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Presentation of Evidence of an Uncharged Offense Without Seeking a Ruling on Its Admissibility in Advance Deprived Defendant of a Fair Trial

The Third Department determined the presentation of evidence of an uncharged sexual offense deprived defendant of a fair trial. Without seeking a ruling in advance, and without presenting an argument why the evidence was relevant to anything other than criminal propensity, the prosecutor presented evidence alleging defendant’s sexual misconduct involving a child other than the victim in the charged offense. In ordering a new trial, the Third Department explained:

It is beyond dispute that evidence of a defendant’s uncharged crimes or prior bad acts cannot be admitted solely for the purpose of proving criminal propensity … . Rather, “evidence 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, provide[s] necessary background or complete[s] a witness’s narrative” …, and the trial court further determines that the probative value of such evidence outweighs its prejudicial effect … . Here, the record does not reflect that the People sought any sort of ruling from County Court regarding the admissibility of defendant’s uncharged crime/prior bad act before eliciting such testimony from the victim’s mother on their case-in-chief …, nor does the record reveal that the People made any attempt to “identify some issue, other than mere criminal propensity, to which the evidence [was] relevant”… . People v Brown, 105062, 3rd Dept 2-20-14

 

Family Court Improperly Delegated Its Responsibility to Set the Terms of Father’s Supervised Visitation

The Third Department determined Family Court improperly relinquished its authority to dictate the terms of father’s supervised visitation to the petitioner (grandmother):

…[W]e find merit to the father’s contention that Family Court erred in granting visitation subject to conditions of supervision set at the sole discretion of petitioner. Family Court is required to determine the issue of visitation in accord with the best interests of the children and fashion a schedule that permits a noncustodial parent to have frequent and regular access … . In doing so, the court may not delegate its authority to make such decisions to a party … . Here, in light of the father’s apparent history of domestic violence and failure to submit to a substance abuse screen, the court did not err in requiring that the father be subject to supervised visitation.However, inasmuch as the court granted complete authority to petitioner to determine the father’s access to the children and under what conditions that access may occur, the court impermissibly abdicated its responsibility to ensure that the father has regular and meaningful visitation with the children and, therefore, the matter must be remitted for a hearing and redetermination in this regard… . Matter of Aida B v Alfredo C, 515713, 3rd Dept 2-20-14

 

Review of Stipulated Custody Arrangement Warranted by Change of Circumstances/Seriousness of Mother’s Alcohol-Related Behavior Increased

The Third Department reversed Supreme Court finding that a change in mother’s alcohol-related behavior warranted a review of the custody arrangement set out in a stipulation:

When parties enter into stipulations resolving custody issues, those stipulations will not be modified unless there is a sufficient change in circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child[]” … . Here, although the father admittedly was aware of the mother’s issues with alcohol at the time that he agreed to share custody with her, evidence of the mother’s continuing and escalating problems in this regard, coupled with her subsequent alcohol-related arrests and the indicated child protective services reports, “was sufficient to constitute a change in circumstances requiring a review of the existing custody arrangement in order to determine whether [such arrangement] continued to be in the child’s best interests” … . Accordingly, Supreme Court should have undertaken a best interests analysis. Matter of Kiernan v Kiernan, 515662, 3rd Dept 2-20-14

 

“Presumption of Compensability” Applied

The decedent was working, driving a truck, when his truck struck a toll booth. There was evidence the decedent had a stroke, either just before or after the accident. In affirming the validity of the claim, the Third Department explained the application of the “presumption of compensability:”

…[W]e reject the employer’s assertion that claimant failed to meet her burden of establishing a casually related death. “Pursuant to Workers’ Compensation Law § 21 (1), a presumption of compensability exists where, as here, an unwitnessed or unexplained injury occurs during the course of the affected worker’s employment”… . As relevant here, the statutory presumption is applicable where either a stroke occurs during work … or where the onset of stroke symptoms occurs during work … . If the presumption is applicable, a claimant is not required “‘to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ [the] injury and [the] employment” … . * * *Inasmuch as decedent clearly had an accident while working, and it was either the stroke that caused the accident or the accident that caused the stroke, the Board properly applied the presumption that decedent’s injury was causally related to his employment (see Workers’ Compensation Law § 21 [1]…). Matter of Stevenson v Yellow Roadway Corporation…, 516077, 3rd Dept 2-20-14

 

No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

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Court May Impliedly Vacate Note of Issue by Directing Discovery

Although the trial court did not impliedly vacate the note of issue in this case, the Third Department explained the criteria for such a vacation:

A court may be deemed to have vacated a note of issue sua sponte, even without explicitly stating so, if the court’s directives with respect to discovery “clearly evince its intent to do so and have the same practical effect”… . McDowell & Walder Inc v Micha…, 516375, 3rd Dept 1-23-14

 

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What To Do If the District Attorney Does Not Wish to Prosecute But the Judge Does

The Third Department determined a trial judge exceeded his powers when he ordered the prosecutor to produce witnesses at a suppression hearing.  The prosecutor did not wish to proceed with the case. The Third Department determined that the prosecutor could not be ordered to produce witnesses at the suppression hearing (the prosecutor’s tactic for dismissing the case) because the CPL did not require the prosecution to present such witnesses. The Third Department went on to suggest that, in this situation, a motion for “dismissal in the interest of justice” might be used, or the prosecutor could simply not present any inculpatory proof at trial:

A district attorney has “unfettered discretion to determine whether to prosecute a particular suspect” … .  Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” …; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney … .  * * *  Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation generally will not create difficulty in obtaining swift dismissal where a defendant also desires dismissal, since various procedures are available for disposing of a pending criminal case.

For example, a motion to dismiss in the interest of justice can be made (see CPL 170.40; see also CPL 210.40).  Such motion can be initiated by a defendant, a district attorney, or even by the court before which the case is pending * * *. Although there are statutory criteria that must also be addressed as part of a motion to dismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria include a catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in which the criteria are weighed and applied … .  * * *

Another, but more time consuming, option is similar to the one ostensibly embarked upon by petitioner.   Consistent with the CPL, a district attorney can stipulate at a suppression hearing to the granting of a defendant’s motion (see CPL 710.60 [2] [b]).   Further, the failure at an eventual trial to produce any inculpatory proof would result in dismissal and, since reprosecution would then be precluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolle prosequi would not be implicated … . Matter of Soares v Carter…, 517191, 3rd Dept 1-23-14

 

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Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”

… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … .  This fundamental “right to testify is ‘personal’ and . . . can be waived only by the defendant,” and any such waiver must be knowingly, voluntarily and intelligently made … .  To be sure, the “trial court does not have a general obligation to sua sponte ascertain if the defendant’s failure to testify was a voluntary and intelligent waiver of his [or her] right” … .  However, “in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected” … .

We believe that such colloquy was critically necessary here.  The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion'” … .  But here the deputy’s actions in foisting the religious tract upon defendant constituted an effort by law enforcement to “interfere[] with the free and unhampered decision of [defendant] to testify” … .  Moreover, looking at “factors beyond the government’s control to determine whether [defendant’s] decision not to testify resulted from the government’s conduct,” defendant allegedly knew “chapter and verse” the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14

 

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Defendant Could Properly Subpoena Documents Which May Support a Motion to Dismiss the Indictment in the Interest of Justice/There Was Evidence of a Policy Not to Prosecute Native Americans for Tax Law Violations Relating to Cigarettes

In a case alleging (criminal) cigarette-related tax law violations, the Third Department affirmed Supreme Court’s denial of the state police’s and the tax department’s motions to quash subpoenas concerning a forbearance enforcement policy.  The defendant, who is Native American, alleged the tax department and the state police made a policy-decision not to prosecute Native Americans for tax law violations related to cigarettes manufactured by Native Americans.  The subpoenas were deemed relevant to a possible “interest of justice” dismissal of the indictment:

To be sure, the policy of the Department and the issues surrounding the Division’s actual enforcement of the Tax Law with respect to Native American manufactured cigarettes may very well be found insufficient to justify dismissal of the indictment in the interest of justice.  Yet, we simply cannot say that the testimony sought on those issues “is utterly irrelevant” to the question of whether defendant’s prosecution here would be unjust … .   Accordingly, Supreme Court properly denied the motions to quash the subpoenas. People v Laughing, NYS Dept of Taxation and Finance, 516567, 3rd Dept 1-16-14

 

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Disclosure of Appraisal Documents Not Entitled to Conditional Immunity Even If Prepared Solely for Litigation/No Other Way for Claimants to Obtain Relevant Evidence

In a matter related to the taking of property for the construction of a highway, the Third Department determined the claimants were entitled to an appraisal done by the defendants, even if the documents were prepared solely in anticipation of litigation.  The claimants demonstrated that they had no other avenue to obtain the evidence relevant to their claims:

Even if the documents were prepared solely in anticipation of litigation, claimants demonstrated that the conditional immunity should not prevent disclosure because they have a substantial need and an inability to otherwise obtain the documents.  … The Court of Claims … acknowledged that the subpoenaed documents were relevant to the claim for property damage, to prove the condition of the property immediately before the construction.  Thus, even if the documents were drafted solely for litigation purposes, the appraisal and supporting documents would be subject to disclosure based on claimants’ substantial need and their lack of another source for that proof (see CPLR 3101 [d] [2]). Lerner v State of New York, 516774, 3rd Dept 1-9-14

 

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