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Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel

The Fourth Department, over a strong two-justice dissent, determined defendant’s motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People’s expert was allowed to testify about those prior consistent statements.  Defendant’s trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel’s failure to object to them constituted ineffective assistance:

… [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party’s case” … , here, the victim’s testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration … . In light of defense counsel’s opening statement that the relationship between defendant, the victim and the victim’s mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel’s failure to object to the prosecutor’s remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel’s summation challenging the credibility of the victim and her motivation for making the accusations …, we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel … . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14

 

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Father’s Parental Rights Should Not Have Been Terminated Pursuant to Social Services Law 384-b Which Is Relevant Solely to Destitute or Dependent Children

The Fourth Department determined father’s parental rights should not have been terminated pursuant to Social Services Law 384-b, which was not applicable:

Social Services Law § 384-b is entitled “Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights” (emphasis added). A destitute child is defined as a child “who is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care,” does not fit within the definition of an abused or neglected child and is without any parent or caretaker; “a child who is . . . absent from his or her legal residence without the consent of his or her parent, legal guardian or custodian”; “a child . . . who is without a place of shelter where supervision and care are available;” or “a person who is a former foster care youth under the age of twenty-one who was previously placed in the care and custody of [DSS] . . . and who was discharged from foster care . . . , [and] who has returned to foster care” (§ 371 [3] [a] – [d]). A dependent child is defined as “a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character” (§ 371 [7]). It is indisputable that the subject child is neither a destitute nor a dependent child. Social Services Law § 384-b is thus inapplicable to the child and may not be invoked by either the mother or DSS as a means to terminate the father’s parental rights. We therefore reverse the order and grant the father’s motion to dismiss the petition. We note, however, that our determination does not leave the mother without a remedy. She may seek to dispense with the father’s consent to adoption pursuant to Domestic Relations Law § 111 (2) (a) … . Matter of Anastasia I, 2014 NY Slip Op 04657, 4th Dept 6-20-14

 

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Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel’s Objection

The Fourth Department reversed defendant’s intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel’s objection.  The court explained the relevant law:

It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction … . When a court does so, it impairs a defendant’s “unquestionabl[e] . . . right to chart his [or her] own defense” …; it may “undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses” …; and it indisputably “impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory” … . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense “constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant’s right to have the State bear the entire burden of proof” … . The 3rd Department has even stated that a court “is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense” … .

Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, “the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury” … . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence …, that he or she “withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof” (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here…, “[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal”… . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14

 

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NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC’s Authority Not Demonstrated to Be Preempted by Federal Clean Water Act

The Fourth Department affirmed Supreme Court’s dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC’s authority to act was preempted by the Federal Clean Water Act (CWA):

Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York’s Yeager Brook, downstream from and caused by petitioner’s operations in Pennsylvania, in contravention of New York’s water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state’s laws and regulations to an out-of-state point source … .

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” … . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC’s exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[] as an obstacle to the full implementation of the CWA” … . Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process”… . “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” … . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14

 

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Termination Shocks One’s Sense of Fairness

The Fourth Department determined the termination of a city employee shocked one’s sense of fairness.  The court explained the relevant criteria:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally” … . “Where, as here, there is no grave moral turpitude’ and no grave injury to the agency involved or to the public weal,’ courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate’ ” … . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14

 

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Statement Identifying Shooter Made by a Witness Who Did Not See the Shooting Should Not Have Been Admitted Under the Present Sense Impression Exception to the Hearsay Rule

In a decision which affirmed the conviction and addressed several other important evidentiary issues, the Fourth Department noted that a statement identifying the defendant as the shooter made by a witness who did not see the shooting should not have been admitted under the present sense impression exception to the hearsay rule:

It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward . . . , and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” (id. at 382). Here, the witness did not see the shooting, and he confirmed defendant’s identity as the shooter only after questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014). Therefore, the witness’s statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim’s identification of defendant as the shooter … . People v Mulligan, 2014 NY Slip Op 04588, 4th Dept 6-20-14

 

Count Rendered Duplicitous by Trial Evidence Dismissed

The Fourth Department determined one count of an indictment had been rendered duplicitous by the trial evidence.  The indictment charged the theft of a bicycle.  However the trial evidence alleged the theft of two bicycles.  Therefore it is possible the jury was not unanimous in determining a specific bicycle had been stolen:

Because defendant’s right to be tried and convicted of only those crimes charged in the indictment is fundamental and nonwaivable” …, we review defendant’s contention despite his failure to preserve it. CPL 200.30 (1) provides that “[e]ach count of an indictment may charge one offense only.” Count five of the indictment charged defendant with stealing a bicycle and thus was not facially defective. At trial, however, the evidence established that two bicycles were stolen. Consequently, ” [r]eversal is required because the jury may have convicted defendant of an unindicted [petit larceny], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges’ . . . , as well as the danger that . . . different jurors convicted defendant based on different acts’ “… . People v Wade, 2014 NY Slip Op 04587, 4th Dept 6-20-14

 

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Internally Inconsistent Verdict Properly Set Aside

The Fourth Department determined Supreme Court properly set aside the verdict and ordered a new trial.  The jury had found that plaintiff’s negligence was not a substantial factor in causing her injuries but attributed 30% of the fault to the plaintiff:

…[W]e conclude that the verdict was internally inconsistent inasmuch as the jury found that plaintiff’s negligence was not a substantial factor in causing her injuries, but also attributed 30% of the fault to plaintiff … . Such an internal inconsistency in a verdict can be remedied “only . . . upon further consideration by the jury . . . or by a new trial” … . Here, of course, the jury had been discharged by the time of plaintiff’s motion, and thus it was too late to require the jury to reconsider its answers to the interrogatories on the verdict sheet.

Although plaintiff failed to object to the inconsistency in the verdict before the jury was discharged …, we conclude that, under the circumstances of this case, the court did not abuse its discretion in setting aside the verdict and ordering a new trial … . Allen v Lowczus, 2014 NY Slip Op 04288, 4th Dept 6-13-14

 

No Assets Left to Distribute—Disposition of a Painting Which Was Part of the Estate and Had Been Donated to a Museum Could Be Protected by the Attorney General (Charged with Protecting the Donor’s Wishes)–No Need to Issue Letters of Administration to Petitioner to Ensure Proper Use of the Painting

The Fourth Department determined letters of administration should not have been granted because all the assets of the estate had been distributed.  The letters were sought by a relative of the decedent who was concerned about the disposition of a valuable painting which was a charitable gift to a museum and could not be otherwise disposed of without a court order.  The court concluded that the disposition of the painting could be protected by the Attorney General:

…[W]e … conclude that [the Surrogate] erred in granting letters of administration c.t.a. to petitioner. It is undisputed that there are no assets of the estate that have not been administered … . As the Court of Appeals has written, “[t]here may be cases where letters of administration are necessary to be granted for other purposes than the recovery and distribution of assets[,]” including a “claim in respect to them which can be enforced” … . Nevertheless, we conclude that any claim with respect to the painting is to be “enforced by the [Attorney General], pursuant to his duty to effectuate the donor’s wishes” …, and we conclude that letters of administration c.t.a. are not “necessary” … .

We further conclude that limited letters of administration also are not “appropriate or necessary in respect of the affairs of the estate” (SCPA 702 [10]…). … [T]he Surrogate has previously prohibited the disposition of the painting without court approval, and there is no basis to conclude that the Attorney General is not properly fulfilling his duty to protect the decedent’s wishes with respect to the bequest to the Emerson Foundation … . Matter of Seward, 2014 NY Slip Op 04317, 4th Dept 6-13-14

 

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Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim

The Fourth Department, in affirming defendant’s conviction stemming from the death of a passenger after defendant’s vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant’s post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim’s injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:

“The general rule is stated in People v Pobliner (32 NY2d 356, 369…) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” … . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury’s factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14

 

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