on to find (agreeing with the appellate division) that the trial court’s exclusion of testimony (by Martinez) about the complainant’s prior allegedly false accusations of sexual abuse was reversible error.  On these two issues, Judge Pigott wrote:

Expert testimony is properly admitted if it helps to “clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . Here, it was not an abuse of discretion for the trial court to permit expert testimony regarding the behavior of sexual abusers. That testimony is permissible as helpful for the jury to understand victims’ unusual behavior … . Although some of the testimony discussed behavior similar to that alleged by the complainant in this case, the expert spoke of such behavior in general terms … . In addition, the jury heard the expert testify that she was not aware of the facts of the particular case, did not speak with the complainant and was not rendering an opinion as to whether sexual abuse took place.

We agree with the Appellate Division, however, that the proffered testimony of Martinez should have been permitted at trial. Evidence of a complainant’s prior false allegations of sexual abuse is not inadmissible as a matter of law . Rather, it may be permitted if the prior allegations “suggest a pattern casting substantial doubt on the validity of the charges” … .

Here, Martinez’s proposed testimony went to a material issue of defendant’s defense, namely, whether the complainant had a history of making false allegations of sexual abuse by family members. Defense counsel sought to introduce the testimony as a prior inconsistent statement; to confront the complainant’s testimony that she never made an allegation against Martinez and to rebut the testimony of the complainant’s mother who testified she was unaware of any accusation made by complainant against Martinez. These statements opened the door to Martinez’s rebuttal, which, if believed, suggested that the testimony of the complainant and her mother were not credible.  People v Diaz, 52, CtApp 3-26-13

 

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