Second Department – Page 386 – New York Appellate Digest

FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the manufacturer of a transformer base was entitled to summary judgment in this failure to warn action. Plaintiffs decedent fell asleep at the wheel, “drove up an embankment, struck a tree, rolled back down the embankment, and ran over a transformer base, which ruptured the gas tank of his vehicle, causing a fire. The decedent was unable to extricate himself and his two infant children from the vehicle, and they all died. “

The plaintiff alleged that when a pole is attached to the transformer base, the transformer base is designed so that it will break away from its concrete base when it is struck by a vehicle in order to minimize damage to the vehicle. The plaintiff alleged that when the pole was removed from the subject transformer base prior to the accident, the transformer base lost this “breakaway” feature. The plaintiff alleged that the manufacturer of the transformer base and all other entities in the supply chain had a duty to warn the DOT that the transformer base would lose its breakaway capability if it was not attached to a pole. * * *

To recover on a strict products liability cause of action based on inadequate warnings, a plaintiff must prove causation, i.e., that if adequate warnings had been provided, the product would not have been misused… . In other words, “[f]or there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must have been a substantial cause of the events which produced the injury” … . “Generally, it is for the trier of fact to determine the issue of proximate cause”… . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . …

The transformer base at issue in this case was located beyond the clear zone, which is defined as “an area without fixed objects that is adjacent to a highway and intended to provide safe passage and a recovery area for vehicles that veer off the roadway” … . [Defendants] demonstrated that, as per DOT policy, light poles located beyond the clear zone were not required to have breakaway transformer bases and that the loss of the breakaway feature would not have affected the DOT's decision to remove the light pole from the subject transformer base prior to the accident. Accordingly, [defendants] established, prima facie, that the failure to warn of the loss of the breakaway feature was not a substantial cause of the events which produced the injuries alleged here … . Reece v J.D. Posillico, Inc., 2018 NY Slip Op 06048, Second Dept 9-12-18

PRODUCTS LIABILITY (FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FAILURE TO WARN (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/WARN, FAILURE TO (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/HIGHWAYS AND ROADS (PRODUCTS LIABILITY, FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

September 12, 2018

Labor Law-Construction Law

IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether defendant 101 Norfolk was an owner within the meaning of Labor Law 240(1), 241(6) and 200. Plaintiff was injured by a falling object:

Contrary to the defendant 101 Norfolk's contention, it cannot be said, as a matter of law, that the defendant 101 Norfolk was not an “owner” for purposes of liability under the Labor Law. Rather, the evidence demonstrated that the defendant 101 Norfolk owned the property on which the plaintiff allegedly was injured and there was evidence that the plaintiff was injured in the course of a construction project encompassing both 103-105 Norfolk Street and the defendant 101 Norfolk's property, 101 Norfolk Street. Under the circumstances of this case, triable issues of fact exist as to whether the defendant 101 Norfolk contracted to have the injury-causing work performed, or had a sufficient nexus to that work, so as to support liability under Labor Law §§ 240 and 241 … . There are also triable issues of fact as to whether the defendant 101 Norfolk had a duty to provide the plaintiff with a safe place to work … . Powell v Norfolk Hudson, LLC, 2018 NY Slip Op 06047, Second Dept 9-12-18

LABOR LAW-CONSTRUCTION LAW (IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

September 12, 2018

Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT’S LEVEL THREE SEX OFFENDER ADJUDICATION SHOULD NOT HAVE BEEN VACATED, HIS SENTENCE ON A SEX OFFENSE WAS INTERRUPTED WHEN THE PAROLE BOARD DECLARED HIM DELINQUENT, WHEN DEFENDANT RETURNED TO STATE CUSTODY AFTER A SUBSEQUENT MURDER CONVICTION, HIS SEX OFFENSE SENTENCE RESUMED MAKING HIM SUBJECT TO SORA (SECOND DEPT).

The Second Department determined the defendant's level three sex offender adjudication should not have been vacated on the ground that defendant had completed his sex offense sentence in 1980, well before SORA went into effect in 1996. The Second Department held that defendant's sentence had been interrupted in 1979 when the Parole Board declared him delinquent. Defendant was subsequently prosecuted for murder and when defendant returned to state custody after his murder conviction in 1982, his sex offense sentence resumed:

Contrary to the defendant's contention, his rape and attempted robbery sentences were “automatically interrupted when the Parole Board declared him delinquent” on June 4, 1979 … . The defendant was not entitled to credit against those interrupted sentences for his time spent in local custody while his murder case was pending, as none of the provisions providing for such credit in Penal Law former § 70.40(3)(c) apply in this case (see Penal Law former § 70.40[3][c]…). The interruption of the defendant's rape and attempted robbery sentences that began on June 4, 1979, continued until the defendant returned “to an institution under the jurisdiction of the state department of correction,” which in this case occurred when the defendant was returned to the custody of DOCCS on January 19, 1982 (Penal Law former § 70.40[3][a]…). Upon his return to the custody of DOCCS in 1982, the defendant both commenced serving his murder sentence and resumed serving his interrupted rape and attempted robbery sentences (see Penal Law § 70.30[1]; Penal Law former § 70.40[3][a]…). For the purposes of SORA, the defendant was subject to all of these sentences during his incarceration after January 19, 1982 …. Thus, the defendant was serving his rape, attempted robbery, and murder sentences on SORA's effective date in 1996, and he is subject to SORA … . People v Johnson, 2018 NY Slip Op 06045, Second Dept 9-12-18

CRIMINAL LAW (SEX OFFENSE REGISTRATION ACT, DEFENDANT'S LEVEL THREE SEX OFFENDER ADJUDICATION SHOULD NOT HAVE BEEN VACATED, HIS SENTENCE ON A SEX OFFENSE WAS INTERRUPTED WHEN THE PAROLE BOARD DECLARED HIM DELINQUENT, WHEN DEFENDANT RETURNED TO STATE CUSTODY AFTER A SUBSEQUENT MURDER CONVICTION, HIS SEX OFFENSE SENTENCE RESUMED MAKING HIM SUBJECT TO SORA (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( DEFENDANT'S LEVEL THREE SEX OFFENDER ADJUDICATION SHOULD NOT HAVE BEEN VACATED, HIS SENTENCE ON A SEX OFFENSE WAS INTERRUPTED WHEN THE PAROLE BOARD DECLARED HIM DELINQUENT, WHEN DEFENDANT RETURNED TO STATE CUSTODY AFTER A SUBSEQUENT MURDER CONVICTION, HIS SEX OFFENSE SENTENCE RESUMED MAKING HIM SUBJECT TO SORA (SECOND DEPT))

September 12, 2018

Criminal Law

DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department determined Supreme Court abused its discretion in denying a late peremptory challenge to a juror and ordered a new trial:

… [C]ounsel for codefendant Rodger Freeman stated, “There was one we missed, number eight.” The court responded, “We have eight.” In response, counsel for codefendant Rodger Freeman stated, “We don't want eight.” The court replied, “You already—you told me what the perempts are and who the selected jurors are,” and denied the request to challenge prospective juror eight. * * *

Under CPL 270.15, “the decision to entertain a belated peremptory challenge is left to the discretion of the trial court, in recognition that the voir dire process can often be time-consuming and requires practical limitations” … . Here, the delay in challenging prospective juror eight was de minimis. There was no discernable interference or undue delay caused by the defense's momentary oversight and the voir dire of the second subgroup of prospective jurors was still to be conducted. Under these circumstances, the Supreme Court improperly denied the request to challenge prospective juror eight … . Since a trial court's improper denial of a peremptory challenge mandates reversal, we reverse the judgment and order a new trial … . People v Viera, 2018 NY Slip Op 06043, Second Dept 9-12-18

CRIMINAL LAW (DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT))/JURORS (CRIMINAL LAW, DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT))/PEREMPTORY CHALLENGE (JURORS, DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT)

September 12, 2018

Negligence

EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the owners of property abutting the sidewalk where plaintiff fell did not present sufficient evidence to warrant summary judgment in this slip and fall case. The defendant-owners (Millers) argued the defect was trivial:

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” … .

The Millers failed to establish their prima facie entitlement to judgment as a matter of law on the ground that the alleged defective condition was trivial as a matter of law … . In support of their motion, the Millers submitted conflicting evidence as to the dimensions of the alleged defective condition, including the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and measurements taken by the Millers' investigator. Further, “it is impossible to ascertain from the photographs submitted in support of the motion whether the alleged defective condition was trivial as a matter of law” … . Coriat v Miller, 2018 NY Slip Op 05998, Second Dept 9-12-18

NEGLIGENCE (EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

September 12, 2018

Negligence

PLAINTIFF INJURED WHEN, AFTER CONSUMING ALCOHOL, HE DOVE INTO A SHALLOW PART OF DEFENDANT’S POOL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant property owner's motion for summary judgment was properly granted in this swimming pool injury case:

After consuming alcohol, the plaintiff ran out of the defendant's house and dove headfirst into the defendants' pool, striking his forehead on the bottom of the pool. The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging that the defendants were negligent in, among other things, the ownership, operation, and maintenance of their pool. The defendants moved for summary judgment dismissing the complaint, and the plaintiff opposed the motion. The Supreme Court granted the defendants' motion and dismissed the complaint.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff's act of diving headfirst into the defendants' shallow pool was the sole proximate cause of his injuries … . In support of their motion, the defendants submitted, inter alia, the plaintiff's deposition transcript, in which he testified that he swam in the subject pool once or twice prior to the accident, and that he was aware of the depth of the pool … . Carroll v Montalvo, 2018 NY Slip Op 05997, Second Dept 9-12-18

NEGLIGENCE (PLAINTIFF INJURED WHEN, AFTER CONSUMING ALCOHOL, HE DOVE INTO AN SHALLOW PART OF DEFENDANT'S POOL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))/SWIMMING POOLS (NEGLIGENCE, (PLAINTIFF INJURED WHEN, AFTER CONSUMING ALCOHOL, HE DOVE INTO AN SHALLOW PART OF DEFENDANT'S POOL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT))

September 12, 2018

Criminal Law, Evidence

MOTION TO VACATE DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT).

The Second Department reversed the vacation of defendant's conviction by the motion court, finding that the evidence which defendant alleged had not been turned over to the defense was not Brady material:

The defendant was charged with murder in the second degree, among other crimes, in connection with the shooting death of Tracey Thomas on October 22, 1993. Thomas was shot and killed as he sat in his car outside a game room operated by the defendant, who was known as “Pike.”

The evidence at trial, which was conducted in 1998, included the testimony of two eyewitnesses who identified the defendant as the shooter. One eyewitness to the shooting, Marilyn Connor, testified that she heard a gunshot and saw a spark coming from the defendant, who was standing in front of Thomas. Connor stated that she had seen the defendant “[o]nce or twice” before. The other eyewitness, Shawn Newton, testified that the defendant exited the game room, approached Thomas's car, and shot Thomas in the chest. Newton stated that he had known the defendant “all [his] life.” * * *

The nondisclosure of the DOCCS record reflecting Newton's apparent suicide attempt did not constitute a Brady violation, inasmuch as the information contained in that record was not favorable to the defense. As set forth in the DOCCS record, Newton, who was observed in the process of tying a bed sheet around a radiator pipe, reported that he was “stressed and [did] not want to go to court in fear of [the] safety of himself and family,” and that he “fears [the defendant].” The DOCCS record further indicated that Newton was “[a]ssured that this [would] be noted and that there should be no contact between him and enemy as well as enemy's family.” Thus, the DOCCS record attributed the apparent suicide attempt to Newton's fear of the defendant and was therefore not favorable to the defense. …

Furthermore, that the prosecutor had obtained a material witness order to secure Connor's testimony did not constitute Brady material because that information was not exculpatory … . To the contrary, the record indicates that Connor's absence was due to her fear of testifying against the defendant. …

We next turn to the nondisclosure of the Damiani orders, which are orders of the Supreme Court, Kings County, pursuant to which custody of an inmate, with the inmate's consent, is delivered to the police department to be interviewed by the District Attorney's Office ,,, [C]ontrary to the Supreme Court's determination, the orders did not satisfy the materiality standard. People v Spruill, 2018 NY Slip Op 06041, Second Dept 9-12-18

CRIMINAL LAW (BRADY MATERIAL, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, BRADY MATERIAL, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/BRADY MATERIAL (CRIMINAL LAW, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))

September 12, 2018

Criminal Law, Judges

JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT).

he Second Department ordered a new trial because the judge conducted excessive questioning of trial witnesses:

… [T]here must be a new trial, before a different justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Although defense counsel did not object to most instances of judicial interference, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]…). “While neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process,' the court's discretion in this area is not unfettered” … . The principle restraining the court's discretion is that a trial judge's “function is to protect the record, not to make it” … . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge's participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of multiple witnesses, elicited step-by-step details about how the defendant was identified by witnesses as a suspect, and generally created the impression that it was an advocate for the People. Under the circumstances, the court's improper interference deprived the defendant of a fair trial, and a new trial before a different justice is warranted … . People v Sookdeo, 2018 NY Slip Op 06040, Second Dept 9-12-18

CRIMINAL LAW (JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT))

September 12, 2018

Animal Law

NEGLIGENCE, AS OPPOSED TO STRICT LIABILITY, THEORY DID NOT APPLY TO INJURY FROM A HORSE WHICH WAS STARTLED WHEN THREE HORSES ESCAPED FROM A PADDOCK AND GALLOPED TOWARD THE BARN WHERE PLAINTIFF WAS GROOMING THE HORSE WHICH INJURED HER (SECOND DEPT).

The Second Department determined strict liability, not negligence, criteria applied to injury from a horse. Because the defendant demonstrated the escaped horses were domesticated animals and plaintiff did not allege the horses had vicious propensities, the complaint was properly dismissed:

The plaintiff alleges that she was injured while grooming a stallion in the barn at Hidden Brook Farm (hereinafter the farm), when three horses, who had escaped from their paddocks, galloped unaccompanied toward the barn. The stallion was startled and suddenly side-stepped, pinning the plaintiff against the wall. * * *

Contrary to the plaintiff's contention, this case does not fall within the limited exception set forth in Hastings v Suave (21 NY3d 122, 125-126), regarding a farm animal that strays from the place where it is kept onto a public road or other property … . In carving out this exception, the Court of Appeals recognized “the unique peril that arises from allowing farm animals to wander off a farm unsupervised and unconfined” and the “common expectation among people in general that a 1,500-pound cow, a 400-pound pig or an unruly goat will not be permitted to wander freely into traffic or onto a neighbor's yard, mangling people and property alike” … . Here, the plaintiff was in the barn grooming a horse, and the presence of horses was not unexpected. Brinkman v Marshall Field VI, 2018 NY Slip Op 05996, Second Dept 9-12-18

ANIMAL LAW (NEGLIGENCE, AS OPPOSED TO STRICT LIABILITY, THEORY DID NOT APPLY TO INJURY FROM A HORSE WHICH WAS STARTLED WHEN THREE HORSES ESCAPED FROM A PADDOCK AND GALLOPED TOWARD THE BARN WHERE PLAINTIFF WAS GROOMING THE HORSE WHICH INJURED HER (SECOND DEPT))/HORSES (NEGLIGENCE, AS OPPOSED TO STRICT LIABILITY, THEORY DID NOT APPLY TO INJURY FROM A HORSE WHICH WAS STARTLED WHEN THREE HORSES ESCAPED FROM A PADDOCK AND GALLOPED TOWARD THE BARN WHERE PLAINTIFF WAS GROOMING THE HORSE WHICH INJURED HER (SECOND DEPT))

September 12, 2018

Criminal Law, Evidence

ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT).

The Second Department determined that, although the DNA evidence presented by a criminalist was in part testimonial, it was properly admitted:

At trial, the Supreme Court admitted DNA profiles and reports, as well as the testimony of an expert in DNA analysis, pertaining to the five victims and the defendant. The expert, Craig O'Connor, testified that he had a Ph.D. in genetics and laboratory sciences, and he was a criminalist level III at the Office of the Chief Medical Examiner. O'Connor testified that he was not the original criminalist on all of the individual cases. The other two analysts who worked on the cases “resigned in previous years to pursue other endeavors.” With regard to the case files that he took over from the analysts who resigned, O'Connor testified that he became the custodian of the case files and, in doing so, he “was required to review them all and look at all the paperwork and the reports and everything.” Moreover, O'Connor testified that he would “take all of the results and do the analysis and interpretations,” and he “review[ed] all the facts and all the data contained in all of the files.” When the prosecutor asked O'Connor if he had “review[ed] th[e] data and draw[n] [his] own independent conclusions,” O'Connor responded, “Yes, I reviewed the results that were obtained and also the reports, yes.” * * *

Here, the DNA evidence is, at least in part, testimonial … . However, O'Connor's testimony regarding his review and analysis of all of the case files indicated that he independently analyzed the raw data, as opposed to functioning as ” a conduit for the conclusions of others'” … . Moreover, unlike in other cases, the record here demonstrates that, to the extent that O'Connor was not the original criminalist assigned to any of the individual cases, the original criminalists had resigned and, thus, were unavailable … . Accordingly, the Supreme Court properly admitted the DNA profiles and reports and O'Connor's testimony. People v Pascall, 2018 NY Slip Op 06037, Second Dept 9-12-18

CRIMINAL LAW (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, EVIDENCE, ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/TESTIMONIAL HEARSAY (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))/CONFRONTATION, RIGHT TO (ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT'S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT))

September 12, 2018

Tag Archive for: Second Department

FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

IN THIS LABOR LAW 240(1), 241(6) AND 200 ACTION, THERE WAS A QUESTION OF FACT WHETHER DEFENDANT WAS AN OWNER OF THE PROPERTY WHERE PLAINTIFF WAS INJURED BY A FALLING OBJECT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

DENIAL OF A LATE PEREMPTORY CHALLENGE TO A JUROR WAS AN ABUSE OF DISCRETION, NEW TRIAL ORDERED (SECOND DEPT).

EVIDENCE NOT SUFFICIENT TO DEMONSTRATE SIDEWALK DEFECT WAS TRIVIAL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

PLAINTIFF INJURED WHEN, AFTER CONSUMING ALCOHOL, HE DOVE INTO A SHALLOW PART OF DEFENDANT’S POOL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).

MOTION TO VACATE DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT).

JUDGE CONDUCTED EXCESSIVE QUESTIONING OF WITNESSES, NEW TRIAL WITH A DIFFERENT JUDGE ORDERED (SECOND DEPT).

NEGLIGENCE, AS OPPOSED TO STRICT LIABILITY, THEORY DID NOT APPLY TO INJURY FROM A HORSE WHICH WAS STARTLED WHEN THREE HORSES ESCAPED FROM A PADDOCK AND GALLOPED TOWARD THE BARN WHERE PLAINTIFF WAS GROOMING THE HORSE WHICH INJURED HER (SECOND DEPT).

ALTHOUGH THE DNA EVIDENCE PRESENTED BY A CRIMINALIST WAS IN PART TESTIMONIAL, THE DEFENDANT’S RIGHT TO CONFRONTATION WAS NOT VIOLATED AND THE EVIDENCE WAS PROPERLY ADMITTED (SECOND DEPT).

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