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MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED.

The Third Department determined the motion to dismiss the demand for punitive damages was properly denied. The action stemmed from an physical confrontation between plaintiff and defendant, an off-duty police officer:

“Punitive damages may be awarded in an action to recover damages for assault” … , but “are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant’s behavior cannot be said to be merely volitional” … . Defendant’s conduct, in other words, must reflect “a high degree of moral culpability, . . . [be] so flagrant as to transcend mere carelessness, or . . . constitute[] willful or wanton negligence or recklessness” … . * * *

… [The] proof permits the finding that defendant pursued plaintiff and angrily confronted him over his perceived deficiencies as a driver, then physically subdued plaintiff and falsely accused him of starting the confrontation to ensure that he would be detained by police. If true, this aggressive and dishonest behavior by an off-duty state trooper is precisely the type of “morally culpable” behavior that defendant and others should be deterred from engaging in … . George v Albert, 2016 NY Slip Op 05613, 3rd Dept 7-21-16

NEGLIGENCE (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/INTENTIONAL TORT (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/ASSAULT (CIVIL ACTION, MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)/PUNITIVE DAMAGES (MOTION TO DISMISS PUNITIVE DAMAGES CLAIM PROPERLY DENIED)

AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID.

The Third Department determined the authorization purporting to allow the opening of petitioner’s mail was invalid:

Petitioner argues that his mail was opened in violation of established mail watch procedures. Specifically, petitioner contends that the “express written authorization” that permitted facility personnel to open, inspect or read his outgoing correspondence (7 NYCRR 720.3 [3] [e]) failed to “set forth the specific facts forming the basis for the action” (7 NYCRR 720.3 [e] [1]) and, as such, the subject authorization was invalid. Upon reviewing the document at issue, we agree. Accordingly, the determination of guilt must be annulled … . Matter of Ramos v Annucci, 2016 NY Slip Op 05601, 3rd Dept 7-21-16

DISCIPLINARY HEARINGS (INMATES) (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/INMATES (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/MAIL (INMATES, AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)

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TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.

The Third Department, in affirming defendant’s conviction, determined the testimony of the DNA expert (Pasqualino) did not violate defendant’s right of confrontation. Although the expert relied on data collected by non-testifying witnesses, the conclusions drawn from the data were entirely her own. In addition, the Third Department determined the concededly illegal stop of the defendant did not require suppression of his statement because the statement was sufficiently attentuated from the stop. An officer illegally stopped the defendant to tell him the police wanted to speak to him. The defendant  then drove to the station where he was read his Miranda rights. With respect to the DNA evidence, the court wrote:

Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant’s DNA profile to the victim’s rape kit, which conclusions were contained in the reports that she authored… . * * *

There is no evidence in the record that any lab technician or analyst who participated in the preliminary processing and testing of this DNA evidence engaged in any data editing, analysis, comparisons or interpretations of the evidence or rendered any opinions regarding whether the data collected from the rape kit matched defendant’s DNA profile; likewise, there is no proof that Pasqualino relied upon any such opinions or conclusions drawn by others … . Further, the technicians’ compilation of objective data was not accusatory and did not, without Pasqualino’s expert analysis and testimony, link defendant to these crimes … . Under these circumstances, defendant’s right of confrontation was not violated when Pasqualino relied upon and made reference to data collected by nontestifying lab technicians … . People v Stahl, 2016 NY Slip Op 05597, 3rd Dept 7-21-16

 

CRIMINAL LAW (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/EVIDENCE (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/CONFRONTATION, RIGHT TO (CRIMINAL LAW, TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/DNA (TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION)/STREET STOPS (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/SUPPRESSION (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)/ATTENUATION (CRIMINAL LAW, (ILLEGAL STOP DID NOT REQUIRE SUPPRESSION, STATEMENT SUFFICIENTLY ATTENUATED FROM THE STOP)

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DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW.

FREEDOM OF INFORMATION LAW (FOIL), TAX LAW.

The Third Department determined Supreme Court properly withheld from disclosure both tax returns and documents which reflect information included in tax returns:

“The policy behind the [tax] secrecy provisions is twofold: to protect personal privacy interests in the information on a return, which may reveal information concerning a person’s activities, associations and beliefs, and to encourage voluntary compliance with the tax laws by preventing use of return information to harm the reporting taxpayer” … . As relevant here, the statute prohibits the disclosure of “any particulars” by any person who “is permitted to inspect” a return, receives “any information contained in any [return]” or who “in any manner may acquire knowledge of the contents of a [return]” (Tax Law § 211 [8] [a]). By its terms, therefore, the confidentially required by the statute necessarily extends to any document that reflects information included in a return. If we were to construe the statute to only protect the secrecy of the return, the purpose of the statute would not be served … , and we find, in particular, that Tax Law § 211 (8) (a) prohibits the Department from releasing an agreement made with another taxpayer (see Tax Law §§ 171 [18]; 210-A [11]). … Contrary to petitioner’s arguments, where, as here, a document is exempt from disclosure pursuant to state statute, it may not be subjected to redaction … . Matter of Moody’s Corp. & Subsidiaries v New York State Dept. of Taxation & Fin., 2016 NY Slip Op 05612, 3rd Dept 7-21-16

FREEDOM OF INFORMATION LAW (FOIL) (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)/TAX LAW (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)/TAX RETURNS  (DOCUMENTS WHICH REFLECT INFORMATION IN TAX RETURNS ARE EXEMPT FROM DISCLOSURE UNDER THE TAX LAW)

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COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE.

The Third Department reversed the damages verdict in this medical malpractice action because of an erroneous comparative negligence jury instruction. Plaintiff, while at defendant hospital, has a seizure after he was given hot coffee. Plaintiff was burned when the coffee spilled on him. Although the comparative negligence instruction was appropriate with regard to whether plaintiff should have been given coffee, it was not appropriate with regard to the treatment for the burns:

A comparative negligence instruction is appropriate when there is evidence that a plaintiff may share responsibility for harm that was inflicted as a result of a defendant’s medical malpractice … . However, no comparative negligence instruction should be given when a plaintiff’s alleged negligence preceded the alleged medical malpractice and is not otherwise alleged to have contributed to the harm resulting from the malpractice. A plaintiff’s prior conduct “is not relevant, since the defendant’s liability extends only to that portion of [the plaintiff’s] injuries attributable to the defendant’s malpractice” … . Here, although there was evidence from which the jury could have found that plaintiff shared responsibility for the initial coffee spill, defendant made no claim at trial that plaintiff had any such shared responsibility for defendant’s subsequent deviations from the accepted standard of care in treating plaintiff’s injuries, nor was there any evidence adduced at trial from which the jury could have found that plaintiff shared such responsibility … . Vallone v Saratoga Hosp., 2016 NY Slip Op 05526, 3rd Dept 7-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/COMPARATIVE NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/JURY INSTRUCTION (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)

COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE.

The Third Department, finding Supreme Court should have allowed disclosure of some of the requested documents, noted that a court cannot justify withholding documents on grounds not raised in opposition to disclosure:

A court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought … . Accordingly, the court should not have relied on a justification for withholding documents … that was not raised by respondent. Matter of Rose v Albany County Dist. Attorney’s Off., 2016 NY Slip Op 05536, 3rd Dept 7-14-16

FREEDOM OF INFORMATION LAW (FOIL) (COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE)

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HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED.

The Third Department reversed Family Court, finding that the hearsay evidence of the child’s statement father had touched her were not corroborated and therefore could not form the basis of a modification of custody:

Evidence of the abuse came in the form of the child’s out-of-court statements and, inasmuch as “the evidentiary standards established in Family Ct Act article 10” were applicable under these circumstances, the question became whether her statements were “sufficiently corroborated” so as to be admissible … . The mother testified that the child stated that the father had touched her, then acted out an incident of sexual abuse. The child also told her therapist that the father had touched her, but the therapist testified that the child declined to give details about the incident and did not opine that the child’s behavior was indicative of sexual assault or that there was reason to believe that her statements were truthful. The therapist expressly declined to offer such an opinion in her testimony, in fact, making clear that she would not say whether the child’s claims were “true or untrue.” The child herself did not testify, and Family Court rejected the belated requests of counsel for the father and the child for a Lincoln hearing.

The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” … , but mere “repetition of an accusation” will not suffice … . The proof here did not rise above repetition to include additional evidence such as expert testimony that the child’s behavior or her statements were consistent with abuse, physical evidence of abuse, or the sworn testimony or in camera statements of the child herself … . Matter of Leighann W. v Thomas X., 2016 NY Slip Op 05522, 3rd Dept 7-14-16

 

FAMILY LAW (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/HEARSAY (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CUSTODY (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CORROBORATION (FAMILY LAW, (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)

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SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.

 

The Third Department, reversing defendant’s conviction, determined the police did not have justification for searching defendant’s duffel bag and the evidence seized from the bag should have been suppressed. Defendant was arrested in his residence on an outstanding warrant. The defendant was handcuffed when the duffel bag was retrieved by a police officer (Gillis) from behind the couch:

To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . Two interests underlie the exigency requirement: “‘the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment'” … .

The People failed to establish the existence of exigent circumstances justifying the search of defendant’s duffel bag. Gillis testified that the bag was still against the wall when defendant was handcuffed and personally searched pursuant to the outstanding warrant, and Gillis had to physically retrieve the bag from behind the couch in order to search it. In addition, the officers had searched the residence prior to arresting defendant and did not find any evidence of drug activity or paraphernalia, the owner told Gillis that there was nothing illegal in the apartment and defendant denied that there was contraband in the bag when questioned about its contents. Thus, the search of the subject bag was improper and its contents — namely, crack cocaine, cell phones and train tickets — should have been suppressed … . People v Ortiz, 2016 NY Slip Op 05521, 3rd Dept 7-14-16

 

CRIMINAL LAW (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SUPPRESSION (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SEARCH AND SEIZURE  (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/CLOSED CONTAINERS (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)

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EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED.

The Third Department, reversing defendant’s conviction, determined evidence of a prior sexual assault, factually similar to the charged offenses, should not have been admitted in the People’s direct case. The victim of the prior assault testified in detail about it. The Third Department held that the prejudicial effect of the prior assault outweighed its probative value, irrespective of whether the evidence fit any Molineux exception to the rule excluding evidence of prior crimes:

… “[E]vidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness’s narrative and, further, the trial court determines that the probative value of such evidence outweighs is prejudicial effect” … . Here, even assuming, without deciding, that the previous victim’s testimony at trial and the corresponding photographs fall within one or more of the aforementioned Molineux exceptions, we agree with defendant that the prejudicial effect of such evidence far outweighs its probative value and, therefore, the People should not have been permitted to introduce such evidence on their case-in-chief. People v Ward, 2016 NY Slip Op 05518, 3rd Dept 7-14-16

CRIMINAL LAW (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/PRIOR CRIMES (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED/MOLINEUX (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE.

The Third Department reversed defendant’s murder conviction, finding defense counsel ineffective. Counsel’s errors included: (1) failure to object the prosecutor’s mischaracterization of DNA evidence found on defendant’s clothes (this failure alone warranted reversal); (2) failure to object to irrelevant evidence about the victim’s demeanor, education, behavior as a mother, etc. (evidence from as far back as 1998), and an inept summation which misstated the burden and standard of proof and acknowledged the possibility defendant committed the crime:

[The DNA expert] testified … that there were not enough alleles or DNA data to say conclusively that the victim’s DNA was present.

Nevertheless, during summation, the prosecutor repeatedly mischaracterized [the expert’s] testimony and the DNA results by stating multiple times that the victim’s DNA was on the sweatshirt. Specifically, the prosecutor initially stated that “on that sweatshirt is [defendant’s] wife’s DNA.” Later, when discussing [the expert’s] DNA report, the prosecutor incorrectly stated that the report “shows that [the victim’s] DNA was on that area where the bloody spot is.” Even if this last statement could be viewed as asking the jury to make an inference from the evidence at trial, the prosecutor again misstated the testimony by saying, “We have the forensic people who say[] . . . [the victim’s] DNA is on that sweatshirt, to some degree.” Defense counsel made no objections to such characterization of the testimony or DNA analysis. People v Ramsaran, 2016 NY Slip Op 05520, 3rd Dept 7-14-16

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/DNA EVIDENCE (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)

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