The past judicial year—September 2022 to August 2023—produced numerous decisions resolving evidentiary disputes. While it is not feasible to discuss all of them, or even a lot of them, it is worthwhile to focus on several decisions that all practitioners—civil, criminal, Family Court—should note and keep in their evidence toolkit, along with the "Guide to New York Evidence."

The decisions will be presented in quiz form to "incite" your interest in reading this column.

Questions

1. In a dog bite personal injury action, plaintiff calls Dr. Edwards as his expert to testify as plaintiff's need for facial reconstruction surgery as the result of the dog bite. She seeks to testify as to the history of plaintiff's facial condition before the bite, the attack, his pain and discomfort, all as related by plaintiff to her. Defendant objects. Sustain or overrule?
2. In a motor vehicle accident case, plaintiff alleges that, among other injuries, she suffered extensive injuries to her left shoulder as a result of the subject accident, occurring in 2013. At the trial on damages, liability previously determined, defendant seeks to downplay any causal connection between her claimed shoulder injury and the accident. In support, defendant offers into evidence a certified copy of plaintiff's no-fault insurance carrier file, which contains operative and pathology reports prepared by physicians in 2002, following an accident that occurred that year, which reports were not certified. The trial court admitted the file and rejected plaintiff's objection to the admission of the reports in the file, arguing there was no foundation for their admission as the reports were not certified and defendant did not show any relationship between the carrier and the physicians preparing the reports. Sustain or overrule?
3. In a bail jumping prosecution, a former assistant district attorney seeks to testify that in the prior trial of the defendant, at which defendant was out on bail, the trial court after conclusion of the first day at trial noted that he (defendant) had to be "back here, the next morning." Defendant objects to the testimony as seeking hearsay evidence. Sustain or overrule?
4. In an assault prosecution, defense counsel at trial seeks to question a police officer regarding the police report of the interview of the complainant by the police officer conducted in the hospital the day of the incident. At trial, the complainant testified defendant "split my head open" with "a big cutting device." The report prepared by the police officer contained no such identification and stated instead that complainant "believes he would be able to identify the persons responsible for attacking him." Defendant objects. Sustain or overrule?
5. In a murder prosecution, the prosecution's only eyewitness to the shooting has testified at trial that he and his girlfriend on the night of the murder exited the A train at about 11:30 p.m., and were walking together for about 20 minutes to his home when he saw defendant shooting at the victim. Defendant on his direct case seeks to call the girlfriend who will testify that she was not with him at any time that night. Prosecutor objects citing the testimony is barred by New York's collateral evidence rule. Sustain or overrule?
6. In this sex abuse prosecution involving an eight-year-old complainant, the complainant's mother has testified against defendant. Defendant seeks to introduce testimony from a friend of his older sister on the subject of the reputation of the truthfulness and veracity of the mother. To lay the foundation for such testimony, she, a staff sergeant in the United States Army, described a community of seven or eight friends and acquaintances, predominantly of Haitian nationality, and predominantly living within certain neighborhoods in Brooklyn; that she had known the mother since 1999; that almost everyone she knew also knew the mother; that every time she saw her acquaintances among this group, the mother's reputation of truthfulness and veracity was discussed; and that her reputation was that of being an untruthful person. The People object. Sustain or overrule?
7. In a Family Court Article 6 proceeding in which the father seeks sole legal and physical custody of his children, the trial judge has admitted screen shots of certain text messages between the mother and the children, finding the messages to be sufficiently authenticated and relevant to her unfitness. The mother now seeks to introduce other text messages between her and the children to resolve claimed distortion of her relationship with her children created by the admission of the text messages offered by the father. The father objects. Sustain or overrule?
8. Plaintiff was injured when, after finishing using the facilities in the half-way house where she resided, she reached for a paper towel located above the toilet seat, and as she did so, she stepped on a drain cover on the floor and the drain cover collapsed under her foot, causing her to twist her ankle and fall. Plaintiff has sued the owner of the half-way house, and after discovery moves for partial summary judgment on liability, invoking res ipsa loquitur. Her deposition testimony is submitted regarding how the accident occurred and is uncontradicted and defendant did not submit any evidence suggesting any plausible explanation for the accident. Grant the motion?
9. At the trial of a motor vehicle accident case, defense counsel elicited testimony from plaintiff concerning a workers' compensation claim that he filed for the subject motor vehicle accident. Trial court instructed the jury that this testimony concerning workers' compensation has now been stricken from the record and should not be considered. Thereafter, during summation, defendant's counsel twice referenced plaintiff's workers' compensation claim and each time, the court sustained plaintiff's counsel's objection and instructed the jury to disregard said comments as they were irrelevant. The jury returned a verdict in favor of defendant, and when trial court denied plaintiff's CPLR 4404(a) motion to set aside the verdict, judgment was entered for defendant. On appeal, plaintiff argues that a new trial is warranted as the instructions did not cure the prejudice resulting from the testimony and summation. Defendant in response argues that since plaintiff did not move for a mistrial on this ground, he waived his right to seek appellate review on this ground. Agree with whom?
10. In a drug prosecution, the prosecutor moves to permit the use of a PowerPoint presentation during the prosecution's opening statement, and provides copies of the presentation to the trial court and defense counsel. Defense counsel objects on the ground that PowerPoint presentations cannot be used as a matter of law as they are inherently prejudicial in an opening. Sustain or overrule?
11. In this construction law accident case, defense counsel has made a motion in limine for an order prohibiting plaintiff's counsel from making improper remarks during the trial, specifically seeking to prohibit plaintiff's counsel from mentioning a specific dollar amount in the opening statement or the examination of witnesses, arguing CPLR 4016(b) requires that order. Grant or deny?
12. In a motor vehicle accident involving a collision between plaintiff's SUV and tractor-trailer driven by Charles and owned by defendant X Trucking Co., plaintiff calls a Bruce, a bystander, who will testify that he (Bruce) saw the accident, rushed to help plaintiff who was in pain, and heard Charles say: "Damn, I shouldn't have driven my rig after those five martinis." Defendant objects, arguing Charles' statement is inadmissible hearsay. Sustain or overrule?
13. In a motor vehicle accident case, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff was the sole proximate cause of the accident. In support, defendant submits an uncertified copy of a police report in which the reporting police officer states that plaintiff told him (the officer) that "The accident was all my fault. I was not paying attention but texting at the time of the accident." Plaintiff argues that the admission as stated in the offered police report is not admissible evidence on the motion. Agree or disagree?
14. In a wrongful death action, defense counsel immediately after conclusion of jury selection and before opening statements, requests the trial court to exclude from the courtroom persons that will be testifying in the trial and that such persons may not read transcripts of the testimony of witnesses who have testified before they testify. Plaintiff objects to the latter, arguing the trial judge lacks the power to direct such prohibition. Sustain or overrule?
15. In a tort action alleging, among several claims, a legal malpractice claim, plaintiff moves to compel disclosure of correspondence between the public relations manager for a former client of defendants and defendant attorney. The defendant attorney contends that the conversations are protected by the attorney-client privilege and plaintiff in response argues the communications are not privileged because they reflect a discussion of public relations strategy for the present action. Compel disclosure?
16. In a slip and fall action in which plaintiff alleges that she fell through a broken step on a public staircase in a multi-family building owned by defendant, defendant offers into evidence, over objection, entries in plaintiff's medical records wherein it states that plaintiff told the nurse preparing the medical record that "I was injured when I slipped and fell down a few stairs." Defendant argues that even if the entry was not germane to plaintiff's medical treatment at the hospital, it is admissible as an admission of plaintiff as the entry is inconsistent with her position taken at trial. Sustain or overrule?
17. Defendant, 15 years old, indicted for murder, and subsequently arrested on that charge, is being held at the local precinct. He calls his father, and when his father arrives at the precinct, he meets privately with his son in that precinct's interview room. It was observable that the father and son were conversing with each other and parts of the conversation were recorded. Defendant has now moved to suppress the recorded conversation on the ground they were protected by the common law parent-child privilege. Grant the motion to suppress?
18. In a construction accident case alleging a violation of Labor Law §240(1), plaintiff moves for partial summary judgment on liability on the basis that defendant owner and general contractor failed to provide him a safety device which would allow him to perform his assigned work in the manner necessary to achieve the desired result. In the absence of a suitable device, plaintiff improvised and his improvised work platform collapsed when he was working on it. In support, plaintiff testified that the single scaffold supplied for his performance of similar tasks on numerous prior occasions was insufficient to permit him to accomplish the desired result for the task assigned. Defendant submitted in response an affidavit from his construction expert who opined that, contrary to plaintiff's claim, the job could be performed properly with the single scaffold. Plaintiff argued that the opinion should be rejected as there was an insufficient foundation for it because the expert had not, prior to so opining, conducted any test that showed his opined approach would accomplish the desired result. Is the defendant's expert's opinion admissible?
19. Defendant is charged with assault in the second degree, a charge that arose when his Porsche struck a police car in a "T-bone" fashion, causing substantial injuries to the police officer in the police car. To establish the necessary "recklessness" element of the crime, the People introduced proof that established the speed of defendant's Porsche at the time of the crash was between 47 and 52 miles per hour, and perhaps as fast as 57 miles per hour, but the People did not submit evidence of the posted speed limit. On the appeal of his conviction, the People asked the appellate court to take judicial notice that the posted speed limit for the street defendant was driving on – 185^th Street in Manhattan – would have been no more than 25 miles per hour. Is the taking of judicial notice appropriate?
20. Defendant pleaded guilty to criminal possession of a weapon after the trial court denied his motion to suppress the weapon recovered after the vehicle in which he was a passenger was stopped by the police. At the suppression hearing, the police officer testified he stopped the vehicle as he visually estimated the vehicle speed at 40 to 45 miles per hour in a 30 miles per hour zone. On appeal, defendant argues the opinion of speed is legally insufficient as no foundation for it was present since there was no proof of the officer's training and qualifications to support his visual estimate of defendant's speed. Agree?

Answers

1. Sustain. Wilt v. Monteul-Cohen, 197 AD3d 1133 (2d Dept. 2022).
2. Sustain. Basden v. Liberty Lines Transit, 212 AD3d 427 (1^st Dept. 2023).
3. Overrule. People v. Matus, 203 AD3d 1178 (2d Dept. 2022).
4. Overrule. People v. Ramunni, 203 AD3d 1076 (2d Dept. 2022).
5. Overrule. People v. Deverow, 38 NY3d 157 (2022).
6. Overrule. People v. Julie Lisene, 201 AD3d 738 (2d Dept. 2022).
7. Overrule. D.T. v. C.T., 215 AD3d 1232 (4^th Dept. 2023); see also Guide Rule 4.03.
8. Yes. Valdez v. Upper Creston, 201 AD3d 560 (1^st Dept. 2022). Compare Maroonick v. Rae Realty, 205 AD3d 423 (1^st Dept. 2022).
9. Defendant. Shehata v. Koruthu, 201 AD3d 761 (2d Dept. 2022).
10. Overrule. People v. Santana, 209 AD3d 566 (1^st Dept. 2022).
11. Deny. Harnaraine v. D. Lia Realty, 78 Misc3d 952 (Sup. Ct. Suffolk Co. 2023).
12. Overrule. CPLR 4549 (L. 2021, ch. 833, effective 12/31/21).
13. Agree. Pena v. KST Trucking, Inc., 206 AD3d 1007 (2d Dept. 2022), citing Yassin v.       Blackman, 188 AD3d 62 (2d Dept. 2021).
14. Overrule. See Guide Rule 6.03; FRE 615 (amendment effective 12/1/23).
15. Yes. Gottwalde v. Geragos, 205 AD3d 417 (1^st Dept. 2022).
16. Overrule. See Fraser v. 147 Rockaway Pkw., 203 AD3d 894 (2d Dept. 2022). But see      Yassin, supra.
17. Yes. People v. Kemp, 213 AD3d 1321 (4^th Dept. 2023).
18. Yes. Morin v. Heritage Builders, 211 AD3d 1138 (3d Dept. 2023).
19. Yes. People v. Rosario, 205 AD3d 581 (1^st Dept. 2022).
20. Accept. People v. Suttles, 214 AD3d 1313 (4^th Dept. 2023).

Michael J. Hutter is a Professor of Law at Albany Law School and is special counsel to Powers & Santola. He is also the reporter to the Chief Judge's Evidence Committee, which has prepared the Guide to New York Evidence. The views expressed in this column are those of the author, and do not reflect the views of the New York Unified Court System Guide to New York Evidence Committee.