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Portable Breath Test Device (PBT) Results Should Not Have Been Admitted, Driving While Intoxicated Conviction Reversed

The Second Department reversed defendant’s driving while intoxicated (DWI) conviction because the results of the portable breath test device (PBT) were allowed in evidence in the People’s direct case:

Generally, the result of a PBT, such as an Alco-sensor, “is not admissible to establish intoxication, as its reliability for this purpose is not generally accepted in the scientific community” … . Contrary to the trial court’s determination, isolated remarks during defense counsel’s opening statement did not open the door for the People to introduce incriminating testimony about the PBT result as part of their case-in-chief, particularly in the absence of appropriate limiting instructions … . We note that the opening remarks at issue, regarding the officer discarding the PBT “cap,” were at least partly offered in support of the defense theory that the defendant was not aware that he was the subject of a lawful arrest on the night in question, which theory was offered to undermine the charges of assault in the second degree and resisting arrest. Further, we find that the People adequately responded to this remark by eliciting the officer’s testimony that he disposed of the plastic cap because it was unsanitary, and this was standard procedure. Nonetheless, the People elicited testimony that, according to the PBT, the defendant’s BAC was .128%, significantly higher than the legal limit of .08%, before defense counsel had an opportunity to raise this issue during cross-examination … . Under these circumstances, it cannot be said that the defendant opened the door for the People to adduce evidence of an insufficiently reliable PBT result in order to prove the defendant’s intoxication … .

Thereafter, the trial court did not provide the jury with any limiting instructions regarding the PBT result …, but instead directed the jury to consider the PBT result as direct proof of the defendant’s intoxication. The court told the jury that the PBT was a “generally accepted instrument in determining blood alcohol content,” and that no scientific expert was necessary. This was error … . Under the circumstances, including the lack of evidence of admissible field sobriety tests, we find that this error was not harmless beyond a reasonable doubt. People v Krut, 2015 NY Slip Op 08439, 2nd Dept 11-18-15

 

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Evidence of a Murder Which Was Not Connected to the Defendant Properly Admitted to Explain Relevant Events—Probative Value Outweighed Prejudicial Effect

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that evidence of a murder which was not connected to the defendant was properly admitted in defendant’s witness-tampering prosecution. Defendant was awaiting trial on a murder charge. Three teenaged girls and a man named Bobby Gibson were eyewitnesses. Defendant allegedly developed relationships with the three girls and paid them money. The girls recanted their identifications of the defendant. Then, on the day before the trial, Bobby Gibson was shot and killed outside the apartment of one of the girls. The girls then went to the police and told the police why they had recanted. The girls were placed in protective custody.  A man who was apparently not connected with the defendant, confessed to killing Bobby Gibson. The Court of Appeals determined evidence of Bobby Gibson’s death was properly admitted in the witness-tampering trial to explain the girls’ actions. The trial judge gave the jury a limiting instruction emphasizing that there was no evidence connecting the defendant to the Gibson murder:

Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” … . “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact” … . However, “[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court’s discretion if its probative value is substantially outweighed by the potential for prejudice” … .

Here, the evidence of Gibson’s murder was relevant for several reasons. It showed the state of mind of the three girls and provided an explanation as to why they abandoned their recantations and told police about their deal with defendant. It also explained why the girls were placed in protective custody prior to the trial. Additionally, it allowed the jury to have all of the relevant facts before it to decide whether to credit defense counsel’s arguments or the three girls’ testimony concerning the charges against defendant.

While possible prejudice could arise from the testimony in that the jury might link defendant to the Gibson murder, that prejudice was minimized by the court’s limiting instruction. The court, in its final charge, made clear that defendant had not been charged with causing the death of Gibson. In addition, the prosecutor had stated plainly in his opening statement and [*2]summation that there was no evidence that defendant was involved. Thus, we conclude that the court’s decision to admit the evidence of Gibson’s murder was not an abuse of discretion. People v Harris, 2015 NY Slip Op 07528, CtApp 10-15-15

 

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Improper Evidence of Uncharged Offenses, a Police Officer’s Vouching for the Reliability and Credibility of the People’s Central Witness, and the Court’s Failure to Give Limiting Instructions to the Jurors after Sustaining Objections to Improper Testimony Deprived Defendant of a Fair Trial

The Third Department reversed defendant’s conviction based upon several errors including the improper presentation of evidence of uncharged crimes attributed to the defendant and a police officer’s vouching for the reliability and credibility of the confidential informant (CI), upon whose testimony the People’s case depended. The jury heard evidence of defendant’s participation in a drug offense identical to that for which he was on trial. Even though objection to the testimony was sustained and the testimony struck, no limiting instructions were given to the jury. Evidence of defendant’s sitting at a table on which were large amounts of heroin and crack cocaine was also improperly presented. Objection to that testimony was overruled. With respect to the police officer’s vouching for the credibility and reliability of the CI, the defense objection to that testimony was sustained, but no curative instructions were given to the jury:

At trial … the CI testified that defendant was not only present during [a] controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant’s prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI’s testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial … . Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table “with large amounts of heroin and crack cocaine in front of him.” Although no reference to “heroin” was included in the People’s Molineux proffer, or otherwise previously disclosed, the court overruled defendant’s objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI’s narrative … . Significantly, the court did not attempt to cure the prejudice arising from the CI’s improper testimony by issuing an instruction either at the time of defendant’s objection or during the jury charge … . * * *

Further prejudice resulted from the People’s redirect examination of [officer] Gillis, who stated that the CI was “very reliable and very trustworthy.” After County Court overruled defendant’s objection, and characterized the testimony as “opinion,” Gillis elaborated that the CI had “never given [him a] reason to not believe anything that [the CI] is telling [him].” Allowing Gillis to vouch for the CI’s credibility was clearly improper … . The effect was compounded by the People’s summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability … . While we recognize that County Court sustained defendant’s objection, no curative instruction was issued, and we remain concerned that the prosecutor’s remark amplified the effect of Gillis’ improper vouching … . People v Nicholas, 2015 NY Slip Op 06269, 3rd Dept 7-23-15

 

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Defense Counsel’s Failure to Investigate the Victim’s Medical Condition (Which Would Have Allowed More Effective Cross-Examination of the People’s Expert and the Victim), Failure to Object to Testimony Which May Have Been More Prejudicial than Probative (and which Clearly Required a Jury Instruction Limiting Its Use), and Failure to Object to Improper Comments Made by the Prosecutor, Deprived Defendant of Effective Assistance of Counsel

In a sexual abuse case based entirely on the victim’s testimony (alleging anal intercourse), the Third Department determined defense counsel’s failure to investigate the nature of the victim’s bleeding disorder (which could have called into question the prosecution’s expert’s opinion that victims of sexual abuse, like the victim here, often show no signs of injury), the failure to object to the testimony of the defendant’s spouse alleging his preference for anal intercourse (the prejudicial effect may well have outweighed the probative value—at the very least a limiting instruction should have been requested as to the jury’s limited use of such evidence), and the failure to object to improper comments made by the prosecutor in summation (appealing to jurors’ sympathy, exhorting the jurors to fight for the victim), required reversal and a new trial:

Had counsel sought to inform himself about the victim’s VWD [bleeding disorder] diagnosis, he likely would have become aware of medical experts such as Howard Snyder, a board-certified doctor of emergency medicine who submitted an affidavit in support of defendant’s postconviction motion. Snyder averred that “[t]he presence of VWD [in the victim] would have made the presence of bruising or bleeding during forceful, non-consensual anal intercourse more likely than in [a] patient without VWD.”Undoubtedly, expert testimony similar to Snyder’s would have done much to increase the significance of the SANE [sexual assault nurse examiner] report’s lack of physical findings and would have provided a powerful basis for cross-examination to counter the damaging effects of the SANE’s opinion testimony.

Counsel’s failings were magnified by the fact that the People’s only direct evidence of defendant’s guilt was the victim’s testimony, making counsel’s efforts to undermine her credibility of paramount importance. Indeed, there were no other witnesses to the alleged sexual assaults and no DNA evidence was recovered. In similar situations, the Second Circuit, applying New York law, has repeatedly held that “when a defendant is accused of sexually abusing a child and the evidence is such that the case will turn on accepting one party’s word over the other’s, the need for defense counsel to, at a minimum, consult with an expert to become educated about the vagaries of abuse indicia is critical. The importance of consultation and pre-trial investigation is heightened where, as here, the physical evidence is less than conclusive and open to interpretation” (Eze v Senkowski, 321 F3d 110, 129 [2d Cir 2003] …). Thus, the record establishes that, without any justification, counsel prejudiced defendant by “s[itting] on his hands, confident that his client would be acquitted” rather than “consult[ing with] and be[ing] prepared to call an expert” … , whose testimony then would have been “available [to] assist[] the jury in its determination” … .

Counsel’s conduct further fell below our standard of meaningful representation because he failed to object to, and request a limiting instruction to guide the jury in assessing, the testimony of defendant’s former spouse regarding defendant’s sexual preferences. Counsel sat mute while the witness testified that, upon reading the victim’s statement to police, it struck her that it contained details “only someone who had been intimate with [defendant] would know,” including what she then proceeded to describe as defendant’s preference for anal intercourse during their consensual sexual relationship [. We do not think that counsel’s failure to object to this testimony can be excused on the ground that such an objection had “little or no chance of success” … . “Not all relevant evidence is admissible as of right. . . . Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side” … .

In our view, a legitimate question exists as to whether the prejudicial effect of the former spouse’s testimony regarding defendant’s sexual preferences substantially outweighed its probative value, especially considering that she testified that she and defendant had not been sexually active for several years prior to the alleged assaults on the victim. Supreme Court should have had the opportunity to consider this question and make an appropriate ruling in the exercise of its discretion. The court would have done so, but for counsel’s inexplicable failure to object. In the event that the court had determined this testimony to be admissible, counsel could then have requested a limiting instruction, as the lack thereof would “permit[] the jurors to perhaps consider [the former spouse’s statements] as proof of defendant’s propensity” to engage in the sexual acts charged here … . * * *

Finally, we note with disapproval certain remarks made by the prosecutor during summation, to which counsel did not object. The prosecutor improperly attempted to appeal to the jury’s sympathy by asking the jurors to consider how they would have felt if they “were in [the victim’s] shoes” … . The prosecutor also exhorted the jurors to advocate for the victim during deliberations by using the phrase “you fight for her” … . While counsel’s failure to object to these remarks does not, in and of itself, amount to ineffective assistance of counsel, it further illustrates counsel’s representation, the cumulative effect of which deprived defendant of meaningful representation, especially “where, as here, the determination of guilt . . . hinged on sharp issues of credibility” … . People v Cassala, 2015 NY Slip Op 06176, 3rd Dept 7-16-15

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Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the “prejudicial effect versus probative value” Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence.  The charged offense was assault by administering alcohol to the victim (defendant’s wife) without her consent.  The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:

To be sure, “[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake” … and, further, may be “relevant to provide background information concerning the context and history of [the] defendant’s relationship with the victim” … . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions … and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court’s implicit finding in this regard …, the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury … . The absence of such instructions clearly impacted the jury’s deliberations — as evidenced by the jury’s inquiry as to whether the coercion charge “encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14

 

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Uncharged Crime Evidence (911 Call) Admissible to Explain Aggressive Actions of Police

In a full-fledged opinion by Judge Abdus-Salaam, over a dissent, the Court of Appeals determined it was not an abuse of discretion to allow in evidence a 911 call, which could have been interpreted to have implicated defendant in an uncharged robbery, to explain the aggressive actions of the police when they stopped and seized the defendant, who was convicted of a weapon-possession charge:

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” … .  Yet this case-specific, discretionary exercise remains within the sound province of the trial court …, which is in the best position to evaluate the evidence … .  Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable.  Rather, it must constitute an abuse of discretion as a matter of law … .

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion.  The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant … .  Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop.  But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself.  The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car.  By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge ….  The People had the burden of proving every element of the resisting arrest charge …, and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant … .  Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked.  There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run.  The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony.  Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” … .  People v Morris, 147, CtApp 10-15-13

 

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Objection to Molineux Evidence Not Preserved for Appeal

The Fourth Department noted that failure to request a limiting instruction with respect to Molineux evidence and the failure to object to the court’s failure to provide a limiting instruction rendered the issue unpreserved for appeal.  The Molineux evidence in this sexual abuse case was evidence of the physical (not sexual) abuse of the victim’s brother:

On appeal from a judgment convicting him following a jury trial of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that he is entitled to a new trial because Supreme Court neglected to give limiting instructions with respect to Molineux evidence establishing that he had subjected the victim’s brother to physical abuse (see People v Molineux, 168 NY 264). As defendant correctly concedes, that contention is unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court’s failure to provide one (see CPL 470.05 [2]…).    Because the Molineux evidence in question did not relate to prior sexual abuse, and because it appears from the record that defense counsel knew of the court’s failure to give limiting instructions and yet remained silent when the error could have been corrected, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . People v Willians, 392, 4th Dept, 6-14-13

 

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