In 2019, the New York courts issued numerous evidence decisions, and the New York Legislature enacted several evidence-related statutes. Several stand out as they either state new rules or apply well-established rules in new factual scenarios, which in effect create new rules. Either way, the bar should be aware of these developments. I thought a presentation of them via a "quiz" might pique your interest, rekindling fond memories of law school exams and thereby maintaining your interest in reading the entire column. Have fun! The answers are also provided.

Quiz

1. In a motor vehicle accident case arising from a rear-end collision on the Thruway involving plaintiff's car and defendant's truck, plaintiff offers into evidence a satellite photograph of the accident and surrounding area to establish that the Thruway in that area was straight with no curves for a distance of two miles to where the accident occurred. The photograph notes the distances and the latitude/longitude of the area. When offering the photograph, counsel states that it was made by Google through its digital mapping service, and that the court should take judicial notice of the photograph and accompanying information and admit it. Should the request be granted?

2. In an attempted murder prosecution, the shooting victim testifies that she was walking with her boyfriend and moments before she was shot, he said a man was following them and had a gun. She identified defendant as the shooter but identification is somewhat shaky. When the People do not call the boyfriend to testify, defendant requests a missing witness charge. The People oppose the request, arguing only that the defendant failed to show the boyfriend's testimony would not be cumulative of the victim's testimony. Should the charge be given

3. In a motor vehicle accident case, plaintiff alleges she sustained a disc herniation and bulge at C3-C4 and C4-C5. Defendant served plaintiff with an IME demand, and then scheduled IMEs, which plaintiff did not attend. Plaintiff then underwent fusion surgery. Defendant moves for spoliation sanctions, noting that no emergency situation or medical urgency required the surgery when it was performed. Are spoliation sanctions appropriate?

4. In a personal injury action, plaintiff has sued two defendants. At trial, co-defendant A objects to the admission of certain evidence as hearsay, which objection is overruled. Jury returns a verdict of no cause of action against co-defendant A, but finds liability against co-defendant B. B did not join in A's objection. On B's appeal, is the hearsay ruling preserved for appellate review?

5. In a motor vehicle accident case, defense counsel in summation made numerous remarks that were clearly improper, but no objections by plaintiff's counsel to these comments were made. When the jury returns a verdict for defendant, plaintiff moves for a new trial on the ground the defense comments denied plaintiff a fair trial, and that it was unnecessary to object to preserve plaintiff's right to make the argument. Is plaintiff correct?

6. In a murder prosecution charging defendant killed his wife, defendant denies that he killed her. The People seek to admit evidence that defendant patronized prostitutes during the marriage and after the wife's death. Is the evidence relevant?

7. In a motor vehicle accident case, defendant alleges that he was not at fault. In support, defendant seeks to testify that the police officer who responded to the accident and engaged in an investigation did not issue him a traffic ticket. Is the testimony admissible?

8. In a motor vehicle accident case, arising out of plaintiff being struck while on his bicycle by a car driven by defendant, an issue is present as to whether at the time of the accident plaintiff was riding his bike with traffic or against traffic. Defendant testifies that plaintiff was riding his bike against traffic. Plaintiff has no memory of the accident, but testifies that he recalls leaving work, getting on his bicycle, and intending to take the same route home he took every day except when he rode the bus, which was riding with traffic. Plaintiff seeks the PJI "Habit" charge 1:71. Should it be granted?

9. In a sexual abuse of an eight-year-old child prosecution, defendant calls as a character witness a co-worker from his prior employment who will testify that he never heard anyone say that defendant had a reputation for abusive or sexually inappropriate conduct in their "working capacity." Is the testimony admissible?

10. In a custody proceeding, the child's mother calls the father, her ex-husband, on her direct case. Her counsel informs the trial judge she will examine the father using leading questions, and that the judge cannot preclude her from doing so. Is counsel correct?

11. In an assault prosecution, the People have called one of the two officers who were involved in the arrest and apprehension of the defendant following the assault. However, the officer cannot recall the circumstances leading to the arrest and apprehension of defendant. The People then seek to introduce into evidence the officer's grand jury testimony, as certified by the stenographer, wherein he fully testified what he observed and did as a past recollection recorded. The officer testifies that he appeared before the grand jury just days after the incident, testified truthfully and accurately before the grand jury, and his review of the grand jury transcript did not refresh his recollection. Is the grand jury testimony admissible?

12. In a motor vehicle accident case, the plaintiff offers into evidence the medical records of his treating physician, which also contains reports of other doctors who had treated plaintiff for his injuries, including unsworn MRI and X-ray reports, but would not be testifying at trial. The treating physician testified that he relied on these other reports in treating plaintiff. Are the reports of the other physicians admissible?

13. Same facts as in Question 12. May the treating physician rely on the reports in giving her opinion as to the extent, nature and cause of plaintiff's injuries?

14. In a fire loss case, defendants move for summary judgment, submitting in support the Fire Marshal's report. The report establishes the Fire Marshal conducted an investigation and concluded that the fire was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer. Is the report admissible on the motion?

15. In a motor vehicle accident case, the responding police officer, who did not witness the accident, identified in the accident report he prepared "passing or lane usage improper" by plaintiff as a contributing cause of the accident and attributed no contributing factors to defendant. The officer prepared the report at the scene. Defendant now submits the report in support of his motion for summary judgment. May the entry be considered?

16. In a construction accident case, plaintiff avers in his affidavit in support of his motion for partial summary judgment that he fell from a "pick" placed on a ladder on which he was working when the ladder slipped. However, when he was treated at a hospital, the hospital records contain an entry that states: "I was working on a ladder." Is the entry in the hospital record admissible when submitted by defendant so as to raise an issue of fact as to how he was injured?

17. Same facts as in Question 16. If the plaintiff were the source of the entry in the hospital records, is the entry now admissible?

18. In a vehicular homicide prosecution, the People allege defendant, while highly intoxicated, lost control of the car he was driving while traveling at a speed of 100 miles per hour, causing it to crash, resulting in the death of his two passengers. At the scene defendant said he was driving. At trial, defendant now asserts he was not driving due to his intoxication. To counter his admission, defendant seeks to call an expert psychiatrist to testify that defendant's cognitive abilities were impaired and he was confused as a result of his intoxication and trauma from the accident, which affected his short-term memory function. Is the testimony admissible?

19. In an action pursuant to BCL §§706(d), 716(c) commenced by plaintiff, the administrator of the estate of decedent shareholder of defendant, the defendant seeks discovery of a valuations report prepared by a third party of decedent's stock holdings for estate tax purposes, as requested by plaintiff's counsel. Is the report protected by the attorney-client privilege?

20. In a drug possession prosecution, the People offer into evidence an audio recording of a phone call placed from the jail where defendant was held prior to trial, alleging defendant made the call. No voice recognition proof is offered to authenticate the call and instead the foundation proof is evidence that the call was placed by use of the two PINS assigned to defendant by the jail for making calls; and the call was placed to defendant's mother and the called referred to her as "mom." Is there sufficient authentication?

Answers

1. Yes. See CPLR 4532-b, added by L. 2019, ch. 223, which was enacted for the purpose of expediting the admission process of Google-related digital imaging with accompanying information through judicial notice.

2. Yes. In People v. Smith, 33 N.Y.3d 454 (2019), the Court of Appeals held the party against whom the charge is sought to be given has the burden of showing the witness's testimony would have been cumulative. On the facts before it, the court held that the People failed to meet its burden due to inconsistencies in the victim's identification.

3. Yes. In Martinez v. Nelson, 64 Misc.3d 225 (Sup. Ct. Bronx Co. 2019), Judge John Higgitt held the condition of plaintiff's cervical spine was evidence that was capable of being spoliated.

4. No. B's failure to join in the objection made by A means B has failed to preserve the issue as a matter of law. See People v. Bailey, 32 N.Y.3d 70 (2019).

5. No. In Kleiber v. Fichtel, 172 A.D.3d 1048 (2d Dept. 2019), the court held that while "common courtesy" may require counsel not to interrupt the opposing party's counsel in summation, counsel had the "duty" to make a specific objection, seek a curative instruction or request a mistrial. In the absence of such an objection, a new trial may be granted only where the challenged comments are "so persuasive, prejudicial, and inflammatory" as to deprive a party of a fair trial. On the facts, the court held this standard was not met.

6. Yes. In People v. Crupi, 172 A.D.3d 898 (2d Dept. 2019), the court held the evidence was relevant to establish the victim's state of mind regarding the parties' marriage, to provide the jury with background information regarding the defendant's relationship with the victim and to show that there was marital strife, and to complete the narrative of the defendant's post-murder behavior.

7. No. In Queen v. Kogut, 173 A.D.3d 1796 (4th Dept. 2019), the appellate court held that the trial court erred in admitting such testimony, noting "evidence of non-prosecution is inadmissible in a civil action."

8. Yes. In Ortega v. Ting, 172 A.D.3d 1217 (2d Dept. 2019), the court held plaintiff's testimony was sufficient to establish his habit of riding his bicycle on that road at that time with traffic.

9. No. In People v. Durrant, 173 A.D.3d 890 (2d Dept. 2019), the court held that while negative evidence of reputation, i.e., that the witness never heard anyone say anything negative about the defendant, can constitute relevant character evidence, defendant's reputation in the workplace was not relevant to whether he abused a child outside of the workplace.

10. No. In Matter of Giaquinto, 164 A.D.3d 1527 (3d Dept. 2018), affd. 32 N.Y.3d 1180 (2019), and Argila v. Edelman, 174 A.D.3d 521 (2d Dept. 2019), both the Second and Third Departments held that while an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may be by leading questions, whether to permit such questions is a matter that rests in the sound discretion of the trial court. Where the adverse party has not shown to be evasive or reluctant in responding to questions, it is not an absence of discretion to preclude the use of leading questions.

11. In People v. Tapia, 33 N.Y.3d 257 (2019), the Court of Appeals held the foundation requirements for admitting the transcript as a past recollection recorded were established, and CPL 670.10 was not violated. Also, there was no Confrontation Clause violation as the officer testified at trial, albeit the testimony was "I don't recall."

12. Yes. In Freeman v. Shtogaj, 174 A.D.3d 448 (1st Dept. 2019), the court upheld the admissibility of a treating physicians' entire medical file containing reports from other physicians where those reports related to the diagnosis and treatment of plaintiff's injuries and were relied upon by the treating physician.

13. Yes. In Freeman, the court held such reliance was proper as the records were admitted into evidence via the physician's file and the other doctor's reports did not form the principal basis for the opinion.

14. Yes. In Mirdita v. Musovic Realty, 171 A.D.3d 662 (1st Dept. 2019), the court held the report was admissible under the business records exception, CPLR 4518(a). The court indicates that opinions in a business record are admissible to the same extent they would be admissible if the maker of the record were testifying at trial.

15. No. In Ardanuy v. RB Juice, 164 A.D.3d 1296 (2d Dept. 2019), the court held that since the source of the information contained in the report was not identified, it could not be established whether the source of the information had a duty to make the statement or whether some other hearsay exception applied. Thus, the entry was inadmissible.

16. No. In Cooper v. Delliveneri, 166 A.D.3d 1152 (3d Dept. 2019), the court held the entry is inadmissible as the "exact story of his fall" was not germane to his medical care. The dissenting Justice was of the opinion that how plaintiff fell was germane.

17. Yes. The Third Department in Cooper and the Second Department in Grechko v. Maimonides Med. Ctr., 175 A.D.3d 1261 (2d Dept. 2019) held that an entry in a hospital record that is not germane to treatment and thus not admissible under the business records exception may nonetheless be admissible as a party admission. However, this holding is contrary to the Court of Appeals resolution of this "admissions" issue in Williams v. Alexander, 309 N.Y. 283 (1955). Commentators, including this commentator, have noted this point. See Alexander, Practice Commentaries to CPLR 4578, C4518:3 (2015), Book 7B, McKinney's Cons. Laws.

18. No. In People v. Pascuzzi, 173 A.D.3d 1367 (3d Dept. 2019), the court held the expert's testimony was inadmissible as its subject matter was "within the average juror's understanding, not beyond the range of ordinary knowledge or intelligence and does not require professional or scientific knowledge."

19. No. In Galasso v. Cobleskill Stone Prods., 169 A.D.3d 1344 (3d Dept. 2019), the court held the report was not privileged as it was not prepared for legal purposes. The fact that litigation now commenced and the report supports plaintiff's action does not give it privileged status.

20. Yes. See People v. Sostre, 172 A.D.3d 1623 (3d Dept. 2019).

Michael J. Hutter is a professor of law at Albany Law School and is special counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence as prepared by the Chief Judge's Evidence Guide Committee. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.