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ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, although testimony by a detective about a phone conversation with defendant’s wife (who had since recanted and avoided testifying) violated defendant’s right to confront witnesses, the diluted strength of the phone-call evidence coupled with the striking of the detective’s testimony preserved the fairness of the trial. Defendant’s wife was a witness to the stabbing of the victim. The victim knew the defendant and identified him as the attacker. Defendant’s wife first told the police defendant was the attacker but later recanted and she could not be found at the time of trial. The detective’s testimony did not identify the wife as the person he talked to on the phone but the jury could have inferred it was she and that she identified the defendant as the attacker. However, since the detective had also talked to the victim, the jury could also have inferred it was the victim’s statement that led the detective to the defendant:

Here, the detective did not expressly state that the wife was a witness and that she had identified defendant as the attacker. While the testimony supported an inference to that effect, there was another countervailing inference —— as discussed above, the detective may have identified defendant as a suspect based on information provided by the victim to the police at the hospital and passed on to the detective once he took the case, but before the detective spoke to the wife. This inference also flowed logically from the victim’s testimony that the wife was with the victim when he was attacked by defendant, particularly because the jury heard this testimony immediately before the detective testified. As such, the jury could reasonably infer that the police knew about the wife from the victim and that his statements, relayed to the detective during the briefing from the Night Watch Unit, led the police to treat defendant as a suspect. Given this context, the testimony was neither powerfully incriminating nor, as the defendant argues, did it alone transform the entire case from that in which the People presented a single eyewitness to a case with two eyewitnesses identifying defendant as the perpetrator. People v Stone, 2017 NY Slip Op 03559, CtApp 5-4-17

CRIMINAL LAW (ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/EVIDENCE (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/HEARSAY (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)

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NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined plaintiff chef’s failure to allege out-of-pocket loss in this fraudulent inducement action required dismissal of the complaint for failure to state a cause of action. Plaintiff was hired by defendant restaurant (Chipotle) to develop a ramen restaurant chain. Plaintiff was an at will employee by the terms of his contract. All went well until plaintiff was told defendant had contracted with another chef for the same service, the deal had fallen apart, and the other chef would sue upon the opening of the ramen restaurant. Plaintiff was fired after confronting defendant about the deal with the other chef. Plaintiff alleged he was fraudulently induced to contract with Chipotle in that he never would have entered the agreement had he been informed of the failed deal with the other chef:

In New York, as in multiple other states, “‘[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the ‘out-of-pocket’ rule” … . Under that rule, “[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained . . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud” … . Moreover, this Court has “consistent[ly] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and indeed . . . the very existence of which is completely undeterminable and speculative” … . Connaughton v Chipotle Mexican Grill, Inc., 2017 NY Slip Op 03445, CtApp 5-2-17

FRAUD (NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/CONTRACT LAW (FRAUDULENT INDUCEMENT, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/FRAUDULENT INDUCEMENT (CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)

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WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the warrantless search of a parolee’s empty car and seizure of a firearm by police officers was lawful. Defendant parolee argued only a parole officer, not a police officer, could conduct a lawful search. The Court of Appeals held that a parolee’s reduced expectation of privacy applied irrespective of whether a parole or police officer conducted the search:

In Huntley [43 NY2d 175, 181 …] we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer … . Nevertheless, we concomitantly observed that, “in any evaluation of the reasonableness of a particular search or seizure,” whether undertaken by parole or police officers, “the fact of defendant’s status as a parolee is always relevant and may be critical” … .

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional … . The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant’s vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives’ earlier visit and the warmth of the hood. In light of this tip, taken together with defendant’s reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant’s vehicle was lawful and reasonable … . People v McMillan, 2017 NY Slip Op 03446, CtApp 5-2-17

 

CRIMINAL LAW (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SEARCH AND SEIZURE (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SUPPRESSION (CRIMINAL LAW, (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/PAROLEES (REDUCED EXPECTATION OF PRIVACY, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)

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EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION’S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE’S CASE TO PROVE INTENT.

The Court of appeals, in a full-fledged opinion by Judge DiFiore, determined that even though defendant relied solely on the prosecution's evidence to raise the agency defense to the charged drug sale, Molineux evidence of defendant's prior conviction for a drug sale was admissible in the People's direct case to prove intent:

… [D]efendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People's witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant's prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant's prior drug sale conviction on the issue of intent in their case-in-chief … . People v Valentin, 2017 NY Slip Op 03444, CtApp 5-2-17

CRIMINAL LAW (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/EVIDENCE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/AGENCY DEFENSE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/MOLINEUX EVIDENCE (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)

JUDGE’S FIRST AGREEING WITH PROSECUTION’S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR.

The Court of Appeals, reversing defendant's conviction, in a very brief memorandum, determined the trial judge's decision not to charge the jury with constructive possession and then giving the charge was not harmless error:

Although we reject defendant's contention that the evidence presented at trial did not support a charge of constructive possession, we nevertheless conclude that defendant is entitled to a new trial. The trial court erred in that it agreed to the People's request at the charge conference not to charge the jury on constructive possession, but then ultimately provided a constructive possession charge to the jury, resulting in prejudice to defendant … . People v Smalling, 2017 NY Slip Op 03442, CtApp 5-2-17

CRIMINAL LAW (JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/JURY INSTRUCTION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)

WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurring opinion and an extensive dissenting opinion, determined that the Criminal Procedure Law (CPL) did not allow a motion to quash a warrant issued pursuant to the federal Stored Communications Act (SCA) and did not allow an appeal from the denial of the motion. The motions and appeals were brought by Facebook in response to SCA warrants seeking information about subscriber accounts in connection with criminal investigations. Facebook argued that the warrants were actually subpoenas which could be quashed under civil standards. The Court of Appeals held the warrants were not subpoenas and the CPL therefore controlled:

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That the SCA draws a distinction between warrants and subpoenas, and the content that may be obtained therewith, is of critical significance with respect to a determination of appellate jurisdiction over the appeal from the denial of Facebook’s motion to quash. It is a fundamental precept of the jurisdiction of our appellate courts that “‘[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute'” … . No provision of the Criminal Procedure Law articles that govern appeals — which are among “‘the most highly structured and highly particularized articles of procedure'” … — authorizes an appeal to either an intermediate appellate court or to this Court from an order denying a motion to quash or vacate a search warrant … . Moreover, no civil appeal may be brought from an order entered in a criminal action or proceeding … . * * *

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In the instant matter, Facebook concedes that an order addressing a motion to quash a warrant is not appealable, but Facebook contends — and the dissent agrees — that, despite being denominated as “warrants,” SCA warrants are more analogous to subpoenas than to traditional search warrants involving tangible property because they compel third parties to disclose digital data. Thus, Facebook and the dissent urge us to treat Supreme Court’s first order denying its motion to quash the warrants as an appealable order denying a motion to quash subpoenas. This argument is unpersuasive. Matter of 381 Search Warrants Directed to Facebook, Inc., 2017 NY Slip Op 02586, CtApp 4-4-17

 

CRIMINAL LAW (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/STORED COMMUNICATIONS ACT (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/SEARCH AND SEIZURE  (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/SUBPOENAS (STORED COMMUNICATIONS ACT, WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)/FACEBOOK  (WARRANTS ISSUED TO FACEBOOK UNDER THE STORED COMMUNICATIONS ACT CANNOT BE TREATED AS CIVIL SUBPOENAS, UNDER THE CRIMINAL PROCEDURE LAW THERE IS NO MECHANISM FOR APPEALING THE DENIAL OF A MOTION TO QUASH A WARRANT)

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THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN.

The Court of Appeals, reversing the Appellate Division, over a dissenting memorandum, determined there was sufficient evidence to support the verdict that the New York Transit Authority was negligent and the negligence was the proximate cause of plaintiff’s injuries. The matter was remitted to the Appellate Division. Only the dissent discussed the facts. Plaintiff, who had just left a methadone clinic and had no memory of the accident, alleged he was struck by a subway train after he had fallen off a subway platform:

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FROM THE DISSENT:  Plaintiff — while “high on Xanax and Klonopin” — left a methadone clinic, fell off a subway platform, and was struck by a train. The jury returned a verdict apportioning fault 60% to plaintiff and 40% to defendant New York City Transit Authority (NYCTA), and awarding plaintiff a total of approximately $2 million in damages. Supreme Court set aside the verdict and dismissed the complaint. The Appellate Division affirmed. I agree with both lower courts, and therefore I dissent.

Plaintiff entered the subway station around 11:15 a.m. and was discovered injured on the tracks at 11:58 a.m. During those forty-three minutes, at least two trains passed through the station. Neither train operator saw plaintiff, although the operator of the second train reported observing white sneakers on the train tracks. Plaintiff had no memory of the incident, but contended at trial that the second train caused his injuries, and that the driver of that train had acted negligently. Obey v City of New York, 2017 NY Slip Op 02590, CtApp 4-4-17

 

NEGLIGENCE (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)/EVIDENCE (NEGLIGENCE, (THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT FINDING THAT THE NEW YORK TRANSIT AUTHORITY WAS NEGLIGENT AND THE NEGLIGENCE WAS THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, PLAINTIFF HAD FALLEN OFF A SUBWAY PLATFORM AND ALLEGED HE WAS STRUCK BY A TRAIN)

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THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, resolving a conflict between the 1st and 2nd Departments, determined a dispute about the reasonableness of the costs of temporarily relocating a tenant forced to vacate an uninhabitable building, as stated in a Notice of Lien, is not subject to summary disposition but rather must be resolved in a foreclosure proceeding. The 1st Department had erroneously held that such a lien imposed by the NYC Department of Housing Preservation and Development (HPD) could be summarily discharged if the relocation costs stated in the Notice of Lien were deemed unreasonable:

Facial invalidity [of a Notice of Lien] occurs only in limited circumstances not present here. In both cases at issue, the notices of lien contained all required elements under Lien Law § 9 and Administrative Code § 26-305 (4) (a) and were properly filed. While summary discharge is proper when a notice of lien includes non-lienable expenses … , the notices of lien here demonstrated no such defect. The notices stated that they sought “hotel expenses,” “administration costs,” and “relocation costs,” which sufficed to meet the requirement that the notice contain a statement of “the labor performed or materials furnished.” Rather than challenge those categories of expenses as “lienable,” both [property owners] object to the amount claimed for such expenses. Such a dispute is not properly resolved through a summary discharge proceeding. Rivera v Department of Hous. Preserv. & Dev. of the City of N.Y., 2017 NY Slip Op 02587, CtApp 4-4-17

LANDLORD-TENANT (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)/LIEN LAW (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)/MUNICIPAL LAW (NYC, THE REASONABLENESS OF THE COSTS OF TEMPORARILY RELOCATING A TENANT FORCED TO VACATE AN UNINHABITABLE BUILDING MUST BE DETERMINED IN A LIEN FORECLOSURE PROCEEDING, THE LIEN CANNOT BE SUMMARILY DISCHARGED BY FINDING THE COSTS AS STATED IN THE NOTICE OF LIEN FACIALLY UNREASONABLE)

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POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge, extensive, dissenting opinion, determined that the prosecutor’s use of a PowerPoint presentation of annotated trial exhibits during summation was proper because the annotations fairly described the evidence:

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At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel’s argument, or in the court’s admonitions. We reject defendant’s position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations. People v Anderson, 2017 NY Slip Op 02589, CtApp 4-4-17

CRIMINAL LAW (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/ATTORNEYS (CRIMINAL LAW, POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/PROSECUTORIAL MISCONDUCT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)/POWERPOINT (POWERPOINT PRESENTATION OF ANNOTATED TRIAL EXHIBITS DURING PROSECUTOR’S SUMMATION WAS PROPER BECAUSE THE ANNOTATIONS WERE CONSISTENT WITH THE TRIAL EVIDENCE)

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INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the inaccurate labeling of trial exhibits (photographs) in a PowerPoint presentation by the prosecutor during summation did not deprive the defendant of a fair trial. One photo, for example, was annotated with text indicating the photo depicted the defendant, but the witness who testified about the photo could not definitively say it was the defendant. The trial judge recognized the problem, stopped the PowerPoint presentation, and instructed the jury to disregard the slides:

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There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it … . If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence … . Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable … .

Here, defendant argues that he was deprived of a fair trial by the annotation of images of the trial exhibits to imply that the victim’s brother, in his testimony, had positively identified either his truck or defendant from the surveillance video because this misrepresented the witness’s testimony. Significantly, the trial court was very attuned to the annotated slides and, in the exercise of its discretion, ultimately stopped the slideshow and instructed the jury to disregard the slides … . To the extent any slides may have misrepresented the trial evidence, the trial court instructed the jury on more than one occasion that the attorneys’ arguments were not evidence and that the jury was the sole judge of the facts. Defense counsel also rejected the court’s offer of any less drastic relief after the denial of the mistrial motion. Thus, under these circumstances, defendant was not deprived of a fair trial. People v Williams, 2017 NY Slip Op 02588, CtApp 4-4-17

 

CRIMINAL LAW (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/ATTORNEYS (CRIMINAL LAW, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/PROSECUTORIAL MISCONDUCT  (INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)/POWERPOINT (CRIMINAL LAW, SUMMATION, INACCURATE ANNOTATIONS ON TRIAL EXHIBITS DISPLAYED BY THE PROSECUTOR IN A POWERPOINT PRESENTATION DURING SUMMATION DID NOT DEPRIVE THE DEFENDANT OF A FAIR TRIAL, THE TRIAL JUDGE TOOK APPROPRIATE STEPS TO ADDRESS THE PROBLEM)

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