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A GAP IN THE CHAIN OF CUSTODY OF THE DRUGS SEIZED FROM DEFENDANT AND A DISCREPANCY IN THE DESCRIPTIONS OF THE BAG CONTAINING THE DRUGS DID NOT RENDER THE DRUGS INADMISSIBLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined a gap in the chain of custody and a discrepancy in the descriptions of the evidence did not render the evidence (white powder in plastic bags) inadmissible. Officer Lin, who seized the evidence, noted a rip in the larger plastic bag. But Osorio, the criminologist who analyzed the white powder, did not notice a rip in the larger bag:

… [T]he record indicates that the gap spanned, at most, only a few hours overnight and “[a]t all times, the drugs apparently remained safely under police control” in an identifiable location at a precinct station … . Officer Lin testified that she placed the evidence inside an envelope used to voucher drugs, and that the only other person in the office at the time was an administrative officer who was tasked with safeguarding such evidence. In leaving the evidence at the station to resume her patrol, Officer Lin followed a procedure intended to reduce opportunities for error and misconduct … . When Officer Lewis arrived to voucher the evidence, “the drugs were found precisely where they were supposed to be” … . * * *

Defendant also focuses on Osorio’s testimony that she did not “see” or write in her worksheet that there were rips in the plastic bags recovered from defendant, which he characterizes as irreconcilable with Officer Lin’s testimony about the torn condition of the larger bag. Defendant ignores that the bags were admitted into evidence at trial and the factfinder was expressly encouraged to examine them to confirm Officer Lin’s testimony. If the larger bag was torn in some way, Osorio’s mere failure to notice that defect would not support an inference of tampering. Because the bag is not part of the record on appeal, it is impossible to discern the existence or extent of any discrepancy, let alone conclude that it rendered the drugs inadmissible…. . People v Baez, 2024 NY Slip Op 02225, CtApp 4-25-24

Practice Point: Here the drugs seized from the defendant were left overnight in a room at the precinct before a voucher was created, and the officer who seized the drugs noticed a rip in the larger plastic bag but the criminologist who analyzed the drugs did not notice such a rip. Despite these issues, the chain of custody was sufficiently proven to render the drugs admissible in evidence.

 

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ALLOWING EVIDENCE OF UNCHARGED CRIMES AND BAD ACTS UNDER MOLINEUX, AND ALLOWING DEFENDANT HARVEY WEINSTEIN TO BE CROSS-EXAMINED ABOUT THOSE UNCHARGED ALLEGATIONS UNDER SANDOVAL, DEPRIVED HIM OF A FAIR TRIAL; CRIMINAL SEXUAL ACT AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two three-judge dissenting opinions, reversing defendant’s criminal-sexual-act and rape convictions and ordering a new trial, determined the admission of evidence of uncharged crimes and bad acts under Molineux and the Sandoval ruling allowing the defendant to be cross-examined about the uncharged allegations, deprived defendant of a fair trial:

Before trial, the court granted the prosecution’s application to admit certain testimony of uncharged crimes and miscellaneous bad acts as an exception to the Molineux rule, prohibiting such evidence, to establish defendant’s intent and his understanding of the complainants’ lack of consent. Thus, Complainant B could testify about defendant’s uncharged sexual assaults against her before and after the charged rape and her awareness of defendant’s abusive and threatening behavior, and three other women (the “Molineux Witnesses”) could testify regarding defendant’s sexual misconduct towards them years before and after the charged offenses involving Complainants A and B.

The court also granted … the prosecution’s Sandoval application to cross-examine defendant on a broad range of uncharged bad acts should he testify. … [T]he prosecution was permitted to ask about, for example, whether defendant: directed a witness to lie to defendant’s wife; filed an application for a passport using a friend’s social security number; told a woman he “could harm her professionally” but could also offer her a book publishing opportunity; used his entertainment company’s budget for personal costs; withdrew from a business deal and asked others to cease its funding; hid a woman’s clothes; insisted that members of his staff falsify a photo for a movie poster by photoshopping a female actor’s head on another woman’s nude body; told a private intelligence firm to manipulate or lie to people; scheduled a business meeting in 2012 with a woman under false pretenses; induced executives to lie on his behalf; made threats and committed acts of violence against people who worked for him; abandoned a colleague by the side of the road in a foreign country; physically attacked his brother; threatened to cut off a colleague’s genitals with gardening shears; screamed and cursed at hotel restaurant staff after they told him the kitchen was closed; and threw a table of food. The court also permitted the prosecution to cross-examine defendant about the details of the sexual assault allegations described by the Molineux Witnesses during the prosecution’s case-in-chief. People v Weinstein, 2024 NY Slip Op 02222, CtApp 4-25-24

Practice Point: Molineux and Sandoval are still alive and kicking.

 

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DEFENDANT CARPET AND FLOORING SUBCONTRACTOR’S REQUEST TO INSPECT THE AREA OF THE FLOOR WHERE PLAINTIFF ALLEGEDLY STEPPED INTO AN UNGUARDED VENT HOLE SHOULD HAVE BEEN GRANTED; ALTHOUGH THE VENT COVER HAD BEEN REPLACED, IT CAN NOT BE SAID THE INSPECTION WOULD BE FRUITLESS, OR THAT THE INSPECTION WOULD CAUSE UNREASONABLE ANNOYANCE, EXPENSE, EMBARRASSMENT OR OTHER PREJUDICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant carpet and flooring subcontractor’s (S&’s) request to inspect the area of the building where plaintiff stepped into a vent hole from which a cover had been dislodged should not have been denied. Although the vent cover had been replaced, it could not be said for certain that an inspection would be fruitless:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The Court of Appeals has directed that the phrase “material and necessary” in this statute should be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” … . Under this standard, S&F is entitled to inspect the site of the incident giving rise to plaintiff’s allegedly serious injuries.

While the replacement of the … cover might reduce the likelihood that a site inspection will produce evidence useful to S&S’s defense, it does not make it certain that an inspection will be useless. … It is for S&F, not its adversary, to determine whether the inspection of the site of the accident is sufficiently likely to produce relevant information to be worth S&F’s time and effort. … . …

… [A] court’s power to limit otherwise proper use of a disclosure device should be exercised only for the purpose of avoiding “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.”

We fail to see how an inspection of the site of the accident giving rise to this lawsuit would impose on plaintiff, or on anyone else, any of the burdens enumerated by CPLR 3103(a) to an “unreasonable” extent. Balsamello v Structure Tone, Inc., 2024 NY Slip Op 02251, First Dept 4-25-24

Practice Point: An inspection by defendant of the area where plaintiff was injured should be allowed absent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

 

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PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING A NAIL GUN; PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK HE WAS DOING REQUIRED EYE PROTECTION WITHIN THE MEANING OF THE RELEVANT INDUSTRIAL CODE PROVISION; THEREFORE PLAINTIFF SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant was required to provided eye protection for the work plaintiff was engaged in at the time his eye was injured:

The plaintiff allegedly was injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control … . “In order to establish liability under Labor Law § 241(6), a plaintiff must ‘establish the violation of an Industrial Code provision which sets forth specific safety standards,’ and which ‘is applicable [to the facts] of the case'” … . Industrial Code (12 NYCRR) § 23-1.8(a) requires the furnishing of eye protection equipment to employees who, inter alia, are “engaged in any . . . operation which may endanger the eyes.”

Here, the plaintiff’s submissions failed to eliminate a triable issue of fact as to whether, at the time of his accident, the plaintiff was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to Industrial Code (12 NYCRR) § 23-1.8(a) … . Chuqui v Cong. Ahavas Tzookah V’Chesed, Inc., 2024 NY Slip Op 02166, Second Dept 4-24-24

Practice Point: Although plaintiff was struck in the eye by a piece of wire when using a nail gun, he did not eliminate questions of fact about whether the work he was doing triggered the eye-protection requirement in the Industrial Code. Therefore plaintiff was not entitled to summary judgment on his Labor Law 241(6) cause of action.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

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THE TRIAL JUDGE SHOULD HAVE HELD AN INDEPENDENT-SOURCE HEARING BEFORE ALLOWING THE UNDERCOVER OFFICER TO IDENTIFY THE DEFENDANT AT TRIAL; HEARING AND NEW TRIAL ORDERED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the conviction and ordering an independent-source hearing and a new trial, found the record insufficient to determine whether the undercover officer had an independent source for his in-court identification of the defendant. Supreme Court, rather than holding an independent-source hearing, relied on the undercover officer’s prior testimony at the probable cause hearing. But the Court of Appeals found that testimony insufficient:

… [W]e address whether Supreme Court erred when it denied defendant’s motion for an independent source hearing and, instead, used an undercover police officer’s prior testimony at a probable cause hearing to render a determination on whether the officer had an independent source for his prospective in-court identification of defendant. … [T]he trial court erred in admitting the undercover officer’s in-court identification without a hearing record sufficient to support an independent source determination for the identification. * * *

… [At the probable cause hearing] the undercover testified that he had never interacted with the seller before the date in question and did not interact with the seller directly during the buy and bust. Although the undercover described the seller’s clothes, he did not provide a physical description of the seller. He did, however, testify about his close proximity to the seller—close enough to hear that the intermediary and the seller were having a conversation, but not their words. … [H]is testimony did not address how long the seller was within his sight or the nature of his confirmatory identification of defendant. People v Williams, 2024 NY Slip Op 02128, CtApp 4-23-24

Practice Point: Here the trial judge relied on the officer’s testimony at the probable cause hearing to demonstrate the officer had an independent source for his in-court identification of the defendant. The testimony was deemed too weak to demonstrate an independent source. New trial and independent-source hearing ordered.

 

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BEFORE ADMITTING NON-EYEWITNESS TESTIMONY TO IDENTIFY DEFENDANT IN A VIDEO, THE BASIS SHOULD BE DETERMINED OUTSIDE THE PRESENCE OF THE JURY, THE PARTY OFFERING THE WITNESS MUST DEMONSTRATE THE RELIABILITY OF THE WITNESS, AND THE NEED FOR THE TESTIMONY MUST BE DEMONSTRATED; IN ADDITION, A THOROUGH RECORD MUST BE CREATED AND THE JURY SHOULD BE INSTRUCTED THEY ARE FREE TO REJECT THE NON-EYEWITNESS IDENTIFICATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, over a concurrence, determined the “non-eyewitness” who purported to identify the defendant in a video was not shown to be sufficiently familiar with the defendant and there was no showing that the jury faced an obstacle to making the identification:

This case concerns an increasingly prevalent issue: when may someone who is not an eyewitness to a crime testify to a jury that the defendant is the person depicted in a photo or video. We hold that such testimony may be admitted where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment. Here, there was no showing that the proffered witness was sufficiently familiar with the defendant to render his testimony helpful, or that the jury faced an obstacle to making the identification that the witness’s testimony would have overcome. * * *

… [B]efore admitting lay non-eyewitness identification testimony, a court should inquire as to the basis of the witness’s familiarity outside the presence of the jury in a separate hearing or voir dire, as the court properly did here. The party offering the witness—in most cases the People—bears the burden of establishing that their testimony would both be helpful and necessary. … [I]t is incumbent on both parties to create a thorough record to aid the court in its determination and to allow for meaningful appellate review. … [I]t would be appropriate for the trial court to provide cautionary jury instructions, both at the time of the testimony and during the final charge, explaining to the jury that lay non-eyewitness identification testimony is mere opinion testimony that they may choose to accept or reject, and reminding the jurors that because they are the finders of fact, it is their opinion as to whether the defendant is depicted in the surveillance footage that matters … . People v Mosley, 2024 NY Slip Op 02125, CtApp 4-23-24

Practice Point: Here the Court of Appeals offers guidance on the use of non-eyewitness testimony to identify the defendant in a video. The reliability of the witness and the need for the testimony must be demonstrated outside the presence of the jury. A full record must be made. And the jury should be instructed they are free to reject the testimony.

 

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REVERSING THE FOURTH DEPARTMENT WITHOUT OPINION OR MEMORANDUM DECISION, THE COURT OF APPEALS HELD QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR IN THIS MEDICAL MALPRACTICE ACTION (CT APP).

The Court of Appeals, reversing the Fourth Department without an opinion or memorandum decision, determined questions of fact precluded summary judgment in defendants’ favor in this medical malpractice case. ​Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2024 NY Slip Op 02085, CtApp 4-18-24

From the dissent in Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2023 NY Slip Op 04063 [218 AD3d 1344], Fourth Dept 7-28-23:

The medical records proferred by defendants established that, after a failed first intubation attempt with a 3.5 mm ET by defendant Katelyn Johnson-Clark, D.O., a physician with little training in the intubation process, Johnson-Clark attempted intubation using a smaller 3.0 mm ET. It is undisputed that there was no verification of the proper placement of that ET by way of an end-tidal CO2 detector. The medical records further establish that one minute after the placement of the ET, the infant’s heart rate quickly dropped and one minute thereafter, the infant’s belly was distended. Another physician testified at her deposition that both of those signs indicate that there was a potential issue with the intubation. When the specialized transport team arrived, it was determined by way of a CO2 detector that the ET was not in the proper place. Thus, we conclude that defendants’ own submissions raise questions of fact whether Johnson-Clark acted negligently in the intubation of the infant and the motion was properly denied in part without regard to the sufficiency of plaintiff’s opposition papers … . We would therefore affirm that part of the order denying defendants’ motion insofar as it seeks summary judgment dismissing the claim of malpractice related to the intubation of the infant.

 

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ACQUITTAL ON THE RAPE AND FORCIBLE TOUCHING CHARGES RENDERED THE “ENDANGERING THE WELFARE OF A CHILD” CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s “endangering the welfare of a child” conviction, determined defendant’s acquittal on the rape and forcible touching charges rendered the conviction “against the weight of the evidence:”

In conducting our weight of the evidence review, we consider the jury’s acquittal on other counts, and, under the circumstances of this case, find the jury’s acquittal on the other counts supportive of a reversal of the conviction on the count of endangering the welfare of a child … . Here, the defendant was charged with, but acquitted of, rape in the second degree, rape in the third degree, and forcible touching, and the alleged conduct that formed the basis of those charges was essentially the same alleged conduct that formed the basis of the charge of endangering the welfare of a child. Once the jury discredited the complainant’s testimony with respect to the charges of rape and forcible touching, the record was devoid of any evidence that the defendant “knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old” … , as charged on the count of endangering the welfare of a child. People v Liston, 2024 NY Slip Op 02066, Second Dept 4-17-24

Practice Point; Defendant was acquitted of the rape and forcible touching charges which were based on the same allegations as was the conviction on the “endangering the welfare of a child” charge. The conviction, therefore, was “against the weight of the evidence.”

 

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THE REVOCATION OF PETITIONER’S MEDICAL LICENSE WAS CONFIRMED; TWO DISSENTERS ARGUED THERE WAS INSUFFICIENT EVIDENCE OF THE REQUIRED STANDARD OF CARE, ESPECIALLY AS THE STANDARD APPLIES TO TERMINALLY ILL PATIENTS WHO CONSENT TO AGGRESSIVE TREATMENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, confirmed the revocation of petitioner’s medical license by the New York State Board for Professional Medical Conduct. The dissenters argued the publications used by respondent’s expert to assess the quality of care provided by petitioner were advisory in nature and did not apply to the aggressive care petitioner offered to terminally ill patients:

From the dissent:

… [T]he findings of the Committee were premised entirely on the erroneous understanding of respondent’s expert, Isamettin Aral, that professional societies establish the accepted standard of care. The record reflects that, on cross-examination, petitioner’s counsel asked Aral the question, “what do you mean when you say standard of care?” In response, Aral testified, “[w]e have accepted guidelines that are published by multiple societies, they include our board, [the] American College of Radiology or [the] American Board of Radiology, [and] national comprehensive cancer networks and these are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas. When you deviate from those, it is considered to fall short of a standard.”

Although we acknowledge that petitioner pursued what appears to have been aggressive care with the goal of prolonging the lives of patients A-G and was in accordance with their wishes, the record lacks any reference to pervasive standards outlining physician obligations relative to the extraordinary circumstances of terminally ill patients with advanced, late-stage disease. As Aral’s testimony is unsupported by an evidentiary foundation and the Bureau of Professional Medical Conduct offered no other proof, we would find the Committee’s determination to be fatally flawed, fundamentally unfair and affected by an error of law. Matter of Yi v New York State Bd. for Professional Med. Conduct, 2024 NY Slip Op 01955, Third Dept 4-11-24

Practice Point: In an administrative proceeding which resulted in the revocation of petitioner’s medical license, two dissenter’s argued the evidence used by respondent’s expert to determine the required standard of care was only advisory in nature and therefore insufficient, especially as that standard was applied to the consensual aggressive treatment of terminally ill patients.

 

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