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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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DEBRIS LEFT BEHIND AFTER WORK ON ANOTHER PROJECT WAS NOT “INTEGRAL” TO THE WORK PLAINTIFF WAS PERFORMING WHEN HE TRIPPED AND FELL; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON CERTAIN LABOR LAW 241(6) CAUSES OF ACTION BASED UPON INDUSTRIAL CODE VIOLATIONS; IN ADDITION THE CITY DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEBRIS; THEREFORE THE LABOR LAW 200 AND COMMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on certain Labor Law 241(6) causes of action and the city’s motion to dismiss the Labor Law 200 and common-law negligence claims should not have been granted. Plaintiff tripped on discarded plastic and rock debris from prior sidewalk demolition and construction. Plaintiff was working on reconstruction of a sidewalk bridge when he fell. Therefore the plastic and rock debris did not constitute material integral to the work plaintiff was performing as Supreme Court had held. In addition, although the city did not exercise supervisory control over the work, the Labor Law 200 and common-law negligence causes of action should not have been dismissed because the city did not demonstrate a lack of constructive notice of the dangerous condition created by the debris:

The plastic and the rock were not integral to the work performed by plaintiff or his coworkers because it constituted an accumulation of debris from previous work that was left in a “passageway” or “working area” which should have been kept free of debris ​… . * * *​

The “task at hand” did not involve demolition. It is uncontested that plaintiff and his coworkers were dismantling and rebuilding a sidewalk bridge at a new location and that plaintiff fell when he slipped and tripped while manually transporting a heavy beam to the new location. While it is undisputed that Padilla was a general contractor that did demolition work, the court’s overly broad view of the integral to the work defense reads [Industrial Code] sections 23-1.7(e)(1) and (2) out of existence. Lourenco v City of New York, 2024 NY Slip Op 03540, First Dept 6-27-24

Practice Point: Debris left over from another job was not “integral” to the work being performed at the time of plaintiff’s fall, therefore the presence of the debris violated certain provisions of the Industrial Code.​

Practice Point: Although the city did not exercise supervisory control over the work, it did not demonstrate a lack of constructive notice of the dangerous condition. Therefore the Labor Law 200 and common-law negligence causes of action should not have been dismissed.

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT THE BUSINESS RECORDS RELEVANT TO DEFENDANT’S DEFAULT, RENDERING THE AFFIDAVIT ALLEGING DEFENDANT’S DEFAULT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not prove defendant’s default in this foreclosure action because the relevant business records were not attached to the motion papers:

“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default” … . Although the plaintiff submitted the mortgage and the unpaid note, it failed to submit admissible evidence of the default.

“An affiant’s assertion regarding the defendant’s default, without the business records upon which he or she relied in making such an assertion, constitutes inadmissible hearsay” … . It is the business record itself that serves as proof of the matter asserted and “not the foundational affidavit” … .

Here, the plaintiff submitted an affidavit of an employee of the servicer and attorney-in-fact for the plaintiff, which set forth that, “[a]ccording to the business records that I have reviewed . . . the Defendant Roy Daleo failed to comply with the terms of the Note and Mortgage by defaulting in the monthly payment that was due on April 1, 2013 and monthly thereafter.” The affiant did not attach the business records upon which she relied in making her assertion regarding the defendant’s alleged default, and no such records were attached to the plaintiff’s motion. The affidavit of the plaintiff’s witness was therefore inadmissible hearsay and failed to satisfy the plaintiff’s prima facie burden … .  MTGLQ Invs., L.P. v Daleo, 2024 NY Slip Op 03477, Second Dept 6-26-24

Practice Point: To prove a defendant’s default in a foreclosure action, the affidavit alleging default must be accompanied by the supporting business records. If the records are not provided, the affidavit is hearsay.

 

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THE TRIAL COURT PROPERLY RULED THE PEOPLE PROVIDED RACE-NEUTRAL REASONS FOR STRIKING TWO BLACK JURORS; THE TRIAL COURT PROPERLY RULED THE HANDCUFFED DEFENDANT’S SHOW-UP IDENTIFICATION PROCEDURE WAS PROPER (CT APP).

The Court of Appeals, affirming the trial court’s Batson and suppression rulings, in a full-fledged opinion by Judge Cannataro, over a three-judge dissenting opinion, determined the trial court’s rulings (1) the People demonstrated race-neutral reasons for striking two Black jurors and (2) the show-up identification of the defendant, who was handcuffed, was proper:

Overall, C.C.’s responses gave rise to a reasonable inference that: (1) he viewed the arrest of his cousin for marijuana possession as a crime against his cousin; (2) he viewed the arrest of his cousin as a “raid” by police; and (3) his negative feelings towards police could affect his view of police witnesses in the case, regardless of any contradictory assurances he might have given. These inferences are patently reasonable and the trial court’s determination that the non-discriminatory reasons offered by the People in support of their peremptory strike of C.C. were credible and non-pretextual finds ample support in the record … . * * *

The People expressed concern that K.C.’s job duties would cause her to be inappropriately sympathetic to defendant. K.C.’s job involved determining whether juvenile offenders would be entitled to intake diversion, or face prosecution, and she was previously employed as a caseworker. We have previously recognized that a party may permissibly strike a juror “who works in a certain field . . . because that party believes—for reasons unrelated to the facts of the case—that such individual may have a more sympathetic attitude or view toward the opposing party” … . * * *

Although this Court has stated that a showup procedure in which a suspect is handcuffed and in the presence of police is “suggestive and not preferred” and “presses judicial tolerance to its limits” … , we have concluded that, such a showup is “reasonable under the circumstances” when it is conducted in close geographic and temporal proximity to the crime … . When a showup is done as part of “one unbroken chain of events—crime, escape, pursuit, apprehension and identifications” such a procedure is acceptable … . As we have recognized, ” ‘prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed” ,,, . Moreover, “[w]hether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court’s review is at an end” …. . People v Wright, 2024 NY Slip Op 03320, CtApp 6-18-24

Practice Point: A show-up identification procedure in close geographical and temporal proximity to the crime can be proper, even when the defendant is handcuffed.

 

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AFTER A VALID TRAFFIC STOP, DEFENDANT WAS DETAINED WHILE HIS PAROLE OFFICER WAS CALLED TO THE SCENE; DEFENDANT’S CAR WAS THEN SEARCHED AND HEROIN WAS FOUND; THE MATTER WAS REMITTED TO DETERMINE WHETHER DEFENDANT WAS PROPERLY DETAINED UNDER THE “REASONABLE SUSPICION” STANDARD, NOT THE “RIGHT TO INQUIRE” STANDARD APPLIED BY THE SUPPRESSION COURT (CT APP). ​

The Court of Appeals, remitting the case for a determination of the suppression motion under the “reasonable suspicion” standard, in a full-fledged opinion by Judge Cannataro, over an extensive dissenting opinion, determined there was a question whether the defendant was illegally detained after a valid traffic stop to allow investigation of a possible parole violation. The parole officer was called to the scene, the defendant’s car was searched, and heroin was found:

The proper standard for detaining an individual beyond “the time reasonably required” to complete a traffic stop is reasonable suspicion … . Given that a traffic stop is a “limited seizure” of the occupants of a vehicle, “[f]or a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance” … . A “continued involuntary detention of [a] defendant . . . constitute[s] a seizure in violation of their constitutional rights, unless circumstances coming to [the officer’s] attention following the initial stop furnishe[s] . . . reasonable suspicion that they were engaged in criminal activity” … . Likewise, the United States Supreme Court has held that “[a] seizure justified only by a police-observed traffic violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation” … . In this vein, although that “mission” encompasses ” ‘ordinary inquiries incident to [the traffic] stop,’ ” it does not include additional measures designed to detect evidence of criminality … . Thus, an otherwise lawful traffic stop may not be prolonged “absent the reasonable suspicion ordinarily demanded to justify detaining an individual” … .

… [T]here is record support for the affirmed finding that the traffic stop was justified at its inception, based upon the police officer’s observation that defendant committed a traffic infraction … . However, the courts below evaluated whether the traffic stop was prolonged beyond the time reasonably required for its completion under the founded suspicion standard applicable to the common law right to inquire … , a lesser standard than the reasonable suspicion necessary to prolong a traffic stop. As a result, remittal is necessary to allow for consideration of this issue under the proper standard. People v Thomas, 2024 NY Slip Op 03319, CtApp 6-18-24

Practice Point: After a valid traffic stop, the question whether defendant was properly detained to allow inquiry into suspected crimes unrelated to the traffic infraction is analyzed under the “reasonable suspicion” standard, not the lesser “right to inquire” standard.

 

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ALTHOUGH THE NOTICE OF THE INTENT TO PRESENT PSYCHIATRIC EVIDENCE DEMONSTRATING DEFENDANT’S LACK OF CAPACITY TO COMMIT ARSON WAS “1400 DAYS LATE,” THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ACCEPT THE LATE NOTICE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined the trial court abused its discretion in refusing to accept late notice of the intent to present psychiatric evidence as a defense to the arson charge. The defendant had been evaluated and treated for mental illness since childhood. When a new attorney was assigned to the defense, the notice of the intent to present psychiatric evidence was served “1400 days late.” The defense sought to introduce expert testimony to demonstrate defendant did not have the capacity to commit arson at the time of the offense:

We … hold that the trial court’s application of CPL 250.10 precluding Mr. Sidbury’s [defendant’s] psychiatric defense was an abuse of discretion. We have been clear that the governing principle animating CPL 250.10 is “procedural fairness and orderliness” with the intention of “eliminating the element of surprise” for the prosecution … . The statute formulates a procedure for defendants to serve notice of their intent to present psychiatric evidence that is “prepared and presented manageably and efficiently,” such that it allows for “proper notification, adversarial examination, and preclusion when appropriate” … . * * *

Although the statute provides for service of the notice within 30 days of the defendant’s not-guilty plea, the court has discretion to permit service of a late notice “[i]n the interest of justice and for good cause shown” … . Late notice is permissible “at any time prior to the close of evidence”—including after trial has commenced  … .

The decision to permit late notice is within the discretion of the trial court … . That discretion, however, is “not absolute,” because “[e]xclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in [their] own defense” … . Instead, the trial court must “weigh [the defendant’s constitutional] right against the resultant prejudice to the People from the belated notice” … . People v Sidbury, 2024 NY Slip Op 03318, CtApp 6-18-24

Practice Point: Although service of notice of intent to present psychiatric evidence as a defense should be made within 30 days of the not-guilty plea, the court has the discretion to accept late notice at any time prior to the close of evidence (because the constitutional right to present a defense is at stake).

 

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THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s burglary conviction on ineffective assistance grounds, determined defense counsel should have insisted on a jury instruction which reflected the crime charged in the indictment. The indictment alleged defendant entered the victim’s apartment with the intent to hold a knife to the victim’s throat. The jury was instructed that it need only find defendant unlawfully entered and remained in the victim’s apartment with the intent “to commit a crime” with no mention of holding a knife to the victim’s throat. At trial whether defendant possessed a knife was contested and defendant was acquitted of criminal possession of a weapon and menacing:

In its charge to the jury, County Court made no mention of the People’s theory of the crime as limited by the indictment. The court charged, with respect to the intent element, that the People must prove beyond a reasonable doubt that defendant entered or remained in the building “with the intent to commit a crime inside the building,” without specifying the intended crime. Defense counsel did not seek a tailored instruction limited to the theory in the indictment.

“There is no requirement that the People allege or establish what particular crime was intended,” to secure a conviction for burglary … . However, “[i]f the People . . . expressly limit[ ] their theory of the ‘intent to commit a crime therein’ element to a particular crime, then they . . . have . . . to prove that the defendant intended to commit that crime” … .

Here, defense counsel failed to seek an appropriately tailored instruction to the jury on burglary in the second degree or object to the burglary charge given. Defense counsel thereby permitted the jury to convict defendant upon a theory of the intent element that was not set forth in the indictment … . People v Mcclendon, 2024 NY Slip Op 03260, Fourth Dept 6-14-24

Practice Point: If the burglary count in the indictment charges that defendant unlawfully entered the victim’s apartment to “hold a knife to the victim’s throat,” the jury instruction should match the language in the indictment. Here the jury was instructed it need only find that defendant entered the apartment “to commit a crime” with no mention of a knife. Whether there was a knife was contested at trial and defendant was acquitted of criminal possession of a weapon and menacing. Under those facts, defense counsel was ineffective for failing to request a jury instruction which matched the knife-related crime charged in the indictment.

 

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OVER A TWO-JUSTICE DISSENT, THE MATTER WAS SENT BACK FOR A RULING ON WHETHER THE PEOPLE COMPLIED WITH THEIR DISCOVERY OBLIGATIONS RE: LAW ENFORCEMENT DISCIPLINARY RECORDS (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling on whether the People complied with their discovery obligations, over a two-justice dissent, noted that the People cannot use a “screening panel” to review law enforcement disciplinary records:

Defendant … contends that the court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30). In particular, he contends that the People’s failure to disclose existing disciplinary records of potential law enforcement witnesses for use as impeachment materials … rendered any certificate of compliance (COC) filed pursuant to CPL 245.50 improper and thereby rendered any declaration of trial readiness made pursuant to CPL 30.30 illusory and insufficient to stop the running of the speedy trial clock. As the Court of Appeals recently stated in People v Bay, “the key question in determining if a proper COC has been filed is whether the prosecution has ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” … . Due diligence “is a familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives” (id. [internal quotation marks omitted]). “[W]hether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” … . “[C]ourts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery” … . Although the statute does not require a ” ‘perfect prosecutor,’ ” the Court emphasized that the prosecutor’s good faith, while required, “is not sufficient standing alone and cannot cure a lack of diligence” … . People v Sumler, 2024 NY Slip Op 03307, Fourth Dept 6-14-24

Practice Point: A “screening panel” cannot be used to determined what law enforcement disciplinary records must be supplied to the defense in discovery.

Practice Point: The People’s failure to comply with discovery obligations may render the certificate of compliance improper and the ready-for-trial announcement illusory, warranting dismissal on speedy trial grounds.

 

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