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Criteria for Non-Negligent Explanation for Striking Vehicle from Behind Described​​​​

In finding the defendant failed to demonstrate a non-negligent reason for his striking the plaintiff’s vehicle from behind (in defendant’s motion for summary judgment), the Fourth Department explained:

A rear-end collision with a vehicle that is stopped or is in the process of stopping ‘creates a prima facie case of liability with respect to the [driver] of the rearmost vehicle, thereby requiring that [driver] to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” …. We agree with plaintiff that defendant failed to establish as a matter of law that the accident was the result of unanticipated brake failure, a nonnegligent explanation alleged by defendant in support of his cross motion… “Where, as here, .. . defendant[] intend[s] ‘to lay the blame for the accident on brake failure, it [is] incumbent upon [him] to show that the problem with the brakes was unanticipated, and that [he] had exercised reasonable care to keep them in good working order’ ” … .  Lyons v Zeman, CA 12-02074, 479, 4th Dept, 5-3-13

TRAFFIC ACCIDENTS

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“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-Paint Injury Case Okay/But Not Okay for Non-Party Educators

In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers about the plaintiff’s injuries.  However, the Fourth Department did not agree with Supreme Court’s grant of the same motion with respect to non-party educators (two justices dissented on that issue):

In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers. The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an adverse party’s treating physician. Defendant made no showing that the discovery devices available under the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13

 

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Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to Lead Paint or Be Precluded from Introducing Such Evidence

In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants moved to preclude proof of plaintiff’s injuries in the absence of such medical reports.  Supreme Court granted the defendant’s motion and the Fourth Department affirmed.  In addition, the Fourth Department noted that Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because plaintiff was not “relying” on the statute.  Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13

 

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Statements Made by Defendant During First 15 Hours of a 60-Hour Interrogation Not Coerced

The Fourth Department determined the trial court properly ruled that the defendant’s statements during the first 15 hours of a 60-hour interrogation need not be suppressed as the product of coercion.  People v Collins, KA 09-00932, 1367, 4th Dept, 5-3-13

SUPPRESS, SUPPRESSION

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Suppression Should Have Been Granted—People Failed to Meet Their Burden of Going Forward at Suppression Hearing​

The Fourth Department ruled that suppression of tangible evidence and statements should have been granted because the People failed to meet their burden of going forward at the suppression hearing by demonstrating the legality of the police conduct.  The Fourth Department further determined that the error was not harmless with respect to all but one of the charges:

We agree with defendant, however, that County Court erred in denying that part of his omnibus motion seeking suppression of the physical evidence that was seized from his vehicle and the statements he made to New York State Police Investigators, inasmuch as the People failed to meet their “burden of going forward to show the legality of the police conduct in the first instance” … . * * *
Because the People failed to present evidence at the suppression hearing establishing the legality of the police conduct, defendant’s purported consent to the search of his vehicle was involuntary and all evidence seized from the vehicle as a result of that consent should have been suppressed … .Additionally, defendant’s statements to the police must be suppressed as fruit of the poisonous tree.. .  People v Purdy, KA 12-00534, 488, 4th Dept, 5-3-13

 

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Criteria for Specific Performance of Plea Agreement Explained

The Fourth Department noted the criteria for a defendant’s right to specific performance of a plea agreement (criteria not met in this case):
“ ‘The remedy of specific performance in the context of plea agreements applies where a defendant has been placed in a no-return position in reliance on the plea agreement . . . , such that specific performance is warranted as a matter of essential fairness’ ” … Inasmuch as neither the prosecution nor the defense had taken any action on the second plea agreement …defendant was not placed in a “ ‘no-return position’ ” in reliance on the second plea agreement and is thus not entitled to specific performance of that agreement… . People v Weather, KA 11-01247, 482, 4th Dept, 5-3-13

 

Robbery Guilty Plea Rendered Insufficient By Statement Weapon Used Was “Fake”

The Fourth Department reversed defendant’s robbery convictions (by guilty pleas) because, in the plea allocution, defendant indicated the weapon involved was “fake.” People v Burroughs, KA 10-00663, 462, 4th Dept, 5-3-13

 

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Insufficient Foundation for Cross Examination About Witness’ Mental Health

In upholding the limits the trial court placed upon the cross-examination of a witness concerning the witness’ mental health history, the Fourth Department wrote:

A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness’s “capacity to perceive and recall events was impaired by a psychiatric condition” …or that “such evidence would bear upon [the witness’s] credibility or otherwise be relevant” … . Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue …. Defense counsel’s statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative…  People v Rivera, KA 08-01758, 203, 4th Dept, 4-26-13

 

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Questions About Whether Trial Judge Properly Handled Jury Notes Sent Out During Deliberations Required Reconstruction Hearing

In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30.  Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents).  The Fourth Department explained the “jury-note” requirements and procedures as follows:

In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .

In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … .  People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13

 

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Attorney General’s Medicaid Fraud Control Unit Was Authorized Under Both State and Federal Law to Prosecute a Case Stemming from the Provision of Federal Medicare Services

In a full-fledged opinion by Justice Fahey, the Fourth Department determined that the Attorney General’s Medicaid Fraud Control Unit was authorized, pursuant to Executive Law 63, to prosecute the defendants, who provided federal Medicare services exclusively but received payment from both Medicare and Medicaid.  In addition, the Fourth Department determined that the federal statute which created the state Medicaid Fraud Control Units, and which allows the state Medicaid Fraud Control Units to prosecute federal Medicare violations only where the prosecution as a whole is “primarily related to the state [Medicaid] plan,” did not preempt Executive Law 63 as it was applied in this case.  People v Miran, KA 12-01189, 319, 4th Dept, 4-26-13

 

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