Claimant's motion in limine to preclude certain hearsay at trial was granted and cross motion to preclude cumulative and allegedly irrelevant testimony was denied, with leave to renew, at the time of trial.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Cohen & Fitch, LLP
By: Gerald M. Cohen, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas G. Ramsay, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 27, 2021|
|See also (multicaptioned case)|
Claimant moves in limine to preclude certain hearsay evidence at the trial of this matter, which is scheduled to commence on June 8, 2021. Defendant opposes the motion and cross-moves to preclude certain other evidence.
Claimant seeks damages for unjust conviction under Court of Claims Act § 8-b arising from her conviction on February 4, 2015 of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 , ) and one count of criminal possession of a controlled substance in the seventh degree (§ 220.03). Following an appeal the judgment was reversed on the ground the evidence was insufficient to conclude the claimant constructively possessed the drugs found in an apartment in which she was present at the time of her arrest. According to claimant's counsel, the main issue in claimant's criminal trial and "the only issue in the instant matter" is whether the claimant was aware or had knowledge of the illicit drug activities taking place in the apartment (Cohen affirmation dated May 13, 2021, ¶ 7). In reversing the judgement, the Appellate Division, Fourth Department, stated:
"Where, as here, there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant 'exercised "dominion or control" over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized' " (People v Williams, 162 AD3d 1544, 1545 [4th Dept. 2018], quoting People v Manini, 79 NY2d 561, 573 ).(1)
Claimant now seeks to preclude the admission of certain recent deposition testimony given by Investigator Paul Paladino, one of the investigators assigned to the case. After testifying at the deposition that he has no recollection of claimant's presence in the apartment during the first of the two drug buys, Investigator Paladino testified for the first time that he believes the claimant was present in the apartment during the course of the second drug buy based on a statement made by Rebecca Fuller, a confidential informant who is now deceased. Specifically, Investigator Paladino stated:
Q. ...So you're pretty confident that [the claimant] wasn't there when these drug sales [were] happening?
A. I wouldn't be able to say one way or the other.
Q. Okay. Now, the second sale of drugs made by Derek Bond to the confidential informant, was [claimant] there?
A. I believe so. She was identified as a short black woman, I believe the confidential informant called her a troll.
Q. A troll?
Q. She was - and she was there?
A. The troll looking woman was there, yes.
Q. Okay, Okay. And did you - you didn't put this in your [warrant] application did you?
A. I did not (claimant's Exhibit C, p. 29).
Investigator Paladino also made clear that the claimant was not the target of the investigation, that "[s]he wasn't involved with the controlled purchase at all[,] [s]he was just present" (id. at p. 30), and he had no knowledge of whether or not she was aware of what was going on at the time of the drug sale (id. at p. 31).
Hearsay has been defined as "[o]ut-of-court statements introduced to prove the truth of the matters they assert . . . and may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" (People v Brensic, 70 NY2d 9, 14 ). Here the informant's purported references to the presence of a "troll" in the apartment were out-of-court statements that will be offered, if at all, for the truth of the matters they assert, i.e., claimant's presence in the apartment at the time of the drug sale (claimant's Exhibit C, p. 29).
Defendant contends that the statements claimant seeks to preclude are admissible hearsay because they fall within the exception applicable to present sense impressions. "As generally stated, the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" (People v Brown, 80 NY2d 729, 732 ). The Court of Appeals in Brown made clear that the out-of-court statement must be spontaneously made at the time of the event or shortly thereafter and be sufficiently corroborated by extrinsic proof (see also People v Vazquez, 88 NY2d 561, 575  ["The general idea . . . is that there must be some independent verification of the declarant's descriptions of the unfolding events."]). In Brown, therefore, the Court found that a 911-caller's description of two burglary suspects was admissible as a present sense impression because it was contemporaneous with his observations and corroborated by the police officer's description of the suspects found running from the scene. Such statements are deemed reliable "not because of the declarant's excited mental state but rather because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory" (People v Vazquez, 88 NY2d at 574). Here, by contrast, the statement regarding the alleged presence of a short female "troll" in the apartment was made at some unspecified point after the drug sale and, thus, the Court is unable to conclude it was made contemporaneously with the event giving rise to the claimant's arrest (Claimant's exhibit C, p. 29; see e.g. People v Parchment, 92 AD3d 699 [2d Dept 2012]).
Nor is the substance of the statements corroborated. No proof has been disclosed indicating that a single witness testified during the course of the criminal case that claimant was present in the apartment at the time of the sale. Indeed, Rebecca Fuller, the confidential informant, testified at two search warrant hearings that she twice participated in a controlled purchase of illicit drugs at the apartment where claimant was arrested, once on July 25, 2014 and once on August 5, 2014.(2) Although Ms. Fuller testified regarding her drug purchases at both hearings, she never once mentioned the claimant's presence in the apartment. Nor was any evidence offered during the course of the criminal trial regarding claimant's presence in the apartment at the time of the drug transactions (see People v Williams, 162 AD3d 1544 [4th Dept 2018]).(3) Investigator Paladino's recent revelation, over six years after the trial, that the informant told him of the presence in the apartment of a short black woman, who she described as a "troll," is too vague and insufficiently particular to constitute corroborating evidence of claimant's presence in the apartment at the time of the drug transaction (claimant's Exhibit C, p. 29). If the expression was intended to refer to an unattractive female, suffice it to say that such subjective opinion evidence may not be relied upon to describe the appearance of a particular individual. Nor is the reference to a short black woman sufficiently specific so as to constitute corroborating evidence of the claimant's presence in the apartment at the time of the drug transaction. Inasmuch as the confidential informant is deceased and unavailable for cross-examination, the lack of contemporaneity and corroborating evidence render the statements insufficiently reliable to be admitted into evidence. Claimant's motion in limine to preclude the hearsay testimony of Investigator Paladino regarding the informant's description of a short troll-like woman in the apartment at the time of the illicit drug sale on August 5, 2014 is granted.
Turning to the defendant's cross motion, defendant seeks to preclude testimony from claimant's relatives, disclosed as witnesses by the claimant, who it asserts are expected to testify regarding claimant's frequent absences from her apartment to care for her elderly parents. Defendant contends that any such evidence is irrelevant to the extent none of the proposed witnesses are expected to state she was at their home on August 5, 2014, the date of the drug sale which led to claimant's arrest. In addition, defendant contends that any such evidence will be cumulative of the claimant's testimony. At this juncture, the Court is unable to conclude that the anticipated testimony is irrelevant or cumulative and will therefore deny the defendant's motion with leave to renew at the time of trial, if appropriate.Accordingly, claimant's motion is granted in accordance herewith and defendant's cross-motion is denied with leave to renew at the time of trial.
May 27, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
M-96777 and CM-96789
1. Notice of motion dated May 13, 2021;
2. Affirmation in support dated May 13, 2021, with Exhibits A-D;
3. Memorandum of law dated May 13, 2021;
4. Notice of cross motion dated May 19, 2021;
5. Affirmation in support of cross motion and opposition to motion dated May 19, 2021, with Exhibits A-F;
6. Claimant's reply memorandum of law dated May 21, 2021, with Exhibit E.7. Reply Affirmation dated May 24, 2021, with Exhibit A.
1. During the course of depositions in the instant matter, claimant admitted that it was her apartment where the drugs were found and the arrests occurred (defendant's Exhibit B to cross motion, ¶¶ 20-21).
2. Claimant was arrested on August 5, 2014, sometime after the completion of the drug sale earlier that day.
3. During the trial, at a time when the confidential informant was still alive,(4)
4. Ms. Fuller died on September 5, 2017, according to her obituary (claimant's Exhibit D). " " ' -