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EVIDENCE THE CHILD HAD RECANTED THE CHILD’S TESTIMONY THAT FATHER SEXUALLY ABUSED THE CHILD WAS VAGUE AND WAS NOT SUFFICIENT TO REBUT THE ABUSE FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the recantation evidence did rebut the prima facie evidence that father had sexually abused the child:

… [P]etitioner established by a preponderance of the evidence that the father sexually abused the child. The child’s testimony during the fact-finding hearing was consistent and detailed, and any minor inconsistencies “did not render such testimony unworthy of belief” … . The child’s testimony was sufficient to establish a finding of sexual abuse pursuant to Family Court Act § 1046(b)(i) … .

At the reopened fact-finding hearing, the mother of the father’s other children (hereinafter the witness) testified that the child recanted her allegations of abuse. The child did not testify at the reopened fact-finding hearing. “[A] child’s recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children” … . “Rather, recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve” … . Here, even assuming that the witness’s testimony was credible, it was insufficient to warrant dismissal of the petition. The witness testified that she overheard the child telling other children that the child missed the father. After the witness confronted the child, the child told the witness that “she wished that she never lied . . . by saying that [the father] did those things.” The witness did not specify what “things” the child was referring to. During cross-examination, the witness testified that immediately after she asked the child “what did she mean by she lied,” the child indicated that “she never said that.” The witness also testified on cross-examination that she had previously confronted the child about the allegations against the father, and the child told the witness that “she was sure . . . that these things took place.” The alleged recantation as described by the witness was vague, and the witness’s testimony was insufficient to rebut the finding of abuse … . Matter of Kenyana D. (Kenneth D.), 2024 NY Slip Op 03746, Second Dept 7-10-24

Practice Point: Here the evidence the child had recanted the child’s testimony that father had abused the child was too vague to rebut the abuse finding.

 

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THE COURT’S PRIOR ORDER STATED FATHER’S COMPLIANCE FOR SIX MONTHS WOULD CONSTITUTE A CHANGE IN CIRCUMSTANCES AND FATHER DEMONSTRATED SUCH COMPLIANCE; IN ADDITION MOTHER’S RELOCATION TO ARIZONA WITHOUT PERMISSION CONSTITUTED A CHANGE IN CIRCUMSTANCES; IN-PERSON VISITATION ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstances warranting in-person visitation with the children. The prior order of the court stated that father’s compliance for six months would constitute a change in circumstances and father demonstrated such compliance. In addition, mother’s relocation to Arizona without permission also constituted an actionable change in circumstances:

The prior order provided “that sufficient compliance with [the] order for a period of six (6) months will constitute a change of circumstances for [f]ather to re[-]petition for additional visitation time and overnights.” The father testified that he had been exercising his visitation consistently until the mother moved to Arizona with the children, an assertion that went unchallenged during the hearing. We conclude that the father established a change in circumstances based on his compliance with the terms of the prior order. We also conclude that the mother’s relocation without permission constituted a change in circumstances because it resulted in a substantial interference with the father’s visitation rights … .

Based on the record before us, we further conclude that modification of the father’s visitation schedule to include in-person visitation would serve the children’s best interests … . Matter of Hudson v Carter, 2024 NY Slip Op 03615, Fourth Dept 7-3-24

Practice Point: If a court order indicates compliance for six months will constitute a change in circumstances warranting modification of custody, that condition should be honored by the court.

 

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THE WARRANT AUTHORIZING THE SEARCH OF THE CONTENTS OF DEFENDANT’S CELL PHONE DID NOT RESTRICT THE SEARCH TO EVIDENCE OF ANY PARTICULAR CRIME AND DID NOT INCORPORATE THE POLICE INVESTIGATOR’S AFFIDAVIT WHICH PURPORTEDLY LAID OUT THE BASIS FOR FINDING PROBABLE CAUSE; THE WARRANT DID NOT MEET THE “PARTICULARITY REQUIREMENT” (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the motion to suppress evidence seized from defendant’s cell phone should have been granted because the search warrant lacked particularity:

A search warrant must be “specific enough to leave no discretion to the executing officer” … . To meet the particularity requirement, a search warrant must (1) “identify the specific offense for which the police have established probable cause,” (2) “describe the place to be searched,” and (3) “specify the items to be seized by their relation to designated crimes” … . Here, the search warrant authorized and directed the police to search for … “cellular phones (including contents)” located in defendant’s vehicle. Significantly, the search was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion over the search to the executing officers …. The search warrant states that an affidavit from a police investigator provided the basis for the finding of probable cause for the search. Although that affidavit contained information about the crime and defendant’s exchange of text messages with the victim before the crime, the mere mention in a search warrant of an affidavit or application “does not save the warrant from its facial invalidity” where the search warrant contains no language incorporating that document … . People v Wiggins, 2024 NY Slip Op 03614, Fourth Dept 7-3-24

Practice Point: A search warrant which does not restrict the search to evidence of a particular crime is invalid because it fails to meet the particularity requirement.

Practice Point: Reference in a search warrant to an affidavit which is not incorporated into the warrant doesn’t overcome the defect.

 

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HERE THE PLEA ALLOCUTION DID NOT INDICATE TWO SEPARATE AND DISTINCT ACTS WERE ENCOMPASSED BY COUNTS 2 AND 3; THEREFORE CONSECUTIVE SENTENCES FOR THOSE COUNTS SHOULD NOT HAVE BEEN IMPOSED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s consecutive sentences, determined there was no evidence the counts to which defendant pled guilty involved two separate and distinct acts:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Thus, in order for a consecutive sentence to be legally imposed, the People have the burden of demonstrating by “identifiable facts . . . that the defendant’s acts underlying the crimes are separate and distinct” … . Where, as here, the defendant is “convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts and circumstances admitted during the plea allocution” in order to meet that burden … .

Here, no facts were adduced at defendant’s plea allocution that would establish two separate and distinct acts causing injury to the victims named in counts 2 and 3, and thus there was no basis for imposing consecutive sentences for those counts … . People v Wright, 2024 NY Slip Op 03613, Fourth Dept 7-3-24

Practice Point: To impose consecutive sentences based upon a guilty plea, the plea allocution must demonstrate the counts encompass separate and distinct acts.​

 

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A TEACHER’S ALLEGED STATEMENT TO THE PLAINTIFF THAT HE WAS AWARE OF THE SEXUAL ABUSE OF THE PLAINTIFF BY ANOTHER TEACHER OCCURRING REPEATEDLY AT SCHOOL WAS DEEMED AN ADMISSION ATTRIBUTABLE TO THE SCHOOL DISTRICT RAISING A QUESTION OF FACT WHETHER THE SEXUAL ABUSE WAS FORESEEABLE BY THE SCHOOL DISTRICT (FOURTH DEPT).

The Fourth Department, over a concurrence disagreeing with the majority ruling that a teacher’s alleged statement was admissible against the school district as an admission, affirmed the denial of the school district’s motion for summary judgment in this Child Victims Act negligent supervision case. Plaintiff, who was a student in the late 60’s, alleged repeated abuse by a teacher in a back room at the school. Another teacher was alleged to have overheard the abuse and allegedly threatened plaintiff with revealing it in an attempt to sexually abuse plaintiff himself. That statement was deemed an admission which raised a question of fact whether the abuse was foreseeable by the school district:

… [P]laintiff testified that the orchestra teacher offered her a ride home from a bus stop after an evening event at the school. Instead of taking her home, however, the orchestra teacher took her to a park where, according to plaintiff, he told her “that he knew what was going on because he could hear through the walls from the orchestra room into that back room [where Fleming’s office was located] and that [plaintiff] didn’t want it to get out — [plaintiff] wouldn’t want it to come out, so [she] should be nice to him.” When plaintiff responded that she did not know what the orchestra teacher was talking about, he attempted to kiss her. * * *

The court determined that the entirety of the statement attributed to the orchestra teacher was admissible as a vicarious party admission of defendant under CPLR 4549 and therefore properly considered when evaluating defendant’s motion for summary judgment, because the orchestra teacher was employed by defendant and “[r]ecognizing and responding to the abuse of students while on school grounds certainly falls within the scope of the duties of a teacher employed by [defendant].” * * *

We conclude that it is within the scope of a teacher’s employment relationship to identify and assist a student who they believe is being sexually abused, and that the orchestra teacher’s statement indicating awareness of the abuse of plaintiff was therefore “on a matter within the scope of [the employment] relationship” … . We further conclude that the orchestra teacher’s statement professing knowledge of the abuse occurred “during the existence of” the employment relationship, within the meaning of CPLR 4549, inasmuch as it is undisputed that he was employed by defendant at the time the statement was made. Therefore, we agree with the court that the statement is admissible pursuant to CPLR 4549. Bl Doe 5, 2024 NY Slip Op 03608, Fourth Dept 7-3-24

Practice Point: In a negligent supervision action against a school district, is a statement allegedly made by a teacher to a student indicating the teacher’s awareness of repeated sexual abuse of the student by another teacher, taking place at school, admissible against the school district as an admission of its awareness of the abuse? Here the court answered “yes” over a concurrence which disagreed.

 

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​ THE DOCTRINE OF MERGER REQUIRED REVERSAL OF THE KIDNAPPING CONVICTION AND THE INCLUSORY-CONCURRENT-COUNT DOCTRINE REQUIRED REVERSAL OF THE FORCIBLE TOUCHING CONVICTION (FOURTH DEPT).

The Fourth Department, reversing the kidnapping and forcible touching convictions determined the doctrine of merger precluded the kidnapping conviction and the forcible touching count was in inclusory concurrent count re: stalking:

Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted kidnapping in the second degree as a sexually motivated felony … , stalking in the first degree … , and forcible touching … .

Defendant approached the victim while she was walking alone on a street. After a brief verbal encounter, defendant began to follow the victim, grabbing her buttocks and then restraining her before ultimately releasing her and walking away. * * *

The merger doctrine is “a means of effectuating the Legislature’s intent [to effectuate a statutory scheme presenting a range of offenses and penalties measured by the gravity of a defendant’s conduct] by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping,” such as “conduct that, in fairness, should result in a single conviction” … . The “guiding principle” of the merger doctrine inquiry is whether the acts of restraint or abduction were ” ‘so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” … . Where the alleged “abduction and underlying crime are discrete, for example, there is no merger,” but “where there is minimal asportation immediately preceding [the underlying crime], the abduction should not be considered kidnapping” … . Here, defendant’s restraint of the victim was “simultaneous [with] and inseparable from” defendant’s stalking and forcible touching of the victim … , such that “independent criminal responsibility may not fairly be attributed” to the attempted kidnapping … .

Finally, we conclude that, as charged … , it was impossible for defendant to commit stalking in the first degree without, by the same conduct, committing forcible touching, thereby rendering forcible touching an inclusory concurrent count of stalking in the first degree … . People v Woods, 2024 NY Slip Op 03606, fourth Dept 7-3-24

Practice Point: Here is an illustration of the merger doctrine applied to reverse a kidnapping conviction and the inclusory-concurrent-count doctrine applied to reverse a forcible touching conviction.

 

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ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​

The Fourth Department, affirming defendant’s conviction, in a full-fledged opinion by Justice Greenwood, over a strong dissent, determined the one-witness identification of the defendant was not against the weight of the evidence. After identifying the defendant in a photo array the victim asked to see another photo array. In the second array she again picked out the defendant, but apparently she didn’t think she was identifying the same person. But she had in fact identified the same person from an older photograph:

In determining whether a verdict is against the weight of the evidence, we must first determine whether, “based on all the credible evidence[,] a different finding would not have been unreasonable” … . If so, “then [we] must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” … . Weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgment for that of the jury … . Rather, in reviewing the evidence, we “must give ‘[g]reat deference’ to the jury’s verdict . . . precisely because ‘[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative’ ” … . Stated another way, it is the “fact-finder[ ]” that has the “opportunity to view the witnesses, hear the testimony and observe demeanor” … , and “those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record” … .

Contrary to the conclusion of the dissent, the facts of this case do not warrant the substitution of our credibility determinations for those made by the jury …  We conclude that the second victim’s identification of defendant was not “incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” … . The issues of her identification of defendant and her credibility “were properly considered by the jury and there is no basis for disturbing its determinations” … . We note that the second victim “never wavered in her testimony regarding the events or her identification of defendant” … .People v Clark, 2024 NY Slip Op 03586, Fourth Dept 7-3-24

Practice Point: The criteria for a “weight of the evidence” appellate review is clearly illustrated here.

 

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HACKED WEB CAM VIDEO EVIDENCE ALLEGED TO DEPICT ABUSE OF A CHILD IN MOTHER’S HOME WAS DEEMED BY THE MAJORITY TO HAVE BEEN SUFFICIENTLY AUTHENTICATED; STRONG DISSENT (FOURTH DEPT).

The Fourth Department, over a strong and comprehensive dissent, determined the video evidence allegedly showing abuse of her daughter was properly authenticated. The video was obtained in an unrelated investigation of a suspect who hacked into a security web camera which was linked to mother’s house:

The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the “actions, dialogue, and behavior shown in the videos show no indication of any tampering.” In other words, there were “distinctive identifying characteristics” in the videos themselves … . There was also the “significant fact” that the mother did not dispute that … . Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs of alteration or tampering with the videos. Matter of Mekayla S., 2024 NY Slip Op 03584, Third Dept 7-3-24

Practice Point; Here hacked web cam video footage was alleged to have been properly authenticated by the identification of persons depicted in screen shots from the video and the lay out and contents of the room depicted in the video. There was a strong dissent.

Same issue and result in the abuse proceeding against mother’s boyfriend, this time with two different dissenting justices, agreeing with and adopting the rationale of the dissenting justice in the proceeding against mother. Matter of Gabriel H., 2024 NY Slip Op 03588, Fourth Dept 7-3-24

 

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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING IN THIS CEILING-COLLAPSE CASE; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants landlord and property manager were entitled to have the liability verdict set aside in the interest of justice because the judge should not have precluded testimony by defendants’ expert. Plaintiff-tenants were injured when their apartment ceiling collapsed. The defendant expert would have testified there would have been no visible signs that the ceiling was about to collapse. The court noted that plaintiffs’ request for a Frye hearing was properly denied because the expert would have testified based upon his personal training and experience:

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The expert must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus [the defense expert], a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible … .

… “[T]he long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field … . An expert opinion based on personal training and experience is not subject to a Frye analysis … . Ghazala v Shore Haven Apt. Del, LLC, 2024 NY Slip Op 03681, Second Dept 7-3-24

Practice Point; If a judge makes a mistake by precluding admissible testimony, here testimony by the defense expert, the judge has the power to set aside the verdict in the interest of justice. The Appellate Division reversed the denial of the motion to set aside the verdict.

 

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A DECEASED PARTY’S ADMISSIONS ARE NOT HEARSAY AS AGAINST THAT PARTY’S ESTATE AND SUPPORT THE PETITIONER-ESTATE’S CONSTRUCTIVE TRUST CLAIM; THE ATTORNEY FOR THE RESPONDENT ESTATE WAS PRESENT DURING DISCUSSIONS AT THE HEART OF THE CONSTRUCTIVE TRUST CLAIM AND MUST BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE (FIRST DEPT). ​

The First Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Friedman, determined summary judgment dismissing the constructive trust cause of action and denying the motion to disqualify counsel because he would necessarily be a witness should not have been granted. Mother, Isabel, alleged, as Medicaid planning, she transferred $1.6 million to her daughter, Jody, to be held by Jody during Isabel’s lifetime and then distributed equally among Jody and her two siblings. Jody, however, predeceased Isabel. Upon learning the accounts set up by Jody had only $255,000 in them, Isabel asserted a claim against Jody’s estate for $2 million. Subsequently Isabel died. The lawyer who represents Jody’s executor in the instant proceedings, Leibowitz, took notes during a telephone conference among himself, Isabel and Jody when the Medicaid planning transfer was discussed. The facts are too complex to fairly summarize here. Suffice to say that there was sufficient evidence that Jody had made admissions concerning the Medicaid planning agreement which is the basis for the constructive trust cause of action. Jody’s admissions are not excludable as hearsay against her estate. The First Department also concluded Leibowitz’s status as witness required his disqualification:

… [A]n admission by a party is admissible against that party, as an exception to the hearsay rule, as evidence of the matter asserted in the admission, whether or not the party’s statement was against his or her interest at the time the statement was made … . Moreover, “[a]dmissions of a testator or intestate are competent against the estate” … . Accordingly, admissions by Jody are competent evidence against Jody’s executor, the representative of her estate. * * *

… [T]he 2009 notes reflect that Leibowitz discussed with Jody and Isabel the transfers at issue in this case, and Robert [Isabel’s son and executor of her estate] may examine Leibowitz at trial about Jody’s statements to him concerning any agreements, understanding or promises between herself and Isabel relating to those transfers. While it cannot be determined at this juncture whether Leibowitz’s testimony will be of material assistance to Robert in proving his claim, it remains the case that Leibowitz discussed matters related to that claim with Jody, and his recollections of Jody’s statements will be admissible against Jody’s executor as admissions. Because Leibowitz should be a witness in this case, his continued representation of Jody’s executor in this proceeding violates the advocate-witness rule and disqualification pursuant to rule 3.7 of the Rules of Professional Conduct is appropriate. Matter of Newman, 2024 NY Slip Op 03544, First Dept 6-27-24

Practice Point:  A deceased party’s admissions are not hearsay as against that party’s estate.

Practice Point: An attorney who will be called as a witness for the opposing party must be disqualified under the advocate-witness rule.

 

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