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Conviction Reversed Because of Improper Cross-Examination by Prosecutor; Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:

The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … .People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

PROSECUTORIAL MISCONDUCT

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Damages for Breach Must Be Awarded Even if Amount Uncertain

The First Department determined the trial court erred when it did not award damages for breach of contract because the amount of damages was uncertain:

Where, as here, “it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain” … .  Here, plaintiff’s expert used an investment valuation analysis because he determined that there was no market for the 76th Street property, a conclusion with which the lower court agreed. Despite this agreement, the court, mistakenly believing that this Court’s previous order required a market value analysis even if no such market existed, found that plaintiff failed to meet his burden of proof. This was error, especially where, as here, the court had the means to make a market value determination if it so desired.  Cole v Makclowe, 2013 NY Slip Op 02690, 604784/99, 1565, 1st Dept, 4-23-13

 

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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

SUPPRESS

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Denial of Receipt of Service Mandates a Hearing 

In determining the affidavit of service of a complaint in a foreclosure action had been rebutted by the appellant’s sworn denial (requiring a hearing), the Second Department wrote:

Where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence …. In order to warrant a hearing on the issue of service, a defendant must swear to detailed and specific facts to rebut the statements in the process server’s affidavit ….

Here, the Supreme Court erred in determining the motion without first conducting a hearing, as the appellant demonstrated his entitlement to a hearing on the issue of service by his sworn denial, setting forth significant discrepancies between the age and weight of the person allegedly served and the appellant’s actual age and weight at the time of the purported service …. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) ….  Emigrant Mtge Co, inc v Westervelt, 2013 NY Slip Op 02536, 2012-08302, Index No 2031/09, 2nd Dept, 4-17-13

 

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Child’s Out-Of-Court Statements Insufficient to Support Abuse Finding

In affirming Family Court’s determination that the child’s out-of-court statements were not sufficiently corroborated to support a finding of abuse by the father, the Second Department wrote:

A child’s out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child’s statements (see Family Ct Act § 1046[a][vi];… . The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated …, and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility … .  Matter of Nicole G, 2013 NY Slip Op 02576, 2012-07263, 2012-07264, 2nd Dept, 4-17-13

 

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Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

To establish a party’s entitlement to summary judgment, a physician’s affidavit “must be detailed, specific and factual in nature” and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH “acted at all times in a prompt, timely, and reasonable manner” lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs’ opposing papers … . Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

 

 

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Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

A  “course  of treatment  speaks  to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and  physician … .Notably, a  “[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine” … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiff’s mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

 

 

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Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained

In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:

Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that was based upon his claim of newly discovered evidence.  As relevant here, “[t]o justify vacatur under  CPL  440.10 (1) (g), the newly  discovered evidence ‘must . . . be  such  as will probably change the result if a new  trial is granted . . . [and] be  material to the issue'” …. A hearing is not necessary when the court can “adequately review the matter based upon the contents of the record and the motion papers”… .  People v Carter, 104989, 3rd Dept 4-11-13

 

 

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New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge; Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child.  In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs.  The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police.  In upholding the trial court, the Third Department wrote:

In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses  [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim’s death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error.

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care.  This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries.  People v Tinkler, 103766, 3rd Dept 4-11-13

 

 

 

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Hearing Required to Determine If Complaint Properly Served

In remitting the case for a hearing to determine whether defendant was properly served with the complaint, the Second Department wrote:

Here, the affidavit of service of the plaintiff’s process server describing service of process on the defendant NES Medical Services of New York, P.C. (hereinafter NES), constituted prima facie evidence of proper service on NES … . In support of that branch of their motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction, the appellants submitted an affidavit stating that the person served was neither employed by, nor authorized to accept service for, NES. Where, as here, “there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” …. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on, and a new determination of, that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against NES on the ground of lack of personal jurisdiction. Rosario v NES Med Srvs of NY, PC, 2013 NY Slip Op 02388, 2011-10662, Index No 4465/11, 2nd Dept 4-10-13

 

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