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March 3, 2015

Pardalis & Nohavicka Criminal Trial Law Update: Don't Count on Evidentiary Errors/Beware of Phone Call Data Spill

Teddy was convicted of criminal possession of a weapon in the second degree. He appealed. He lost, even though the Court committed the following errors:

1. It declined to give a missing-witness charge with respect to the People's failure to call the complaining witness and the People failed to demonstrate that they were not within their control;
2. It admitted testimony by the People's ballistics expert which did not help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror;
3. It  permitted an eyewitness to testify to her prior consistent statement.
It is important to note that it was determined on appeal that the trial court properly admitted a recording of a telephone call placed from Rikers Island using his inmate case booking number and PIN. The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered.   Here, the Rikers Island records custodian presented evidence providing the required foundation even though she conceded it would have been possible for another inmate to borrow the defendant's case booking number and PIN to place a call. The court stated that the concession went only to the weight of the evidence, not its admissibility.

People v Racks
http://www.nycourts.gov/reporter/3dseries/2015/2015_00913.htm

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