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In Sex-Offense Trial, Discovery of the Victim’s Psychiatric Records Properly Denied and Cross-Examination About Psychiatric History Properly Prohibited

In a sexual-offense case, the Fourth Department affirmed the trial court’s refusal to allow the defense access to the victim’s psychiatric records and the court’s preculsion of cross-examination of the victim about her psychiatric history:

Mental health records are discoverable “where a defendant can demonstrate a good faith basis for believing that the records contain ‘data relevant and material to the determination of guilt or innocence,’ a decision which will rest ‘largely on the exercise of a sound discretion by the trial court’ ”… ..  Here, the court reviewed the records in camera before ruling that defendant was not entitled to any portion of that victim’s mental health counseling records, and the court did not abuse its discretion in reaching that conclusion.

We reject defendant’s further contention that the court abused its discretion by precluding cross-examination of the same victim regarding her psychiatric history.  “A defendant has a constitutional right to confront the witnesses against him through cross-examination.  With respect to the psychiatric condition of a witness, ‘the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition’ ”… .  Here, defendant was permitted to question that victim about any medications that she was presently taking and whether those medications impaired her memory or affected her testimony.  However, defendant failed to show that her psychiatric history “would bear upon her credibility or otherwise be relevant”  … .  People v Tirado, 486, 4th Dept 8-15-13

 

Conspiracy to Commit Tort Not Recognized in New York

In reversing Supreme Court’s grant of a default judgment, the Fourth Department noted that “New York does not recognize civil conspiracy to commit a tort as an independent cause of action.”  Piatt, PA…v Horsley…, 652, 4th Dept 7-19-13 

 

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Court in Contract Action Does Not Have Power to Vary 9% Interest Rate

In a case with counterclaims sounding in contract and Labor Law 191-c (1) (re: payment of earned sales commissions after a contract is terminated), the Fourth Department noted that the court does not have discretion to vary the statutory 9% interest rate in a contract action:

…[W]e conclude that the court lacked discretion to vary the statutorily-prescribed interest rate of 9% per annum (see CPLR 5004). As this Court has previously recognized, interest at the rate of 9% per annum is mandatory for “sum[s] awarded because of a breach of performance of a contract” (CPLR 5001 [a]…).  Polyfusion Electronics, Inc v Promark Eletronics, Inc…, 635.1, 4th Dept 7-19-13

 

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Agent Owed No Special Duty to Insured; No Duty to Advise Insured of Unpaid Premiums for Policy Assigned to Insured

The Fourth Department dismissed a negligence cause of action as time-barred and a contract cause of action because the defendant insurance agent owed no special duty to advise the plaintiff.  The plaintiff asked for and received an assignment of a workers’ compensation policy which had been held by nonparty API. Unbeknownst to the plaintiff at the time of the assignment, API owed unpaid premiums. In reversing Supreme Court’s denial of defendant’s motion for summary judgment, the Fourth Department determined the statute of limitations for the negligence cause of action started when the assignment of the workers’ compensation insurance policy to plaintiff was signed, not when plaintiff learned of the unpaid premiums, and the contract between plaintiff and the defendant insurance agent did not impose a special duty on the agent to advise the plaintiff about the unpaid premiums:

…[U]pon the execution of the assignment, which shifted liability for arrears in policy premiums from API to plaintiff, plaintiff’s damages were “sufficiently calculable to permit plaintiff to obtain prompt judicial redress of that injury” and plaintiff therefore had a “complete cause of action” …. The fact that plaintiff may not have learned of the amount owed … on the date on which NYSIF commenced the action against it [for the unpaid premiums], does not alter the analysis for statute of limitations purposes… .  * * *

“ ‘[A]n insurance agent’s duty to its customer is generally defined by the nature of the customer’s request for coverage’ ” ….  “ ‘Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide[ ] or direct a client to obtain additional coverage’ ” …. “To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy” ….  “A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage”… .

Here, plaintiff requested only that defendant procure the “best policy value” for plaintiff’s workers’ compensation coverage.  This is “the very kind of request that has been repeatedly held to be insufficient” to trigger a special duty requiring defendant to advise plaintiff concerning its insurance coverage… . Defendant procured workers’ compensation coverage for plaintiff through the assignment of API’s policy.  …[T]he assignment itself indicated that plaintiff would be responsible “for the payment of any premiums or additional premiums . . . which may become due on account of this policy up to the effective date of this assignment of interest agreement.”  Plaintiff has thus failed to state a breach of contract cause of action because there was no specific request for coverage that defendant failed to meet… .  5 Awnings Plus, Inc v Insurance Group, Inc, 678, 4th Dept 7-19-13

 

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40 Month Pre-Trial Delay Did Not Violate Due Process

In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:

In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(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’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).

Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13

 

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Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding

The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:

There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….

Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13

 

Jail Time Does Not Count Toward Subsequent Offense Until Previous Sentence Expired

Defendant was released on parole for a 2001 conviction.  While on parole he committed an offense and was jailed.  The Fourth Department determined that the time defendant was in jail must first be credited to the 2001 conviction.  Only after the 2001 sentence was completely served could any jail time be credited to the subsequent (2009) conviction:

Here, “[a]ny jail time served prior to the maximum expiration date of the [2001] sentence was properly credited toward that sentence until it expired on its own terms on [July 4, 2009] … .  “Thus, the [2009] sentence was properly credited only with jail time served after the expiration of the [2001] sentence” ….  In other words, “petitioner is not entitled to jail time credit against the [2009] sentence for the jail time that was credited against the [2001] sentence”… .  Matter of Grahm v Walsh, 811, 4th Dept 7-19-13

 

Defendant’s Wearing a Stun Belt During Trial Without Knowledge of Judge Did Not Constitute a “Mode of Proceedings” Error

The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error.  The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of the power of the court:

County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record … .

We respectfully disagree with our dissenting colleague that the improper use of the stun belt, i.e., at the direction of the Sheriff rather than the court, constitutes a mode of proceedings error.

Indeed, we note that a mode of proceedings error occurs “[w]here the procedure adopted by the court . . . is at a basic variance with the mandate of law” …, and that is not the case here.  We further note that in Buchanan the court deferred to the Sheriff, indeed delegated to the Sheriff, the determination whether defendant should wear the stun belt after the court acknowledged that defendant had done nothing to merit it (see Buchanan, 13 NY3d at 3), but the Court of Appeals did not find the error to be a mode of proceedings error.  Instead, the Court of Appeals simply ruled that the court failed to exercise its discretion… .  People v Schrock, 800, 4th Dept 7-19-13

 

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Improper Admission of Evidence of Similar (Pending) Criminal Charge under Molineux Required Reversal

The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:

“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13

 

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In SORA Proceeding, Child Pornography Properly Considered Under Factor 7 (“Relationship Between Offender and Victim”)

In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate:

With respect to …the 20 points assessed under risk factor 7, we note that the underlying conviction was a federal offense to which defendant pleaded guilty to receiving child pornography (18 USC 2252 [a] [2]).  Although the Court of Appeals has stated that “[i]t does not seem that factor 7 was written with possessors of child pornography in mind” …, the Court of Appeals determined that points were properly assessed under risk factor 7 in a case where the defendant was convicted of possessing child pornography….  Consequently, we conclude that the court here properly assessed points under risk factor 7. People v Noyes, 687, 4th Dept 7-19-13

 

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