credibility defense in New York

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2008(See Matter of Christine M., 157 Misc 2d 4, 21 [1992].) In this regard the court noted in International Socy. for Krishna Consciousness, Inc. v Barber (650 F2d at 441): “Sincerity analysis seeks to determine the subjective good faith of an adherent . . .

2005See In Re Christina M. , 157 Misc 2d 4, 21 (Fam.

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2016The jury is presumed to have followed the court’s curative instruction, and we conclude that it was sufficient to eliminate any prejudice to defendant (see People v Carmel, 298 AD2d 928, 929 [2002], lv denied 99 NY2d 556 [2002]; People v Shaughnessy, 286 AD2d 856, 857 [2001], lv denied 97 NY2d 688 [2001]; see also People v Clemmons, 46 AD3d 1117, 1119 [2007], lv denied 10 NY3d 763 [2008]).

2016While that testimony constituted improper evidence of defendant’s pretrial silence (see People v Williams, 25 NY3d 185, 190-191 [2015]), the court struck the testimony in its final charge and specifically directed the jury not to consider it in determining the credibility of the defense witness.

2016While that testimony constituted improper evidence of defendant’s pretrial silence (see People v Williams, 25 NY3d 185, 190-191 [2015]), the court struck the testimony in its final charge and specifically directed the jury not to consider it in determining the credibility of the defense witness.

1997(See, People v Galloway, 54 NY2d 396 .) Defendant challenges various remarks made by the prosecutor during her summation, including the following: a comment implicating defendant’s failure to testify ("There is no testimony by this defendant that he was an addict or a drug user”); an implication that one defense witness was a drug user ("I submit to you, what does Dr. Fine do with these drugs once he receives them, ladies and gentlemen?”); comments demeaning the credibility of the defense and defense witnesses ("it is unbelievable that defendant is a drug user”); one witness was called "delibe

1990Although the prosecutor was overzealous and improperly vouched for the credibility of the police officers who appeared as prosecution witnesses and attacked the credibility of the defense case as a “story” which had been “made up to try to counter the truth”, we conclude that defendant was not deprived of a fair trial (see, People v Morgan, 66 NY2d 255, 259 ; People v Galloway, 54 NY2d 396 ; People v Dunn, 158 AD2d 941 ; People v Widger, 126 AD2d 962 , lv denied 69 NY2d 1011 ).

2008Under the circumstances of this case, we cannot say these errors were harmless (see People v Crimmins, 36 NY2d 230, 241 [1975]).

1990Although the prosecutor’s comments regarding the credibility of the defense witnesses, as well as her reference to the indictment, were improper (see, People v Blowe, 130 AD2d 668 ; People v Farmer, 122 AD2d 801 ; People v Ricchiuti, 93 AD2d 842 ), the improprieties were rendered harmless in view of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 242 ).

1994In any event, the prosecutor’s comments were proper comments on the credibility of the defense witness and were fair responses to the defense counsel’s summation (see, People v Ashwal, 39 NY2d 105 ; see also, People v Cheatham, 205 AD2d 794 , citing People v Aviles, 176 AD2d 584 ; People v Williams, 174 AD2d 494 ).

1991(See generally, People v Ashwal, 39 NY2d 105, 109-110 [1976]; see also, People v Rivera, 116 AD2d 371, 374 [1st Dept 1986]; People v Torriente, 131 AD2d 793, 794-795 [2d Dept 1987].) This is all the more true given that a prosecutor is an officer of the court and a representative of the People of the State of New York; thus, where as here, he makes personal attacks upon the credibility of defense counsel and interjects his own credibility and integrity into the case, referring, inter alia, to the defense theories as an "insult”, "absurd” and "desperate”, thereby suggesting that counsel was try

2024While petitioner argues that Family Court erroneously incorporated a credibility analysis in deciding the motion to dismiss, the record establishes that Family Court nevertheless sought to accept the evidence as true and gave petitioner the benefit of every reasonable inference in concluding that petitioner failed to demonstrate prima facie that respondent's actions constituted a family offense ( see Matter of Mamantov v Mamantov , 86 AD3d 540 , 541 [2d Dept 2011], lv denied 17 NY3d 715 [2011]; Matter of Janice M. v Terrance J. , 96 AD3d 482, 482 [1st Dept 2012]).

2020To the extent that a handful of the prosecutor's remarks may have exceeded the "wide latitude" extended to the prosecution in responding to the defense summation ( People v Casanova , 119 AD3d 976, 977 [2014]), "these isolated comments did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial" ( People v Harris , 162 AD3d 1240 , 1244 [2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 937 [2018]; see People v Terry , 85 AD3d 1485, 1487-1488 [2011], lv denied 17 NY3d 862 [2011]).

2020To the extent that a handful of the prosecutor's remarks may have exceeded the "wide latitude" extended to the prosecution in responding to the defense summation ( People v Casanova , 119 AD3d 976, 977 [2014]), "these isolated comments did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial" ( People v Harris , 162 AD3d 1240 , 1244 [2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 937 [2018]; see People v Terry , 85 AD3d 1485, 1487-1488 [2011], lv denied 17 NY3d 862 [2011]).

2020To the extent that a handful of the prosecutor's remarks may have exceeded the "wide latitude" extended to the prosecution in responding to the defense summation ( People v Casanova , 119 AD3d 976, 977 [2014]), "these isolated comments did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial" ( People v Harris , 162 AD3d 1240 , 1244 [2018] [internal quotation marks and citations omitted], lv denied 32 NY3d 937 [2018]; see People v Terry , 85 AD3d 1485, 1487-1488 [2011], lv denied 17 NY3d 862 [2011]).

2018As defendant correctly concedes, the invocation of the privilege could be considered by the jury only in assessing the credibility of the defense witness ( see generally People v Siegel , 87 NY2d 536, 543 [1995]).

2016According appropriate deference to that credibility determination, we find a sound and substantial basis in the record to support the conclusion that awarding the father sole custody of the child in North Carolina was in the child's best interests (see Matter of Gerber v Gerber, 133 AD3d at 1138-1139; Robert B. v Linda B., 119 AD3d 1006, 1008-1009 [2014], 2 The psychologist noted that, in assessing the credibility of such a claim, she considered reports establishing that the mother had previously contacted Child Protective Services in 2004. -5- 521680 lv denied 24 NY3d 906 [2014]; Matter of Bu

2016The mother's contention that Family Court improperly acted as an advocate during the trial is unpreserved for our review, as she made no objections to the court's actions that she now complains of, and – contrary to the mother's contention – a review of the record does not support the conclusion that the court engaged in such extreme participation as to render objections unnecessary for the purposes of preservation (see Matter of Shannon F., 121 AD3d 1595 , 1596 [2014], lv denied 24 NY3d 913 [2015]; Matter of Keaghn Y. [Heaven Z.], 84 AD3d 1478, 1479-1480 [2011]; see generally People v Charles

2016The *473 jury’s verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants’ favor. “[I]n the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (Nicastro v Park, 113 AD2d 129, 133 [2d Dept 1985]), with “particular deference” accorded to jury verdicts “in favor of defendants in tort cases” (Nicastro, 113 AD2d at 134 ; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004]).

2016The *473 jury’s verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants’ favor. “[I]n the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (Nicastro v Park, 113 AD2d 129, 133 [2d Dept 1985]), with “particular deference” accorded to jury verdicts “in favor of defendants in tort cases” (Nicastro, 113 AD2d at 134 ; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004]).

2016Thus, viewing the evidence in a neutral light, we find that the jury’s verdict was not against the weight of the evidence (see People v Oliver, 135 AD3d 1188, 1191 [2016], lv denied 27 NY3d 1003 [2016]; People v Butler, 126 AD3d at 1123 ; People v McFarland, 106 AD3d 1129 , 1130-1131 [2013], lv denied 22 NY3d 1140 [2014]).

2016According appropriate deference to that credibility determination, we find a sound and substantial basis in the record to support the conclusion that awarding the father sole custody of the child in North Carolina was in the child's best interests (see Matter of Gerber v Gerber, 133 AD3d at 1138-1139; Robert B. v Linda B., 119 AD3d 1006, 1008-1009 [2014], 2 The psychologist noted that, in assessing the credibility of such a claim, she considered reports establishing that the mother had previously contacted Child Protective Services in 2004. -5- 521680 lv denied 24 NY3d 906 [2014]; Matter of Bu

2016According appropriate deference to that credibility determination, we find a sound and substantial basis in the record to support the conclusion that awarding the father sole custody of the child in North Carolina was in the child's best interests (see Matter of Gerber v Gerber, 133 AD3d at 1138-1139; Robert B. v Linda B., 119 AD3d 1006, 1008-1009 [2014], 2 The psychologist noted that, in assessing the credibility of such a claim, she considered reports establishing that the mother had previously contacted Child Protective Services in 2004. -5- 521680 lv denied 24 NY3d 906 [2014]; Matter of Bu

2016The *473 jury’s verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants’ favor. “[I]n the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (Nicastro v Park, 113 AD2d 129, 133 [2d Dept 1985]), with “particular deference” accorded to jury verdicts “in favor of defendants in tort cases” (Nicastro, 113 AD2d at 134 ; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004]).

2016According appropriate deference to that credibility determination, we find a sound and substantial basis in the record to support the conclusion that awarding the father sole custody of the child in North Carolina was in the child's best interests (see Matter of Gerber v Gerber, 133 AD3d at 1138-1139; Robert B. v Linda B., 119 AD3d 1006, 1008-1009 [2014], 2 The psychologist noted that, in assessing the credibility of such a claim, she considered reports establishing that the mother had previously contacted Child Protective Services in 2004. -5- 521680 lv denied 24 NY3d 906 [2014]; Matter of Bu

2016The mother's contention that Family Court improperly acted as an advocate during the trial is unpreserved for our review, as she made no objections to the court's actions that she now complains of, and – contrary to the mother's contention – a review of the record does not support the conclusion that the court engaged in such extreme participation as to render objections unnecessary for the purposes of preservation (see Matter of Shannon F., 121 AD3d 1595 , 1596 [2014], lv denied 24 NY3d 913 [2015]; Matter of Keaghn Y. [Heaven Z.], 84 AD3d 1478, 1479-1480 [2011]; see generally People v Charles