You are here: / Evidence
,

ALTHOUGH DEFENDANT COMMITTED A HEINOUS SECOND DEGREE MURDER, THE PROOF OF THE STATUTORY ELEMENTS OF FIRST DEGREE MURDER WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s first degree murder conviction, determined that, although defendant committed a heinous murder, the statutory criteria for first degree murder were not met:

… [T]he evidence was legally insufficient to prove that defendant inflicted torture on the victim within the meaning of the statute in two respects. First, we conclude that defendant did not engage in a “course of conduct” with the intention of inflicting “extreme physical pain” on the victim. Extreme physical pain cannot be defined precisely. However, it cannot be reasonably doubted that the fatal blow to the victim’s neck caused extreme pain. Yet, that blow was a single act rather than a course of conduct. Thus, we find that defendant and his accomplices did not engage in a “course of conduct” involving the intentional infliction of extreme physical pain. Accordingly, the conduct at issue here does not satisfy the statutory definition of torture in that respect.

… [T]he record also fails to support the conclusion that defendant “relished” or “evidenced a sense of pleasure in the infliction of extreme physical pain.” In arguing to the contrary, the People point out that, after the homicide, defendant twice told other gang members that he had “hit [the victim] in the neck,” in a tone that the listener considered boastful. This did not meet the statutory standard. In our view, the statute contemplates evidence that the defendant savored the infliction of extreme pain in the process of inflicting the pain, and for its own sake. The record does not indicate that this occurred here … . People v Estrella, 2023 NY Slip Op 01240, First Dept 3-9-23

Practice Point: Here the evidence of two elements of first degree murder, torture and “relishing” the infliction of pain, were not proven. Therefore the first degree murder conviction was vacated.

 

,

THE HANDWRITTEN ADDITION TO THE PRINTED CONTRACT IS PRESUMED TO EXPRESS THE LATEST INTENTION OF THE PARTIES; HERE THE ENTRY CREATED AMBIGUITY IN THE “NO DAMAGES FOR DELAY” CLAUSE REQUIRING DISCOVERY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined a handwritten entry in a printed contract is presumed to express the latest intention of the parties and created ambiguity requiring discovery:

The subcontractor agreement between plaintiff and defendant JDS Construction Group LLC contains clauses precluding damages for delay. It also provides that if plaintiff’s work was “delayed or disrupted by fault of [JDS], Architect, or any other contractor, or by abnormal weather conditions, then the time fixed for the completion of the Work shall be extended for a period equivalent to the time actually lost, in the discretion of [JDS] and compensated for additional, mutually agreed to costs,” with the words in italics handwritten onto the typed agreement.

… [A] handwritten provision that conflicts with the language of the preprinted form document will control, “as it is presumed to express the latest intention of the parties” … . The handwritten amendment to the no-damages-for-delay clause renders the clause ambiguous as to whether plaintiff is entitled to be compensated for costs incurred as a result of such delays, which requires discovery to discern the parties’ intent … . Henick-Lane, Inc. v 616 First Ave. LLC, 2023 NY Slip Op 01163, First Dept 3-7-23

Practice Point: A handwritten entry in a printed contract is presumed to reflect the latest intention of the parties.

 

,

IN A REAR-END COLLISION, THE ALLEGATION THE CAR IN FRONT STOPPED SHORT DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court in this rear-end traffic accident case, determined the allegation that the car in front stopped short did not raise a question of fact and summary judgment should have been awarded to driver/owner of the car in front:

Plaintiff alleges that he was injured in a two-car collision while he was a passenger in a car driven by Morera and owned by Giovanni. According to plaintiff, defendant Dan Espeut, who was driving behind the Morera defendants’ car, rear-ended the Morera defendants’ car.

It is well-settled law that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence by the driver of the rear vehicle, and imposes a duty on the driver of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident … . Here, the Morera defendants made a prima facie showing of their entitlement to summary judgment by submitting Morera’s affidavit, in which he averred that he was driving straight and gradually applying his brakes because there was traffic ahead of him, and that as he was doing so, the Espeut vehicle rear-ended his vehicle … .

… Espeut’s affidavit, in which he averred that Morera stopped short in front of him after entering his lane of traffic, was insufficient to raise an issue of fact … . Moreover, Espeut had the obligation to maintain a safe distance between the vehicles, which, as the record evidence makes clear, he failed to do … . Obando v Espeut, 2023 NY Slip Op 01144, First Dept 3-2-23

Practice Point: In a rear-end collision case, the allegation by the driver of the rear-most car that the car in front stopped short is not a non-negligent explanation for the accident.

 

,

EVIDENCE OF NEGLECT BASED UPON ALCOHOL USE WAS INSUFFICIENT; THE BASIS WAS OUT-OF-COURT STATEMENTS OF THE CHILD WHICH WERE NOT CORROBORATED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the evidence of father’s neglect based upon alcohol use was insufficient:

… [A] preponderance of the evidence does not support a finding of neglect based on the father’s alcohol use or on any prior incidents of domestic abuse, as those findings were based on out-of-court statements of the child that were not sufficiently corroborated by any other evidence. Matter of Kaylee S. (Kyle L. S.), 2023 NY Slip Op 01150, First Dept 3-2-23

Practice Point: A neglect finding based upon uncorroborated out-of-court statements by a child is not supported by a preponderance of the evidence.

 

,

DEFENDANT’S CAR WAS STRUCK BY AN ONCOMING CAR WHICH CROSSED A DOUBLE YELLOW LINE; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE EMERGENCY DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined defendant’s motion for summary judgment, based on the emergency doctrine, should have have been granted. A car traveling in the opposite direction crossed a double yellow line into the path of defendant’s car:

Pursuant to the emergency doctrine, “those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” … . “Under appropriate circumstances, the existence of an emergency, as well as the reasonableness of the actor’s response to it, may be determined as a matter of law” … . “A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic, and such an event constitutes a classic emergency situation, thus implicating the emergency doctrine” … . Lizares v Conklin, 2023 NY Slip Op 01081, Second Dept 3-1-23

Practice Point: A driver is not obligated to anticipate that an oncoming car will cross a double yellow line into the driver’s lane. In such a situation, the emergency doctrine applies to insulate the driver from liability.

 

,

THE ALLEGATION THE CAR IN FRONT MADE A SUDDEN STOP DOES NOT RAISE A QUESTION OF FACT IN A REAR-END COLLISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the allegation plaintiff made a sudden stop in this rear-end collision case did not raise a question of fact about whether there was a non-negligent cause for the traffic accident:

… [T]he plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ assertion that it was a sudden stop of the plaintiff’s vehicle that caused the accident was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the rear-end collision … . Genao v Cassetta, 2023 NY Slip Op 01078, Second Dept 3-1-23

Practice Point: In a rear-end collision case, the allegation the car in front made a sudden stop does not raised a question of fact about whether there is a non-negligent explanation for the accident.

 

, , ,

DEFENDANT NYC HOUSING AUTHORITY (NYCHA) UNILATERALLY ADJOURNED THE 5O-H HEARING IN THIS SLIP AND FALL CASE AND ALLEGEDLY SENT A FOLLOW-UP LETTER TO PLAINTIFF; PLAINTIFF DENIED RECEIPT OF THE LETTER AND DEFENDANT IMPROPERLY SUBMITTED AN AFFIDAVIT OF SERVICE IN REPLY; THE AFFIDAVIT WAS NOT CONSIDERED; IN ADDITION, THE AFFIDAVIT DID NOT PROVE THE LETTER WAS MAILED TO PLAINTIFF (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the complaint against the NYC Housing Authority (NYCHA) in this slip and fall case should not have been dismissed based on plaintiff’s failure to attend the General Municipal Law 50-h hearing. The NYCHA unilaterally adjourned the hearing by follow-up letter. Plaintiff denied receipt of the follow-up letter and the NYCHA included an affidavit of service in its reply. The Second Department noted that the affidavit of service should not be considered because it was first submitted in reply. In addition, the affidavit did not present sufficient proof of mailing:

… [E]ven had the affidavit of service of the follow-up letter been submitted with the defendants’ moving papers, the mere assertion therein that the letter was mailed, unsupported by someone with personal knowledge of the mailing of the letter or proof of standard office practice to ensure that it was properly mailed, was insufficient to give rise to the presumption of receipt that attaches to letters duly mailed … . Inasmuch as there was no adequate proof that NYCHA served the follow-up letter adjourning the 50-h hearing, NYCHA failed to establish entitlement to such a hearing and that the plaintiff was precluded from commencing this action against NYCHA … . Acevedo v Hope Gardens I, LLC, 2023 NY Slip Op 01073, Second Dept 3-1-23

Practice Point: Yet again an affidavit did not prove a document was mailed because the affiant did not have personal knowledge of the mailing and there was no evidence of a standard office practice to ensure proper mailing.

 

,

EVIDENCE DEFENDANT COMMITTED A BANK ROBBERY ONE MONTH AFTER THE CHARGED MURDER WAS NOT ADMISSIBLE UNDER MOLINEUX TO FILL IN A GAP IN THE EVIDENCE OR EXPLAIN A RELATIONSHIP WITH A WITNESS OR TO SHOW A CONSCIOUSNESS OF GUILT; A WITNESS SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY DEFENDANT THREATENED TO KILL ANOTHER WITNESS UNDER THE “OPENING THE DOOR” THEORY BECAUSE THERE WAS NO MISLEADING TESTIMONY WHICH NEEDED TO BE CORRECTED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the evidence defendant committed a bank robbery one month after the murder should not have been admitted. The Second Department also found that the evidence defendant had threatened to kill another witness should not have been admitted under the “opening the door” theory:

… [T]he evidence of the bank robbery did not fill a gap in the story or illuminate the defendant’s motive, nor was it necessary to explain the nature of the relationship between the defendant and the witness since the nature of the relationship had already been explained by the witness in detail … .

… Supreme Court should not have admitted the testimony regarding the bank robbery as evidence of the defendant’s consciousness of guilt. “Evidence of flight is admissible as circumstantial evidence of consciousness of guilt” … . However, here, the testimony, which contained allegations that the defendant robbed a bank in order to fund his evasion of authorities, was unnecessary given that the People had already established that the defendant fled to Florida and Texas after the murder … .

… Supreme Court also erred in its determination that the defendant “opened the door” on cross-examination to allow the People to elicit testimony that the defendant previously threatened to kill another witness. “The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court” … . “The ‘opening the door’ theory must necessarily be approached on a case-by-case basis” … . “[A] trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … . Here, on cross-examination, defense counsel mostly questioned the witness about the previous lies that the witness told authorities related to certain observations that he made on the night of the murder, which the People had already elicited on direct examination. This did not create a “misleading impression” that required corrective testimony … . People v Smith, 2023 NY Slip Op 01106, Second Dept 3-1-23

Practice Point: This decision demonstrates the limits that should be placed on allowing Molineux (other-crime) evidence to come in. Evidence defendant committed a bank robbery after the charged murder was not necessary to fill in a gap in the proof, explain a relationship with a witness or to demonstrate a consciousness of guilt. Testimony the defendant threatened to kill another witness was not admissible under the “opening the door” theory because there was no misleading testimony to be corrected.

 

, ,

AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT).

The Second Department, reversing the judgment after trial, determined the trial judge should not have, sua sponte, announced that an important witness for plaintiffs (Awad) was unavailable due to illness, struck the witness’s testimony and admitted the witness’s deposition testimony:

During his cross-examination, Awad fell ill, and was taken from the courthouse by ambulance. …

CPLR 3117(a)(3)(iii) permits the reading of a witness’s deposition at trial where the court finds “that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment” … . In exercising its discretion under CPLR 3117, “the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present [its] case” … .

Here, there is no information in the record regarding the nature of Awad’s illness or the treatment he received, or whether he was hospitalized and for how long. Thus, the Supreme Court’s sua sponte determination that Awad was unavailable to testify due to sickness or infirmity lacked support in the record, and the court improvidently exercised its discretion in determining that Awad’s deposition testimony was admissible under CPLR 3117(a)(3)(iii) … . 244 Linwood One, LLC v Tio Deli Grocery Corp., 2023 NY Slip Op 01072, Second Dept 3-1-23

Practice Point: Here a witness became ill during cross-examination and was taken to the hospital by ambulance. Without putting any additional information on the record, the judge declared the witness unavailable, struck his testimony and admitted his deposition. Because there was no support in the record for the judge’s (sua sponte) determination the witness would not be able to testify, the judgment after trial was reversed.

 

,

ALTHOUGH DEFENDANT AND DEFENDANT’S SISTER TOLD THE COMPLAINANT TO HAVE SEX WITH THEIR BOYFRIENDS, THERE WAS NO EVIDENCE OF FORCIBLE COMPULSION; DEFENDANT, WHO RECORDED SOME OF THE SEXUAL ACTS, HAD A REASONABLE BELIEF COMPLAINANT WAS OVER 17; RAPE, CRIMINAL SEXUAL ACT AND USE OF A CHIILD IN A SEXUAL PERFORMANCE CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s rape first, criminal sexual act firs and use of a child in a sexual performance convictions, determined there was no evidence complainant was forced to have sex and defendant had a reasonable belief the complainant was not under 17. Complainant was told by defendant to have sex with her boyfriend (Graham) in a group setting and defendant recorded some of the acts on her phone. Defendant’s sister also told complainant to have sex with her boyfriend (Wapples). Although complainant felt uncomfortable, she complied:

There was no evidence in this case that either Graham or Wapples used actual physical force to compel the complainant to engage in sexual intercourse or oral sexual conduct, and the complainant herself testified that she was not explicitly threatened by any of the perpetrators. To the extent that this case turned on whether there was sufficient evidence of an implied threat, we conclude, viewing the evidence in the light most favorable to the People, that there was not sufficient evidence of an implied threat here. * * *

… [W]e also vacate the defendant’s conviction of use of a child in a sexual performance … . The complainant testified at trial that she had “lied” … about her age, and that she had not ever told the defendant how old she really was. A trial witness who had rented rooms to … the complainant testified that the complainant stated that she was in her early 20s. People v Patterson, 2023 NY Slip Op 01103, Second Dept 3-1-23

Practice Point: Here, although the defendant told the complainant to have sex with her boyfriend, there was no evidence of forcible compulsion. There also was no evidence defendant, who recorded some of the sexual acts, was aware the complainant was less than 17. Rape, criminal sexual act and use of a child in a sexual performance convictions reversed.

 

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