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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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Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

 

 

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Notice of Intention to Offer Molineux Evidence During Jury Selection and Molineux Hearing Upon Completion of Jury Selection Are Timely

The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely:

According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the potential impact of that evidence on voir dire. It is well settled that “a defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on the admissibility of such evidence” … . People v Holmes, 258, KA 09-01281, 4th Dept. 3-22-13

 

 

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Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

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Failure to Identify Notice Witness, Erroneous Missing Witness Charge and Erroneous Preclusion of Evidence Required Reversal.

A judgment in favor of the plaintiff after trial was reversed by the First Department because: (1) plaintiff’s son, a notice witness who testified about the alleged defective condition at the core of the lawsuit, had not been identified before trial; (2) a missing witness charge re: a purported employee of the defendant was given in the absence of proof of the employee’s existence; and (3), the testimony of defense witnesses was erroneously precluded or limited.  Collazo v Riverbay Co-op, 2013 NY Slip Op 01904, First Dept. 3-21-13

 

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Criteria for Punitive Damages Award

In an opinion by Chief Judge Lippman, the Court of Appeals explained the criteria for the award of punitive damages in the context of the intentional diversion of storm water onto plaintiff’s property.  In finding the award of punitive damages was not warranted the Court noted:  “…[T]he conduct justifying such an award must manifest ‘spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton’ …, ‘…conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations’ “. Marinaccio v Town of Clarence, et al, No. 31, CtApp 3-21-13

 

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Corroborative Evidence for Confession—Strategy Behind Not Requesting Lesser Included Offenses and Severance

In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed.  In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed  People v McGee, No. 30, CtApp 3-21-13

 

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