You are here: / Evidence
,

THE MAJORITY AFFIRMED DEFENDANT’S CONVICTIONS FOR TWO SEPARATE MURDERS WHICH WERE TRIED TOGETHER; A TWO-JUSTICE DISSENT ARGUED THE TWO PROSECUTIONS SHOULD HAVE BEEN SEVERED BECAUSE OF THE WEAKNESS OF THE EVIDENCE AND THE PROBABILITY THE JURY WOULD NOT CONSIDER THE EVIDENCE OF EACH MURDER SEPARATELY (THIRD DEPT).

The Third Department affirmed defendant’s convictions over a two-justice dissent arguing that the two charged murders should have been tried separately:

Defendant argued that the People had joined “two underwhelming cases” in hopes that the jury would be more likely to convict a “common suspect.” In opposing the motion, the People argued that the counts in the indictment were properly joinable pursuant to CPL 200.20 (2) (c) and, among other things, the People planned to call two incarcerated individuals who were housed with defendant and to whom defendant made certain admissions. At trial, both of the incarcerated individuals and the medical examiner, among others, provided testimony relevant to each of the two victims. Defendant’s motion was facially devoid of any good cause showing. * * *

From the dissent:

… [T]he People chiefly relied on circumstantial evidence, the proof linking defendant to either murder is not overwhelming, the two incidents that form the basis of these charges took place 2½ years apart and there was no unique modus operandi to link the commission of the crimes to defendant … . Further, a review of the record demonstrates that the quantum of evidence relating to each incident was not substantially similar but, rather, proof relating to the second murder is significantly more abundant in quantity and significant in scope. Despite County Court’s instruction to the jury to consider the evidence separately, there was a substantial likelihood that the jury “aggregate[d] the evidence relating to each incident” … , as it is much more likely that the jury would focus on the abhorrent common nature of the crimes than to focus on the fundamental differences of proof … . People v Mero, 2023 NY Slip Op 06000, Third Dept 11-22-23

 

,

ALTHOUGH DEFENDANT WAS IN A PRISON AS A VISITOR WHEN THERE WAS A CANINE ALERT TO DRUGS ON HER PERSON, THE CIRCUMSTANCES WERE SUCH THAT ANY QUESTIONING SHOULD HAVE BEEN PRECEDED BY THE MIRANDA WARNINGS; A REASONABLE PERSON WOULD NOT HAVE FELT FREE TO LEAVE; BECAUSE THEY WERE CLOSE IN TIME, BOTH HER ORAL STATEMENT AND HER POST-MIRANDA WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, determined the defendant, who, as a visitor in a prison, was taken aside by an investigator after a canine alert to the presence of drugs on her person, was subjected to “custodial interrogation” requiring suppression of her admission to having drugs and her subsequent written statement:

… [W]hen the canine alerted, the metal door that defendant had just passed through was closed and could only be opened by a security officer. In view of this particular setting, a reasonable person innocent of wrongdoing would not have felt that he or she was free to leave.

… [T]aking into account that the investigator took defendant aside because a canine had just alerted, as well as the purpose of having a canine at a security checkpoint, the investigator’s inquiry of defendant as to why she thought the canine alerted was not merely investigatory or a request for pedigree information. Rather, it was accusatory and designed to elicit an incriminating response. Under these particular circumstances, defendant made the initial oral statements in a custodial setting, thereby requiring Miranda warnings. In the absence of such warnings, the initial oral statements should have been suppressed … .

As to the written statement, it was given after Miranda warnings were issued. To that end, “where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . The record reveals that defendant was interviewed by the same person and in the same room, that she gave her written statement almost immediately after the investigator’s initial inquiry as to why she thought the canine alerted and that the whole process took less than 30 minutes without any breaks. Accordingly, the written statement should have been suppressed as being tainted by the improper questioning by the investigator … . People v Kelly, 2023 NY Slip Op 06003, Third Dept 11-22-23

Practice Point: Although not always the case re: a visitor in a prison, here the circumstances warranted finding that defendant was “in custody” when she was asked a question by a prison investigator after a canine alert to drugs on her person. Because the question preceded the Miranda warnings, her statement should have been suppressed.

Practice Point: Here defendant’s post-Miranda written statement, made 30 minutes after her unwarned oral statement, should have been suppressed.

 

, ,

THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing that his opinion would have been influenced by Pinzer’s findings. The driver lost control of the car which flipped several times. The defendant survived and the other occupant was ejected from the car and died. The withheld expert evidence called into question various aspects of law enforcement’s investigation of the accident, the speed of the car at the time of the accident, for example:

Silver … testif[ied] at the hearing that, although knowledge of [Pinzer’s conclusions] would not have changed his ultimate conclusion as to who was operating the vehicle, it did have a direct and significant impact on his methodology and findings. For example, had he known that the data was corrupted, he would have performed his analysis differently and explained to the jury why law enforcement’s data was unreliable; he would have also been able to rebut any challenge to his credibility for the use of multiple formulas and his own data. He also averred that, in light of the new information regarding the data, his trial testimony as to the vehicle’s speed prior to the accident — 55 to 65 miles per hour — was overstated. * * *

… [I]n view of the character of the withheld information here, the misleading disclosure that was made, the manner in which the prosecutor elected to act on Silver’s testimony of defendant’s innocence and the circumstantial nature of this case, we agree with defendant that Pinzer’s opinion … must be considered favorable to the defense. * * *

… Pinzer was an arm of the prosecution, acting on the government’s behalf, and the People had a duty to learn of his opinion, which “directly relates to the prosecution or investigation of . . . defendant’s case” … . * * *

… [T]here was no reasonable possibility that the People’s failure to disclose Pinzer’s opinion did not impact the verdict … . The prosecutor’s cross-examination of Silver and his statements in summation — which sought to both bolster the legitimacy of police work that he should have known was faulty and impugn the credibility of Silver for not exclusively relying upon same — “compounded the prejudice” to defendant … . People v Hoffman, 2023 NY Slip Op 06004, Third Dept 11-22-23

Practice Point: Here, in this vehicular homicide case, the People did not disclose the conclusions reached by their accident-reconstruction expert, who was not called to testify at trial. The defense accident-reconstruction expert would have changed some of his conclusions had he been aware of the People’s expert’s analyses. Withholding the People’s expert’s findings from the defense was a Brady violation requiring reversal and a new trial.

 

, ,

A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),

The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. There was no evidence anyone got out of the car on the driver’s side. The defendant was found by the police lying in the grass near the car. Two of the people who got out of the car were dressed in clothes similar to those seen in the poor-quality video of the shooting:

“[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” … . Viewing the evidence in a neutral light, the People failed to prove beyond a reasonable doubt that defendant was the shooter. The conviction must therefore be reversed as the verdict is against the weight of the evidence … . People v Jones, 2023 NY Slip Op 06007, Third Dept 11-22-23

Practice Point: This decision demonstrates the difference between “legally sufficient evidence,” which will get by a motion for a trial order of dismissal, and a “weight of the evidence” analysis which results in reversal despite the presence of “legally sufficient evidence.” Two occupants of the car which was involved in the shooting had clothes similar to the clothes worn by the shooter as seen in a poor quality video. Although the driver was the shooter, there was no evidence anyone got out of the driver’s side of the car after it was stopped. The People therefore did not prove the identity of the shooter beyond a reasonable doubt. The conviction was supported by “legally sufficient evidence.” But the conviction was reversed as “against the weight of the evidence.”

 

, , ,

PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it:

“A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action . However, where an endorsement is on an allonge and not on the note itself, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” as required by UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Here, the plaintiff failed to establish her status as holder of the note at the time the action was commenced. Although the note was executed in favor of the decedent, the copy of the note attached to the complaint contains two purported endorsements in favor of nonparties, and the plaintiff failed to show that an allonge containing an additional endorsement back to the decedent was firmly affixed to the note … . Thompson v Seay, 2023 NY Slip Op 06072, Second Dept 11-22-23

Practice Point: Where the note and the endorsements do not comply with the requirements of UCC 3-202, plaintiff has not demonstrated standing to bring the foreclosure action.

 

, ,

FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:

Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .

Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23

Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.

 

,

TWO PRIOR POSSESSION OF A WEAPON INCIDENTS IN 2006 AND 2007, WHERE DEFENDANT CLAIMED THE WEAPONS BELONGED TO ANOTHER AND HE WAS UNAWARE OF THEIR PRESENCE, SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX IN THIS 2017 POSSESSION OF A WEAPON PROSECUTION, WHERE DEFENDANT CLAIMED THEY WERE PLACED IN THE VEHICLE BY ANOTHER WITHOUT HIS KNOWLEDGE; THERE WAS A CONCURRENCE AND A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a concurrence and a three-judge dissent, determined evidence of two prior possession-of-a-weapon incidents in 2006 and 2007, one uncharged and one misdemeanor, should not have been admitted under Molineux in the instant 2017 weapons-possession prosecution. In the 2006 and 2007 cases, defendant claimed the weapons belonged to another and he wasn’t aware of their presence. In the 2017 case defendant claimed someone else put the weapons in his vehicle without his knowledge. The weapons were legally purchased and registered to the defendant in Florida:

During an inventory search, the police recovered various items, including two small bags of marijuana and cash. They also found a loaded .45 caliber gun in the truck’s center console, as well as three handguns and ammunition in the flatbed area; each firearm was legally purchased and registered in Telfair’s name in Florida. The defendant was charged with several crimes related to possession of weapons and ammunition, as well as various vehicle and traffic violations.

The People moved under People v Molineux, 168 NY 264 (1901) to introduce evidence of two prior incidents involving Telfair’s possession of a weapon: a 2006 uncharged crime and a 2007 misdemeanor conviction for weapon possession. The People expected that Telfair would claim at trial that someone else had packed his truck and unbeknownst to him, placed his guns inside it, and the prior acts would show the defendant actually knew he possessed the firearms on the day of his arrest. Defense counsel responded that given the temporal remoteness and dissimilarity of the prior incidents, they had “little, if any, probative value” and were highly prejudicial, in part because the 2007 conviction concerned the same charge for which Telfair was now on trial. When asked whether he would assert that Telfair did not know the guns were in his car, defense counsel did not disclaim the defense. * * *

The 2006 and 2007 incidents were neither very similar nor close in time to the 2017 incident. Just the opposite: they involved different guns, different sets of circumstances, different excuses, and occurred more than 10 years earlier. People v Telfair, 2023 NY Slip Op 05965, CtApp 11-21-23

Practice Point: This case must be read carefully and repeatedly, as it illustrates subtle but profoundly important restrictions on the admissibility of Molineux evidence.

 

,

THE TRAFFIC STOP OF A BICYCLIST IS A SEIZURE REQUIRING REASONABLE SUSPICION OF CRIMINAL ACTIVITY OR PROBABLE CAUSE DEFENDANT HAS VIOLATED THE RULES OF THE ROAD (VEHICLE AND TRAFFIC LAW, NYC ADMINISTRATIVE CODE, ETC.); HERE THE STATEMENTS MADE BY THE DEFENDANT AND THE GUN SEIZED FROM HIM AFTER THE STOP SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined a traffic-stop of a bicyclist is a seizure and requires reasonable suspicion of criminal activity or probable cause defendant violated the rules of the road (Vehicle and Traffic Law, NYC Administrative Law, etc.). Here the defendant was riding in the middle of the road such that cars avoided him, was holding something in his waistband, and had only one had on the handlebars. He was not charged with any violations of the rules of the road. When stopped the defendant admitted he had a gun which was seized. Defendant’s statements and the gun should have been suppressed:

“Like all seizures, the officer’s action[s]” during a traffic stop “must be justified at its inception” … . Here, the officers’ actions were unjustified from the beginning because, as the prosecution concedes, the police possessed neither probable cause of a VTL violation nor reasonable suspicion of criminality … . Although the officer vaguely commented during the suppression hearing that defendant was riding “in a somewhat reckless manner,” he did not testify that he suspected a VTL violation—let alone that he had probable cause of one Instead, the officer testified that the primary motivation for the stop was that defendant was “holding an object in his waistband,” but admitted that he did not know what the “object” was, except that it was “bulky.” This observation of course fell well short of establishing reasonable suspicion of criminality … . Indeed, at no point before the stop did the officers suspect defendant was carrying contraband and, in fact, they were “caught . . . off guard” after the stop, when defendant admitted that he was carrying a gun. * * *

From the dissent:

A police officer observed defendant Lance Rodriguez riding a bicycle while clutching a bulky object at his waistband. The officer asked defendant to stop and, upon doing so, defendant admitted that he was carrying a gun. Today, the majority abandons this Court’s long-settled precedent, overturns a gun conviction stemming from reasonable police action, and creates a new rule that transforms any stop of a bicycle from a facts and circumstances inquiry into a per se seizure. People v Rodriguez, 2023 NY Slip Op 05972, CtApp 11-21-23

Practice Point: The traffic stop of a bicyclist is a “seizure” requiring reasonable suspicion of criminal activity or probable cause to believe the bicyclist has violated the rules of the road.

 

, , ,

THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:

Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .

From the dissent:

At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23

Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.

 

, , , ,

DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissent, rejected defendant’s challenges to the inventory search and to purported prejudicial testimony allowed by the trial judge. Defendant’s constitutional challenge to New York’s weapons-possession regime rejected as unpreserved:

Defendant Carlos L. David challenges his conviction for two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several grounds. He argues that the police recovered the handguns that gave rise to his conviction during an invalid inventory search, and that Supreme Court improperly allowed prejudicial testimony at his trial. Neither argument provides grounds for reversal. David additionally argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for the reasons set forth below, we do not reach it. People v David, 2023 NY Slip Op 05970, CtApp 11-21-23

Practice Point: The constitutional challenges to New York’s weapons-possession regime rejected as unpreserved.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy