Michael J. Hutter
Michael J. Hutter ()

The 2016-2017 Term of the Court of Appeals and the four Appellate Division departments produced a number of significant evidence decisions. Most of these decisions have previously been discussed by this columnist1 and other New York Law Journal columnists.2 This column and the next one will focus on a handful of evidence decisions which are also deserving of comment due to their practical impact upon the trial of civil and criminal cases and which might otherwise be overlooked by the bench and bar due to their less-heralded nature.


New York’s Molineux rule, applicable in both civil and criminal actions, provides that when evidence of other crimes, wrongs or acts committed by a person is offered for the purpose of raising an inference that the person is likely to have committed the crime charged or the act in issue, the evidence is inadmissible. People v. Molineux, 168 N.Y. 264, 291-93 (1901). However, where the evidence of other crimes, wrongs or acts is offered for a non-conformity or non-propensity purpose which is relevant in the action, the evidence may be admissible. Id. at 293-94.3 Which side of the line drawn by Molineux offered evidence fell on was in issue in two interesting cases.

In Mazzella v. Beals, 27 N.Y.3d 694 (2016), an action for medical malpractice and wrongful death, plaintiff alleged that defendant doctor caused decedent’s suicide by failing to properly prescribe and monitor decedent’s medications and by failing to adequately diagnosis his worsening condition. At trial, evidence of a consent order between defendant and the New York State Office of Professional Medical Conduct concerning defendant’s negligent treatment of 12 other patients by reason of his failure to adequately monitor and evaluate them after prescribing medications was admitted. The claimed basis for its admission was that it was relevant on the issue of negligence and causation. The Court of Appeals held the consent order should not have been admitted, and accordingly set aside the jury verdict for plaintiff.

The court noted the inference readily apparent from the consent order, namely, defendant was a serial pill pusher, oblivious to the health and safety of those in his care, and a danger to his patients, including decedent. The court initially held its obvious purpose was a conformity or propensity purpose which ran afoul of the Molineux exclusionary rule. Id. at 709. It then held none of the Molineux non-conformity purposes were applicable. Id. at 710. Lastly, the court emphasized that even if there were some possible relevance that could be attributed to the consent order, such relevance was outweighed by the “obvious” undue prejudice of his repeated violations of accepted medical standards.” Id.

Mazella is an instructive decision. It shows that courts will assess the evidence’s true purpose itself, and when a prohibited purpose is present, the party offering the evidence must be able to point to a relevant non-conformity purpose. Failing that, the evidence must be excluded. Lastly, the court as a “friendly” reminder noted that even if a relevant purpose is present, the evidence must be excluded if such relevance is outweighed by the possible prejudice created by the evidence. Notably, the court indicated that such inquiry, mandated in criminal actions, is equally mandated in civil actions as well.

In People v. Destin, 150 A.D.3d 76 (2017), an identity theft prosecution involving a bank in the context of defendant’s attempt to cash a counterfeit check written to her, the People called on its direct case an employee of the bank at the time of defendant’s scheme. The employee no longer worked for the bank and was now employed as a police officer. The trial court permitted the witness to testify in his police uniform, be addressed as “Officer,” and mention his current employment. The First Department held the trial court did not abuse its discretion in so ruling, especially since the court instructed the jury to scrutinize a police officer’s testimony by the same standards by which it would evaluate that of any other witness. Id. at 83-84.

Although the First Department did not expressly reference Molineux, it is clear the trial court’s ruling and the First Department’s treatment of it presented a Molineux issue. In that regard, the evidence admitted could be viewed as an improper attempt to have the witness bolster his credibility with evidence of good character. Such a purpose is, of course, an inadmissible conformity purpose. However, the Court of Appeals in People v. Kozlowski, 11 N.Y.3d 223 (2008), held that, without violating the Molineux exclusionary rule, a witness can be asked personal background questions, the answers to which create a favorable impression of the witness. Id. at 14-15. Background, in other words, is a relevant non-conformity purpose.

This background category was properly invoked by the People in Destin. The First Department so recognized, and consistent with Court of Appeals directives, noted the trial court’s jury instruction minimized any possible prejudice to defendant. Its decision also implicitly recognized that the extent and nature of background evidence that may be elicited from the witness is subject to the sound discretion of the trial court.4

Expert Opinion

In People v. Oddone, 22 N.Y.3d 369 (2013), the Court of Appeals held that an expert may base an opinion solely upon his or her relevant experience. Experience includes: “What [the expert] had observed, heard and read about particular cases.” Id. at 376. The pathologist expert in Oddone gave an opinion as to the cause of the victim’s death. He admitted that he was unaware of any studies or scientific principles that supported his opinion. Instead, the basis for his opinion was that he had “examined many dead bodies and heard and read many accounts of how victims met their deaths. Id. at 371. That experience was sufficient to support the pathologist’s opinion. Notably, Oddone was silent as to whether the trial court must determine initially whether the proffered experience was sufficient to support the reliability of the opinion. See Barker and Alexander, Evidence in New York State and Federal Courts (2d ed) §7.5.

The First Department addressed that foundation issue in People v. Brooks, 134 A.D.3d 574 (2016), lv. granted, 27 N.Y.3d 1149 (2016) (Pigott, J.). In this murder prosecution, the trial court precluded defendant’s pathologist from affirmatively opining that the victim was not forcibly drowned. This opinion took into consideration the amount of fluid in the sphenoid sinus. The basis for the trial court’s exclusion of the opinion was the absence of published authority that supported the opinion and that the pathologist’s experience was insufficient to allow him to give his opinion as to the cause of death.

This ruling was upheld by the First Department as a proper exercise of the trial court’s discretion. Recognizing that experience could be the basis for an expert’s opinion, the court nevertheless held here the pathologist’s experience was insufficient. Interpreting Oddone as requiring a trial court to scrutinize an expert’s proffered experience before determining it as a proper basis, id. at 574, the court noted that only one of the “hundred” autopsies he performed had involved a forcible drowning, and even as to that one, the expert could not recall whether the victim had fluid in the sphenoid sinus. According to the First Department, the “pathologist’s experience simply provided no basis for him to opine that fluid in the sphenoid sinus is a sine qua non marker of forcible drowning. Id. at 575 (emphasis in original).

Brooks represents a welcome development as it seeks to assure reliability in an expert’s opinion based on claimed “experience.” In that regard, it recognizes that a trial court is charged with ensuring that when an expert claims his or her experience is the basis for the offered opinion the experience must be scrutinized to ensure that it is related to that opinion and is of sufficient quantity and or quality to support the opinion’s reliability.


New York defines hearsay, as all jurisdictions do, as an out-of-court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. A statement can be verbal, written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion. As stated by the Court of Appeals in People v. Salko, 47 N.Y.2d 230, 238 (1979), the hearsay bar does not encompass verbal or non-verbal conduct which “is not intended to serve as an expressive communication.” In two decisions, the Court of Appeals ventured into an area rife with conflicting views among state and federal courts and academic commentators concerning what constitutes a statement.

In People v. Jones, 28 N.Y.3d 1037 (2016), a burglary prosecution arising from the theft of packages from a FedEx delivery truck, the People elicited testimony from a witness who stated that she heard an unidentified woman passerby ask a police officer: “Did you see he [referring to the defendant] was trying to get into the back of the truck? Are you going to get him?” Soon thereafter the police officer saw defendant emerge from a nearby building and arrested him.

The People argued the testimony was relevant as it could be inferred from the questions that the woman identified the defendant as the one who stole the package from the truck; and those utterances were admissible even though made out-of-court and admitted for a truth purpose as they were encompassed under either the excited utterance or present sense impression hearsay exceptions. Id. at 1038-39. The trial court agreed with the People. The Court of Appeals held the statements were properly admitted as present sense impressions. Id. at 1039.

While the Court of Appeals ruling was clearly correct as the prosecutor established the contemporaneity and corroboration elements necessary to qualify an out-of-court statement as a present sense impression, it must be noted that the Court of Appeals could have, and perhaps should have, stated that the utterances involved were not hearsay at all since they were not statements, and thus not hearsay. In that regard, there is substantial precedent from other jurisdictions which hold the hearsay rule does not bar the admission of a question as its function is not assertive and thus not hearsay at all because it is not a statement. See Binder, Hearsay Handbook §2:2. In other words, the questions asked by the unidentified passerby are not hearsay because, like most questions and inquiries, they did not and were not intended to assert anything. To be sure, there are assertions implicit in the questions, i.e., “Are you going to arrest him?” is an assertion that the passerby observed defendant committing a crime. However, implied assertions are generally not viewed as constituting statements. See U.S. v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990).

Since the Court of Appeals did not directly address this statement issue, Jones should not be viewed as precedent declaring that questions can be viewed as assertive statements, and are admissible only if they are admitted for a non-truth purpose or fall within a hearsay exception. In short, this issue is still an open one in New York.

In People v. Stone, 29 N.Y.3d 166 (2017), a prosecution arising out of defendant’s assaulting of his estranged wife’s intimate partner, the wife did not testify, as the People were unable to locate her. However, a detective testified that he was assigned to investigate the assault, and as part of his investigation he spoke with the wife; and that after speaking with the wife his investigation focused on the defendant. The contents of the conversation were not elicited or otherwise disclosed. Id. at 169. Nonetheless, defense counsel immediately objected to the “whole implication” arising from the detective’s testimony about the wife and asked that the testimony be stricken and as well moved for a mistrial. The trial court denied the motion for a mistrial but struck the testimony, and instructed the jury to disregard the testimony that the detective spoke with the wife. Id. at 169.

The Court of Appeals held the detective’s testimony was hearsay, and as well could be viewed as a testimonial statement that was inadmissible under the Confrontation Clause rule of Crawford v. Washington, 541 U.S. 36, 51 (2004). Id. at 170. However, the court held reversible error was not present as the detective’s testimony was not so powerfully incriminating such that it could not be cured by the trial court’s instructions. Id. at 171-73.

The court did not explain why the detective’s testimony was hearsay when he never testified to what in fact the wife said to him. How then could the testimony be hearsay? Involved in this issue, but not mentioned by the court, is the implied hearsay rule. Under this rule, testimony that implies someone has made an out-of-court assertion when such testimony is offered to prove the truth of that assertion, is subject to the hearsay objection, as it is just as objectionable as an express relating of the assertion itself. See Binder, supra, §1:10. The detective’s testimony clearly was objectionable as implied hearsay.

Although not expressly saying so, Jones has certainly adopted the implied hearsay doctrine for New York. While most jurisdictions have recognized this doctrine, id., prior to Jones only the Third Department had adopted it. People v. Bent, 160 A.D.3d 1176, 1178 (3d Dept. 1990). Its adoption is a salutary development as otherwise litigants could easily avoid the hearsay bar as the People did in Jones.


1. See Hutter, “Stock and The Application of the Intra-Law Firm Privilege,” N.Y.L.J., Oct. 4, 2016, p. 3, co. 3; Hutter, “People v. Smith and Bad Acts Impeachment,” N.Y.L.J., Nov. 30, 2016, p. 3, col. 3; Hutter, “Admissibility of Business Records Containing Out-Of-Court Statements,” N.Y.L.J., Feb. 1, 2017, p. 3, col. 3; Hutter, “‘People v. Vining’: Adoptive Admissions by Silence,” N.Y.L.J., April 5, 2017, p. 3, col. 3; Hutter, “Using Employer’s Server for Personal Communications—Privilege Protected?” N.Y.L.J., May 31, 2017, p. 3, col. 3.

2. See Kamins, “Court of Appeals Expands the Co-Conspirator Exception,” N.Y.L.J., April 3, 2017, p. 3, col. 3; Schechtman, “Patterson Raises Complex Questions About Hearsay Evidence,” N.Y.L.J., Feb. 10, 2017, p. 3, col. 3; Hoenig, “Powerpoints and Other Persuasion Tools,” N.Y.L.J., April 10, 2017, p.3, col. 3.

3. For a discussion of the various non-conformity purposes recognized by the Court of Appeals, see Martin, Capra & Rossi, New York Evidence Handbook (2d ed) §4.8.6-10; Prince, Richardson on Evidence (Farrell 11th ed.) §§4-503-514.

4. For further discussion, see Justice Richard Andrias’ concurring opinion in People v. Valdez, 53 A.D.3d 172, 178 (2008).