New York Law Review

Tag: adverse inference

  • People v. Riley, 21 N.Y.3d 945 (2013): Sanctions for Failure to Notify Defendant of Returned Property

    People v. Riley, 21 N.Y.3d 945 (2013)

    A sanction for the unnoticed return of stolen property is only required if the district attorney fails to demonstrate an absence of prejudice to the defendant; the choice of sanction rests within the trial court’s discretion.

    Summary

    Defendant Riley was convicted of stealing copper pipes. Prior to trial, the pipes were returned to their owner without the statutorily required notice to Riley. Riley requested an adverse inference instruction, arguing prejudice due to the inability to examine the pipes and assess their value independently. The trial court denied the request. The Court of Appeals held that a sanction is only required if the People fail to show the absence of prejudice, and the choice of appropriate action is within the trial court’s discretion. The court found no abuse of discretion here because the People offered defense counsel an opportunity to inspect the pipes, retained a representative sample, and provided photographs. The People’s appeal was dismissed because the modification by the Appellate Division was not “on the law alone”.

    Facts

    Defendant Louis Riley was accused of stealing copper pipes. A few months before the trial commenced, the copper pipes were returned to their rightful owner. The return occurred without the notice to the defendant required by Penal Law § 450.10. The prosecution had, six weeks prior to the return of the pipes, invited defense counsel to arrange a time to examine them.

    Procedural History

    The defendant was convicted at trial. He appealed, arguing that the trial court erred in denying his request for an adverse inference instruction as a sanction for the unnoticed return of the stolen pipes. The Appellate Division modified the trial court’s decision. The People appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order regarding Riley’s appeal and dismissed the People’s appeal.

    Issue(s)

    Whether the trial court abused its discretion by determining that the defendant did not suffer prejudice and declining to impose a sanction for the unnoticed return of stolen property.

    Holding

    No, because the People demonstrated an absence of prejudice to the defendant and the choice of sanction is committed to the sound discretion of the trial court.

    Court’s Reasoning

    The Court of Appeals relied on Penal Law § 450.10 (10), which states that a sanction for the return of stolen property without the requisite notice is required only when the district attorney does not demonstrate an absence of prejudice. The Court also cited People v. Kelly, 62 NY2d 516, 521 (1984), emphasizing that “the choice of ‘appropriate’ action is committed to the sound discretion of the trial court.”

    The Court reasoned that the People had advised defense counsel to arrange a mutually convenient time to examine the copper pipes about six weeks before they were returned, but defense counsel did not follow up. The police retained a representative sample, which was admitted into evidence without objection, and defense counsel was provided with nearly 200 photographs of the copper pipes and the buildings. Given these circumstances, the trial court’s determination that the defendant did not suffer prejudice was not an abuse of discretion.

    The court distinguished its holding from prior precedent regarding the appellate review of unpreserved errors, holding that, because the Appellate Division modification was not “on the law alone”, the People’s appeal must be dismissed pursuant to CPL 450.90 [2] [a].

  • People v. Savinon, 100 N.Y.2d 192 (2003): Adverse Inference Instruction for Uncalled Witnesses

    People v. Savinon, 100 N.Y.2d 192 (2003)

    A “missing witness” instruction, allowing the jury to draw an unfavorable inference from a party’s failure to call a witness, is appropriate where the witness’s knowledge is material, they are expected to give noncumulative testimony favorable to the party, and they are available to that party.

    Summary

    Savinon was convicted of rape. At trial, the prosecution requested a missing witness instruction because Savinon did not call Camacho, a friend and former employee who was present during the alleged rape. Savinon argued Camacho was unavailable because he feared deportation. The trial court granted the instruction, and the jury convicted Savinon. The New York Court of Appeals affirmed, holding that the trial court did not abuse its discretion in granting the missing witness instruction because Savinon failed to demonstrate that Camacho was truly unavailable and that Camacho’s relationship with Savinon suggested he would be a favorable witness.

    Facts

    The complainant and Savinon had a relationship prior to the alleged rape. On the night in question, Savinon and Luis “Flaco” Camacho took the complainant to a club. The complainant testified that Savinon left her to dance with another woman. Feeling ill, the complainant asked to leave, but Savinon refused. Camacho then escorted her outside. Later, Savinon, Camacho, and the complainant drove off together. Savinon began making sexual advances toward the complainant, which she resisted. Savinon then raped her in the back seat of the car. Savinon demanded that Camacho also rape the complainant, but Camacho refused. Camacho later took the complainant home. At trial, Savinon testified that the sexual encounter was consensual, with Camacho nearby. Neither side called Camacho as a witness.

    Procedural History

    Savinon was arrested and indicted for rape and related crimes. At trial, the People requested an adverse inference instruction because Savinon failed to call Camacho as a witness. The trial court granted the request. The jury found Savinon guilty. The Appellate Division affirmed, and a judge of the Court of Appeals granted Savinon leave to appeal. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court improperly granted the People’s request for an adverse inference instruction against Savinon for failing to call Camacho as a witness.

    Holding

    No, because Camacho’s testimony would have been material, Camacho was likely to be a favorable witness for Savinon, and Savinon failed to establish that Camacho was unavailable.

    Court’s Reasoning

    The Court of Appeals explained that the “missing witness” instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events. The court cited People v. Gonzalez, stating that the instruction rests on “the commonsense notion that ‘the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’” The court then outlined the three preconditions for the missing witness instruction, established in Gonzalez: (1) the witness’s knowledge must be material to the trial; (2) the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought; and (3) the witness must be available to that party.

    The court found that Camacho’s testimony was material and noncumulative. The court then addressed the availability element, noting that a litigant should not be penalized for failing to call a witness who is unavailable. The court stated, “Though a genuine inability to locate a witness will foreclose a missing witness instruction, a witness may be readily accessible and even in the courtroom but still be unavailable within the meaning of the rule.” In this case, the court determined that Savinon failed to demonstrate that Camacho was truly unavailable. The court reasoned that Savinon only communicated Camacho’s disinclination to testify through defense counsel, and counsel failed to subpoena Camacho. As such, the court found that the trial court did not abuse its discretion in determining that Camacho could have been produced if Savinon earnestly wanted him.

    Finally, the court addressed the favorability element, noting that control “does not concern physical availability but rather the relationship between the witness and the parties.” The court stated that where there is “a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor,” the control element is satisfied. Here, the court found that Savinon and Camacho had been friends and business associates. Therefore, the trial court did not abuse its discretion in determining that the favorability element was met.

  • People v. Haupt, 71 N.Y.2d 929 (1988): Consequences of Lost Rosario Material

    71 N.Y.2d 929 (1988)

    When the prosecution loses or destroys Rosario material (prior statements of a witness), the trial court must impose an appropriate sanction, focusing primarily on eliminating prejudice to the defendant.

    Summary

    Defendant was convicted of robbery. A key issue was the loss of police notes containing a description of the robber provided by a witness. The defense sought to preclude the witness’s testimony, arguing a Rosario violation. The trial court denied preclusion but instructed the jury that they could draw an adverse inference against the prosecution. The Court of Appeals affirmed, holding that an adverse inference charge was an appropriate sanction, given the circumstances, for the loss of the Rosario material and that it sufficiently mitigated any potential prejudice to the defendant. The court emphasized that the focus should be on eliminating prejudice to the defendant when Rosario material is lost or destroyed.

    Facts

    Efraim Gonzalez, a cashier, was threatened during an armed robbery at a cafe.
    Gonzalez immediately reported the crime to his manager, Nelson Aleman, who had briefly seen the defendant earlier.
    Aleman chased the defendant into the subway and onto a train, where the defendant was arrested by a transit police officer.
    At the pretrial Wade hearing, Gonzalez mentioned giving a description of the robber to police officers (Reycraft and Mosely) who responded to the cafe immediately after the robbery.
    Officer Reycraft testified that Officer Mosely wrote down Gonzalez’s description, possibly in his memo book or on a “scratch 61” sheet, and immediately broadcast the description over the radio.
    Officer Mosely was unavailable at trial, and his notes and any follow-up report could not be located despite intensive investigation.
    The defendant was given the Sprint tape of the radio transmission containing the description.

    Procedural History

    After the jury was sworn, the defense moved to preclude Gonzalez from testifying because the written record of his statement to the investigating police had not been provided.
    The trial court held a hearing and denied the motion to preclude Gonzalez’s testimony.
    However, the court instructed the jury that they could draw an adverse inference against the prosecution for failing to produce Officer Mosely’s notes.
    Defendant appealed the Rosario ruling, and the Appellate Division affirmed.
    The case then went to the Court of Appeals.

    Issue(s)

    Whether the trial court abused its discretion by delivering an adverse inference charge rather than precluding the witness’s testimony as a sanction for the prosecution’s failure to produce Rosario material (Officer Mosely’s notes).

    Holding

    No, because the adverse inference charge was an appropriate sanction to mitigate any potential prejudice to the defendant arising from the loss of the Rosario material, given that a description of the defendant had been contemporaneously broadcast over the police radio and disclosed to the defendant.

    Court’s Reasoning

    The Court of Appeals outlined three categories of Rosario violations: (1) delayed disclosure, (2) complete failure to disclose material in the People’s possession, and (3) loss or destruction of evidence.
    Regarding lost or destroyed evidence, the court stated that the People have an obligation to preserve evidence until a request for disclosure is made, citing People v. Kelly, 62 N.Y.2d 516, 520 (1984).
    The court emphasized that it is not a sufficient response to a demand for production to say that the material has been lost or destroyed.
    If the People fail to preserve evidence and the defendant is prejudiced, the court must impose an appropriate sanction. “The determination of what is appropriate is committed to the trial court’s sound discretion, and while the degree of prosecutorial fault may be considered, the court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant” (quoting People v. Kelly, 62 N.Y.2d at 520-521).
    In this case, the trial court’s decision to deny preclusion and instead deliver an adverse inference charge was deemed appropriate.
    The court reasoned that the prosecution was apparently unaware of the Rosario material until trial, and the risk of prejudice to the defendant was remote, because the defendant had a tape of the radio transmission containing the description of the defendant.
    Under the circumstances, any risk of prejudice was overcome by the adverse inference instruction.

  • Patricia A. v. Philip De G., 49 N.Y.2d 162 (1980): Admissibility of Hospital Records and Inferences from Silence in Paternity Cases

    Patricia A. v. Philip De G., 49 N.Y.2d 162 (1980)

    In paternity proceedings, hospital records containing diagnoses and observations made by medical professionals are admissible as prima facie evidence, and the court may draw the strongest possible inference against a party who fails to testify when faced with opposing evidence.

    Summary

    This case concerns the admissibility of hospital records and the implications of a defendant’s silence in paternity suits. The New York Court of Appeals held that uncertified hospital records, specifically doctors’ diagnoses and nurses’ entries, are admissible as prima facie evidence of the facts stated therein, provided they are records kept in the regular course of business. Furthermore, the court clarified that while a respondent in a paternity suit cannot be compelled to testify, their silence allows the court to draw the strongest inference against them that the opposing evidence permits. This case underscores the importance of medical records as corroborating evidence and clarifies the evidentiary weight of a party’s decision not to testify.

    Facts

    Patricia A. claimed that Philip De G. was the father of her child, born on January 9, 1978. She testified that she and Philip had sexual relations from April 1977 until March 1978, and that she had no relations with anyone else during that time. Patricia stated that the child was born prematurely and weighed 4 pounds 13 ounces. She also testified that Philip visited her after the delivery, brought her home, gave gifts for the baby, and referred to the child as “his baby.” To corroborate the premature birth, Patricia submitted the hospital record of her confinement at delivery.

    Procedural History

    The Family Court adjudicated Philip De G. as the father and ordered him to pay support. The Appellate Division reversed, finding the evidence of paternity insufficient as a matter of law. Patricia A. appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether uncertified hospital records, specifically diagnoses and observations by medical staff, are admissible as evidence to corroborate the mother’s testimony of premature birth in a paternity proceeding.
    2. Whether an adverse inference can be drawn against a respondent in a paternity proceeding for failing to testify.

    Holding

    1. Yes, because diagnoses of doctors and entries of nurses recorded in hospital records are admissible as prima facie evidence of the facts stated therein under CPLR 4518(c).
    2. Yes, because in civil proceedings, including paternity suits, the trier of fact may draw the strongest inference against a party that the opposing evidence in the record permits if that party chooses not to testify.

    Court’s Reasoning

    The Court of Appeals reasoned that the hospital records, containing the attending doctor’s diagnosis and the nurses’ entries, constituted prima facie evidence of the child’s premature birth. The court cited CPLR 4518(c) and prior case law, including Williams v. Alexander, 309 N.Y. 283 (1955), to support the admissibility of such records as business records. Because the hospital record indicated that the child was born at 35 weeks gestation, this corroborated the mother’s testimony that the baby was premature and placed the conception in early May, during a period when she testified she had sexual relations exclusively with the respondent.

    Regarding the respondent’s failure to testify, the court acknowledged the conflicting precedents among the Appellate Divisions but aligned itself with the majority view. The court emphasized that paternity proceedings are civil in nature and that, in civil cases, an adverse inference can be drawn when a party fails to testify. The court cited Marine Midland Bank v. Russo Produce Co., 50 N.Y.2d 31 (1980), and noted that the respondent’s silence does not allow speculation or require an adverse inference. However, it does permit the trier of fact to draw the strongest inference against him that the opposing evidence in the record allows. The court explicitly stated that “[t]he failure of respondent to testify does not permit the trier of the fact to speculate about what his testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him that the opposing evidence in the record permits”.

    The court noted that the petitioner must still meet the “clear and convincing” evidence standard to establish paternity. However, because there was evidence in the record that could satisfy this standard, the Appellate Division’s order was reversed and the matter was remitted for factual determination consistent with the Court of Appeals’ opinion.

  • Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980): Permissible Inference from Invoking Fifth Amendment in Civil Cases

    Marine Midland Bank v. John E. Russo Produce Co., Inc., 50 N.Y.2d 31 (1980)

    In a civil case, the jury may draw an adverse inference from a party’s invocation of the Fifth Amendment privilege against self-incrimination.

    Summary

    Marine Midland Bank sued John E. Russo Produce Co. and Canestraro Produce, Inc., along with their officers, alleging a check-kiting scheme. During the trial, John and Rita Russo invoked their Fifth Amendment rights when questioned about the checks. The trial court instructed the jury that no adverse inference could be drawn from this. The jury found the defendants not liable, but also fixed the bank’s loss at $309,800. The Appellate Division reversed in part, finding the Fifth Amendment charge erroneous. The Court of Appeals held that in civil cases, an adverse inference can be drawn from a party’s invocation of the Fifth Amendment, and that the error was not harmless, warranting a new trial against Canestraro.

    Facts

    John E. Russo Produce Co., Inc. (Produce) and Canestraro Produce, Inc. (Canestraro) were closely related produce businesses. John and Rita Russo owned Produce; their sons, Joseph and Andrew Russo, controlled Canestraro. They shared office space and storage, and Canestraro was a supplier to Produce. Rita was Canestraro’s part-time bookkeeper and a signatory on its bank account with Marine Midland Bank. Produce allegedly engaged in check kiting, covering overdrafts at Marine Midland with checks from Citibank, where the Citibank account was then covered by checks drawn on Marine Midland. Citibank eventually dishonored Produce’s checks, leaving Marine Midland with a $309,800 deficit.

    Procedural History

    Marine Midland sued the defendants for fraud and conversion. During the trial, John and Rita Russo invoked their Fifth Amendment privilege against self-incrimination. The trial court instructed the jury that no adverse inference could be drawn from the invocation. The jury found no liability but determined the bank’s loss at $309,800. The Appellate Division reversed the judgment in favor of John, Rita, and Produce and ordered a new trial, holding the Fifth Amendment charge was erroneous, but affirmed as to Canestraro and Joseph. Marine Midland appealed the affirmance as to Canestraro.

    Issue(s)

    1. Whether, in a civil case, an adverse inference may be drawn from a party’s invocation of the Fifth Amendment privilege against self-incrimination.

    2. Whether the trial court’s erroneous charge regarding the Fifth Amendment was harmless error with respect to Canestraro.

    Holding

    1. Yes, because the policy of the Fifth Amendment, designed as a safeguard in criminal prosecutions, should not be extended to civil cases where the parties are on equal footing.

    2. No, because Canestraro’s exculpation might have been based on the jury’s conclusion that Rita was unaware of the deficit balances, a determination they might not have reached had there been a correct charge on the Fifth Amendment.

    Court’s Reasoning

    The Court of Appeals reasoned that the Fifth Amendment privilege, designed to protect individuals from state oppression in criminal investigations, should not shield them in civil cases where parties are on equal footing. The court likened the situation to a party’s failure to produce a material witness under their control, which allows the jury to assess the strength of the opposing party’s evidence. Therefore, the trial court’s instruction that no adverse inference could be drawn was erroneous.

    Regarding Canestraro, the court held that the erroneous charge was not harmless. The jury might have concluded that Rita Russo, Canestraro’s bookkeeper, was unaware of the deficit balances in the accounts, which would have exculpated Canestraro. A correct charge on the Fifth Amendment might have led the jury to a different conclusion. The court emphasized that “an error is only deemed harmless when there is no view of the evidence under which appellant could have prevailed.”

    The court also addressed the imputation of knowledge from agent (Rita) to principal (Canestraro). While knowledge is generally imputed, this is not the case when the agent has an interest adverse to the principal. The court found that whether Rita’s interests were adverse to Canestraro was a factual issue for the jury. The court noted Canestraro’s corporate liability could also arise from an unjust enrichment theory. “A principal that accepts the benefits of its agent’s misdeeds is estopped to deny knowledge of the facts of which the agent was aware.”

    Finally, the court affirmed the Appellate Division’s ruling regarding Joseph Russo’s individual liability. Corporate officers are not liable for fraud unless they personally participate in the misrepresentation or have actual knowledge of it. The jury found that Joseph lacked such knowledge, and this finding was supported by the evidence. The court noted, “Since the theory that Joseph actually knew of the misrepresentation was necessarily encompassed by the case as presented to the first jury…the answers in his favor must be deemed a finding that he had no such knowledge.” The court also held that any error related to the Fifth Amendment instruction regarding John and Rita would not have affected the determination of Joseph’s knowledge.

  • People v. Schneider, 36 N.Y.2d 708 (1975): Prosecution Cannot Call Witness Solely to Force Invocation of Privilege

    36 N.Y.2d 708 (1975)

    A prosecutor engages in misconduct by calling a witness who they know will invoke their Fifth Amendment privilege against self-incrimination, if the sole purpose is to create a negative inference against the defendant.

    Summary

    Alvin Schneider, a police officer, was convicted of statutory rape. A key element of the prosecution’s case involved the testimony of Maggio, a fellow officer who had previously corroborated Schneider’s version of events but later recanted and indicated he would assert his Fifth Amendment privilege. The prosecution called Maggio as a witness, knowing he would invoke his privilege. The Court of Appeals reversed Schneider’s conviction, holding that the prosecution engaged in misconduct by calling Maggio solely to allow the jury to draw a negative inference from his silence.

    Facts

    Alvin Schneider, a New York City police officer, was accused of statutory rape of a 15-year-old girl. Schneider claimed he was merely helping the girl, who was having trouble at home. He testified that he took her to a motel but left shortly thereafter. To support his story, Schneider claimed that Maggio, a fellow police officer, was with him. Maggio initially corroborated Schneider’s story during a police disciplinary investigation. However, Maggio later recanted and faced his own disciplinary proceedings. Before trial, the prosecution knew Maggio would assert his Fifth Amendment privilege if called to testify.

    Procedural History

    Schneider was convicted after a jury trial. He appealed. The Appellate Division reversed the conviction. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecution committed prejudicial misconduct by calling a witness, Maggio, knowing that he would invoke his Fifth Amendment privilege against self-incrimination, when the primary purpose was to allow the jury to draw an adverse inference against the defendant.

    Holding

    Yes, because calling a witness solely to have them invoke their Fifth Amendment privilege, thereby inviting the jury to draw adverse inferences against the defendant, constitutes prosecutorial misconduct and warrants a new trial.

    Court’s Reasoning

    The Court of Appeals agreed with the dissenting justices at the Appellate Division who believed that the prosecution’s use of Maggio’s testimony was improper. The dissent argued that the prosecution knew Maggio would invoke his Fifth Amendment privilege. The court found that calling Maggio served no legitimate purpose other than to prejudice the jury against Schneider by implying that Maggio’s silence was an admission of Schneider’s guilt. The court emphasized that the prosecution cannot make a “conscious and flagrant attempt to build [a] case out of inferences arising from [Maggio’s] use of the testimonial privilege.” The court contrasted the situation with cases where the witness’s testimony served some other legitimate purpose, such as providing direct evidence or being subject to cross-examination on other matters. In this case, Maggio’s invocation of the privilege denied Schneider a fair opportunity to rebut the negative inference created by his silence. The dissent in the Court of Appeals argued that Schneider injected Maggio into the case and opened the door to Maggio’s testimony; therefore, no error occurred. The majority rejected this argument and reversed the conviction, ordering a new trial.