probability error in New York

2025Thus, under the nonconstitutional standard, a finding of harmlessness is precluded only if there is a significant probability that the error made the difference between conviction and acquittal, while under the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder's determination ( see Chapman v California , 386 US at 23-24 ["An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless"]).

2025Thus, under the nonconstitutional standard, a finding of harmlessness is precluded only if there is a significant probability that the error made the difference between conviction and acquittal, while under the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder's determination ( see Chapman v California , 386 US at 23-24 ["An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless"]).

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2024We disagree with our dissenting colleague that such usage constituted harmless error ( see id. at 69 [remanding for new trial where trial court improperly introduced evidence during bench trial, depriving a party of the opportunity to advance an argument, and there was a significant probability that the error affected the verdict]; Orlich v Helm Bros. , 160 AD2d 135, 141 [1st Dept 1990] ["We modify . . . to express our disapproval of the court's usurpation of the advocate's role in delineating a theory of liability neither advanced by the parties nor supported by the record"]; see also Matter

2022Nevertheless, even if defendant correctly characterized the evidence at issue and that the court erred in its preclusion ruling, any error was harmless in view of the overwhelming evidence of defendant's guilt and the absence of a significant probability that such error contributed to the finding of guilt ( see People v Gannon , 174 AD3d 1054 , 1061 [3d Dept 2019], lv denied 34 NY3d 980 [2019]; see generally People v Crimmins , 36 NY2d 230 [1975]).

2017This error was not harmless, as there is a significant probability that the error might have contributed to the defendant's convictions ( see People v Johnson , 57 NY2d 969, 970 ; People v Crimmins , 36 NY2d 230, 241-242 ).

2016Since the trial court had instructed the jury that it could consider the results of the chemical breath test in its deliberations on the common-law driving while intoxicated count, and in light of the fact that the chemical breath test result was almost triple the legal limit, we cannot conclude that the error in admitting this evidence was harmless beyond a reasonable doubt, as there is a significant probability that the error contributed to the conviction ( see People v Baghai—Kermani , 84 NY2d 525, 532-533 [1994]; People v Griesbeck , 17 AD3d 717 [2005]; Hao Lin , 46 Misc 3d at 26 ; cf. Peo

2016Since the trial court had instructed the jury that it could consider the results of the chemical breath test in its deliberations on the common-law driving while intoxicated count, and in light of the fact that the chemical breath test result was almost triple the legal limit, we cannot conclude that the error in admitting this evidence was harmless beyond a reasonable doubt, as there is a significant probability that the error contributed to the conviction (see People v Baghai-Kermani, 84 NY2d 525, 532-533 [1994]; People v Griesbeck, 17 AD3d 717 [2005]; Hao Lin, 46 Misc 3d at 26 ; cf. People

2016We note that, on this appeal by defendant, this court may not review the propriety of the City Court's ruling that the breath test results were inadmissible, since that ruling did not adversely affect defendant ( see CPL 470.15 [1]; People v Nicholson , 26 NY3d 813 [2016]; People v Concepcion , 17 NY3d 192 , 195 [2011]; People v LaFontaine , 92 NY2d 470 [1998]; People v Westbrook , 180 AD2d 772 [1992]; People v El-Khawam , 24 Misc 3d 133 [A], 2009 NY Slip Op 51387[U] [App Term, 2d Dept, 9th & 10th Jud Dist 2009]).

2016We note that, on this appeal by defendant, this court may not review the propriety of the City Court’s ruling that the breath test results were inadmissible, since that ruling did not adversely affect defendant (see CPL 470.15 [1]; People v Nicholson, 26 NY3d 813 [2016]; People v Concepcion, 17 NY3d 192, 195 [2011]; People v LaFontaine, 92 NY2d 470 [1998]; People v Westbrook, 180 AD2d 772 [1992]; People v El-Khawam, 24 Misc 3d 133[A] , 2009 NY Slip Op 51387[U] [App Term, 2d Dept, 9th & 10th Jud Dist 2009]).

2024Finally, although defendant initially contended that no curative instruction could ameliorate the harm done by the introduction of such evidence, the content of the Court's curative instruction went unopposed after it was given and, therefore, this aspect of defendant's argument is unpreserved ( see People v Rizk , 146 AD3d 523, 524 [1st Dept 2017], lv denied 29 NY3d 952 [2017]; People v Ware , 28 AD3d 1124, 1125 [4th Dept 2006], lv denied 7 NY3d 852 [2006]; see also People v Hilts , 187 AD3d 1408 , 1416 n 9 [3d Dept 2020], lv denied 36 NY3d 973 [2020]).

2024Finally, although defendant initially contended that no curative instruction could ameliorate the harm done by the introduction of such evidence, the content of the Court's curative instruction went unopposed after it was given and, therefore, this aspect of defendant's argument is unpreserved ( see People v Rizk , 146 AD3d 523, 524 [1st Dept 2017], lv denied 29 NY3d 952 [2017]; People v Ware , 28 AD3d 1124, 1125 [4th Dept 2006], lv denied 7 NY3d 852 [2006]; see also People v Hilts , 187 AD3d 1408 , 1416 n 9 [3d Dept 2020], lv denied 36 NY3d 973 [2020]).

2024Further, the manner in which defendant's statement was introduced and the effect on defendant's trial strategy, considered cumulatively, establish that there was a significant probability that the error contributed to defendant's conviction ( see People v Baker , 51 AD3d 1047, 1050 [3d Dept 2008]; compare People v Velett , 205 AD3d 1143 , 1146-1147 [3d Dept 2022], lv denied 39 NY3d 988 [2022]; People v Damon , 200 AD3d [*8]1323, 1326 [3d Dept 2021]).

2024Finally, although defendant initially contended that no curative instruction could ameliorate the harm done by the introduction of such evidence, the content of the Court's curative instruction went unopposed after it was given and, therefore, this aspect of defendant's argument is unpreserved ( see People v Rizk , 146 AD3d 523, 524 [1st Dept 2017], lv denied 29 NY3d 952 [2017]; People v Ware , 28 AD3d 1124, 1125 [4th Dept 2006], lv denied 7 NY3d 852 [2006]; see also People v Hilts , 187 AD3d 1408 , 1416 n 9 [3d Dept 2020], lv denied 36 NY3d 973 [2020]).

2022Finally, "[a] trial court has discretion to vacate a judgment and order a new trial where newly discovered evidence, among other things, would likely produce a different result at a new trial, was not discovered until after trial and could not have been discovered before trial, and would not be merely impeaching or contradicting the former evidence" ( People v Mack , 301 AD2d 863, 864-865 [3d Dept 2003] [internal quotation marks and citation omitted], lv denied 100 NY2d 540 [2003]).

2017This error was not harmless, as there is a significant probability that the error might have contributed to the defendant’s convictions (see People v Johnson, 57 NY2d 969, 970 [1982]; People v Crimmins, 36 NY2d 230, 241-242 [1975]).

2017This error was not harmless, as there is a significant probability that the error might have contributed to the defendant's convictions ( see People v Johnson , 57 NY2d 969, 970 ; People v Crimmins , 36 NY2d 230, 241-242 ).

1994Establishing a proper foundation requires at a minimum a determination that the autoradiographs were of a quality susceptible to interpretation ( People v Castro , 144 Misc 2d 956, 967, 973-979 ), an inquiry that was here foreclosed by the court's erroneous determination in its Frye decision that all questions as to how a sample was tested go to weight, not admissibility.

1994Establishing a proper foundation requires at a minimum a determination that the autoradiographs were of a quality susceptible to interpretation (People v Castro, 144 Misc 2d 956, 967, 973-979 ), an inquiry that was here foreclosed by the court’s erroneous determination in its Frye decision that all questions as to how a sample was tested go to weight, not admissibility.