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VIOLATION OF CIVIL CONTEMPT ORDER PROPERLY ADMITTED IN GRAND LARCENY TRIAL TO SHOW LARCENOUS INTENT.

The Fourth Department, over a two-justice dissent, determined defendant’s violation of a civil contempt order was properly admitted in defendant’s grand larceny trial to show larcenous intent:

The … order directed defendant’s businesses to turn over all monies they had received as a result of defendant diverting credit card proceeds from Webster Hospitality Development LLC (WHD), a company in which defendant held majority ownership and which was in receivership, to undisclosed bank accounts maintained for defendant’s businesses. Contrary to defendant’s contention, the contempt order does not constitute a finding that defendant stole the money; rather, it demonstrates that defendant’s businesses failed to abide by the earlier order to return money to WHD and to provide certain documentation to the receiver. We thus conclude that the contempt order was properly admitted as relevant evidence of defendant’s intent to deprive WHD of the money by “withhold[ing] it or caus[ing] it to be withheld from [WHD] permanently” (§ 155.00 [3]; see People v Molineux, 168 NY 264, 293). Moreover, we note that “[l]arcenous intent . . . is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant’s actions’ ” … . Here, the contempt order had significant probative value inasmuch as it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive WHD of the diverted money permanently. The court therefore properly concluded that “the probative value of the evidence outweighed its prejudicial effect” … . People v Frumusa, 2015 NY Slip Op 09718, 4th Dept 12-31-15

CRIMINAL LAW (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/EVIDENCE (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/PRIOR CRIMES AND BAD ACTS (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/MOLINEUX EVIDENCE  (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)

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PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL.

The Fourth Department, in the interest of justice, reversed defendant’s conviction based upon prosecutorial misconduct in summation:

On summation, the prosecutor repeatedly invoked a “safe streets” argument … , even after Supreme Court sustained defense counsel’s objection to the prosecutor’s use of that argument; denigrated the defense by calling defense counsel’s arguments “garbage,” “smoke and mirrors,” and “nonsense” intended to distract the juror’s focus from the “atrocious acts” that defendant committed against the victim … ; improperly characterized the defense as being based on a “big conspiracy” against defendant by the prosecutor and the People’s witnesses … ; and denigrated the fact that defendant had elected to invoke his constitutional right to a trial … . Perhaps most egregiously, given that “the potential danger posed to defendant when DNA evidence is presented as dispositive of guilt is by now obvious,” the prosecutor engaged in misconduct when she mischaracterized and overstated the probative value of the DNA evidence in this case … .

We recognize, of course, that “[r]eversal is an ill-suited remedy for prosecutorial misconduct” … . It is nevertheless mandated when the conduct of the prosecutor “has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law. In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached” … . In view of the substantial prejudice caused by the prosecutor’s misconduct in this case, including the fact that the evidence of guilt is less than overwhelming … , we agree with defendant that reversal is required. People v Jones, 2015 NY Slip Op 09773, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR’S REMARKS IN SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (REMARKS IN SUMMATION REQUIRED REVERSAL)

LABOR LAW 241 (6) CAUSE OF ACTION STEMMING FROM EYE INJURY ASSOCIATED WITH USE OF A NAIL GUN PROPERLY SURVIVED SUMMARY JUDGMENT.

Plaintiff was injured when using a nail gun. A nail ricocheted and struck his eye. The Fourth Department determined defendant was not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action because eye protection was required by the Industrial Code, and plaintiff was not entitled to summary judgment because there were questions of fact whether eye protection was available to the plaintiff. The court noted that the risk of eye injury from use of a nail gun is more apparent than any such risk associated with manual hammering:

We reject defendant’s contention that it was entitled to summary judgment pursuant to this Court’s holding in Herman v Lancaster Homes (145 AD2d 926, 926, lv denied 74 NY2d 601). Unlike the circumstances in Herman, plaintiff herein was not manually hammering nails but, rather, was operating a pneumatic nail gun when a nail ricocheted and penetrated his right eye. In our view, “the dangers a nail gun present[s] to the eyes are more apparent tha[n] the dangers of manual hammering” … and the plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes” (12 NYCRR 23-1.8 [a]). Contrary to defendant’s further contention, based upon the record before us, we conclude that plaintiff established as a matter of law that the regulation applies, and that defendant failed to raise a triable issue of fact on that point … .

We agree with defendant, however, that the court erred in granting plaintiff’s motion inasmuch as defendant raised triable issues of fact whether it had violated 12 NYCRR 23-1.8 (a) and whether plaintiff was comparatively negligent … . Specifically, there is a triable issue of fact whether defendant provided eye protection, or made such available, to plaintiff on the day of the accident and, if so, whether plaintiff was comparatively negligent in refusing to use the eye protection. Summary judgment to plaintiff is therefore inappropriate … . We note, in any event, that “[e]ven assuming, arguendo, that plaintiff[] established that defendant violated [12 NYCRR 23-1.8 (a)], any such violation does not establish negligence as a matter of law but is merely some evidence to be considered on the question of a defendant’s negligence’ ” … . Quiros v Five Star Improvements, Inc., 2015 NY Slip Op 09713, 4th Dept 12-31-15

LABOR LAW (241 (6) CAUSE OF ACTION STEMMING FROM USE OF NAIL GUN)/NAIL GUN (LABOR LAW 241 (6) CAUSE OF ACTION BASED UPON EYE INJURY)

QUESTION OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY WAS COMPARATIVELY NEGLIGENT IN COLLISION WITH DRIVER WHO FAILED TO YIELD THE RIGHT OF WAY.

The Fourth Department determined there was question of fact whether the driver of a car with the right of way (defendant) was comparatively negligent in striking a car (driven by Deering) which failed to yield the right of way at an intersection:

There is no dispute that Deering was negligent in failing to yield the right-of-way or that defendant was entitled to anticipate that she would obey the traffic laws that required her to yield the right-of-way to him … . Nevertheless, in moving for summary judgment, defendant had the burden of establishing not only that Deering was negligent, but also that he was free of comparative fault … . Defendant failed to meet that burden, inasmuch as his own submissions raised triable issues of fact whether he was negligent … . At his deposition, defendant testified that he saw the Deering vehicle at the intersection after he traveled over an elevated overpass on Route 5 that is approximately 300 yards from the intersection, but he looked away and did not see the Deering vehicle before or at the moment of impact. “[I]t is well settled that drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident,’ ” and defendant’s admitted failure to see the Deering vehicle immediately prior to the accident raises an issue of fact whether he violated that duty … . Thus, even though defendant had the right-of-way as he approached Bayview Road, he “may nevertheless be found negligent if he . . . fail[ed] to use reasonable care when proceeding into the intersection’ . . . A driver cannot blindly and wantonly enter an intersection’ ” … . Deering v Deering, 2015 NY Slip Op 09715, 4th Dept 12-31-15

NEGLIGENCE (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)/RIGHT OF WAY (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)

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STATEMENT MADE AFTER UNEQUIVOCAL REQUEST FOR COUNSEL SHOULD HAVE BEEN SUPPRESSED, NEW TRIAL ORDERED.

The Fourth Department reversed defendant’s conviction and ordered a new trial after concluding defendant’s statements to police should have been suppressed. After defendant told police she needed to talk to a lawyer, the police questioned her further during a “smoke break:”

After answering questions for approximately an hour and ten minutes, defendant said, “I think I need to talk to an attorney.” In response, the first investigator stated, “Would you like to talk to one? If you think that, that’s fine. That’s up to you.” Defendant replied, “I need to,” before going on to state that she would never have bad feelings toward the boy and genuinely cared about him. The questioning then ceased, and the first investigator allowed defendant to go outside with the second investigator and a female Child Protective Services worker to smoke a cigarette.

While defendant was smoking in the parking garage, the second investigator engaged her in a lengthy conversation. Unbeknownst to defendant, the conversation was being digitally recorded by the second investigator. During the conversation, defendant made numerous admissions, all but confessing that she had engaged in sexual activity with the boy. * * *

… [W]e conclude that, although defendant’s statement “I think I need to talk to an attorney” may not, standing alone, constitute an unequivocal invocation of the right to counsel … , her subsequent statement “I need to”—made in reply to the first investigator stating “Would you like to talk to one? If you think that, that’s fine. That’s up to you”—removed any ambiguity and made clear that defendant was requesting the assistance of counsel … . People v Kennard, 2015 NY Slip Op 09729, 4th Dept 12-31-15

 

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PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION (CONVICTION NOT REVERSED HOWEVER); INSUFFICIENT EVIDENCE OF PHYSICAL INJURY TO SUPPORT ASSAULT 3RD CONVICTION.

The Fourth Department admonished the prosecutor for improper remarks in summation, but did not reverse the conviction. The court found the evidence of “physical injury” insufficient to support the Assault 3rd conviction and reversed that unpreserved error under a “weight of the evidence” analysis:

Despite this Court’s repeated admonitions to prosecutors not to engage in misconduct during summation, the prosecutor improperly referred to facts not in evidence when he insinuated that the victim regretted that she did not get out of defendant’s vehicle … . The prosecutor also improperly appealed to the jury’s sympathy and bolstered the victim’s credibility, and did so repeatedly, by commenting on how difficult it was for her to recount her ordeal, first to the police, then before the grand jury, and finally in her trial testimony … . In addition, the prosecutor improperly suggested that the jury experiment on themselves to see how quickly bite marks fade … . Nevertheless, “[a]lthough we do not condone the prosecutor’s conduct, it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law’ ” … . We admonish the prosecutor, however, “and remind him that prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process’ ” … . * * *

We conclude, upon our independent review of the evidence, that the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury … . The indictment alleged that defendant caused physical injury to the victim “by striking her in the face.” Although the victim testified that defendant struck her in the face, and photographs of the victim showed swelling and discoloration of the left side of her face, the victim did not testify that she suffered substantial pain from that injury or that she sought medical attention for it … . People v Gibson, 2015 NY Slip Op 09722, 4th Dept 12-31-15

CRIMINAL LAW (PROSECUTOR ADMONISHED FOR IMPROPER REMARKS IN SUMMATION)/CRIMINAL LAW (ASSAULT 3RD CONVICTION NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PHYSICAL INJURY)/PROSECUTORIAL MISCONDUCT (IMPROPER REMARKS IN SUMMATION)/EVIDENCE (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY RE: ASSAULT 3RD CONVICTION)/ASSAULT 3RD (INSUFFICIENT EVIDENCE OF PHYSICAL INJURY)

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DEFENDANT’S REQUEST TO PROCEED PRO SE, MADE ON THE EVE OF TRIAL, WAS NOT UNTIMELY AND SHOULD NOT HAVE BEEN SUMMARILY DENIED ON THAT GROUND, NEW TRIAL ORDERED.

The Fourth Department determined defendant’s request to proceed pro se, made prior to the prosecution’s opening statement, was not untimely and should not have been summarily denied on that ground. A new trial was ordered:

… [T]he judgment of conviction should be reversed and a new trial granted because the court erred in summarily denying, as untimely, his request to proceed pro se … . “Although requests [to proceed pro se] on the eve of trial are discouraged, the Court of Appeals has found that a request may be considered timely when it is interposed prior to the prosecution’s opening statement,’ as here”… . People v Smith. 2015 NY Slip Op 09757, 4th Dept 12-31-15

CRIMINAL LAW (REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)/PRO SE (CRIMINAL LAW, REQUEST TO PROCEED PRO SE MADE ON EVE OF TRIAL NOT UNTIMELY, NEW TRIAL ORDERED)

53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS.

The Fourth Department determined a 53-month delay between the incident and indictment did not constitute a denial of due process. Defendant was charged with burglary, robbery and criminal possession of a weapon. He was convicted of criminal possession of a weapon. The court explained the analytical criteria re: speedy trial/due process and went through the facts in support of each of the criteria:

“A defendant’s right to a speedy trial is guaranteed by both the Constitution … and by statute … . A defendant may also challenge, on due process grounds, preindictment delay …, and “the factors utilized to determine if a defendant’s rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution” … . The inquiry involves weighing the factors enunciated in Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (Taranovich, 37 NY2d at 445…). “Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . People v Johnson, 2015 NY Slip Op 09449, 4th Dept 12-23-15

CRIMINAL LAW (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/SPEEDY TRIAL (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/PRE-INDICTMENT DELAY (53-MONTH DELAY DID NOT DENY DEFENDANT DUE PROCESS)

FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A NOTE FROM THE JURY REQUIRED REVERSAL.

The Fourth Department determined the trial judge’s failure to apprise counsel of the specific, substantive contents of a jury note requesting a readback of testimony required reversal (in the absence of preservation):

As the court brought the jury into the courtroom to respond to the first two notes, the jury gave a third note to the court. The court told the jury that it would respond to the first two notes at that time, and would then discuss the issue raised in the third note with counsel after sending the jury back to the jury room. The court stated that the “third note [had] not yet [been] shown to counsel nor have we had an opportunity to discuss it.” The record further reflects that the jury resumed its deliberations after the court provided requested testimony and instruction in response to the first two notes, and then rendered a verdict of guilty. The third note, which is included in the record, indicates that the jury was seeking the testimony of a particular witness on a specific topic, but there is nothing in the record indicating that the note was shown to counsel, or that it was read into the record before the jury rendered its verdict. Where, as here, “the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required” … , and we conclude that the “[c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict” … . People v Brink, 2015 NY Slip Op 09450, 4th Dept 12-23-15

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF JURY NOTE CONTENTS REQUIRED REVERSAL)/JURY NOTE (FAILURE TO APPRISE COUNSEL OF CONTENTS REQUIRED REVERSAL)/ORAMA ERROR (FAILURE TO APPRISE COUNSEL OF CONTENTS OF JURY NOTE REQUIRED REVERSAL IN THE ABSENCE OF PRESERVATION)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

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