Con Edison Reports on Situation as of 7: 15 P.M.

Hits: 0

WPCNR WEATHER SCOPE. From Consolidated Edison. October 29, 2012:


As of 9:50 P.M., Consolidated Edison’s Storm Map notes that 65 Outages have been reported in the White Plains city limits area, affecting approximately 12,000 persons.


WPCNR observes that winds on the backside of Hurricane Sandy have kicked in beginning to deliver more punishment to trees that are flailing in the winds, estimated by WPCNR to be close to 50 miles an hour and gusting stronger.


 Con Edison has begun the process of shutting off electrical service to a portion of Lower Manhattan, a move that will protect both company and customer equipment, and allow for quicker restoration after Hurricane Sandy passes.


The company cut service to two areas. The first is bounded by the following streets: Frankfort Street to the north; William Street to the west; Wall Street to the south; and the East River. The second area is bounded by Broadway to the west; Wall Street to the north; and the southern tip of Manhattan.


The areas include about 6,500 customers. Con Edison reported that as of 7 p.m. there were more than 156,000 customers in New York City and Westchester County without electrical service due to Hurricane Sandy.


Sea water from Hurricane Sandy’s storm surge threatened to flood the underground electrical delivery system, prompting the shutdown. The shutdown will help avoid extensive damage to company and customer equipment, and allow company crews to restore power to customers more quickly.


The company will have to wait for flood waters to recede before workers can enter some facilities to assess damage. As equipment is inspected and determined safe to energize, the highest priority for restoration will be given to critical customer facilities that have an impact on the general public such as mass transit, hospitals, police and fire stations, and sewage and water-pumping stations.


Con Edison continues to monitor underground electrical delivery equipment in other areas of Manhattan south of 36th Street, along with section of Brooklyn, Queens and the Bronx, for flooding and possible shutdowns.


Customers can report downed power lines, outages, and check service restoration status by computer or mobile device at www.conEd.com. They also can call 1-800-75-CONED (1-800-752-6633). When reporting an outage, it is helpful if customers have their Con Edison account number available, if possible, and report whether their neighbors also have lost power. Customers who report outages will be called by Con Edison with their estimated restoration times as they become available.


The company is advising its customers to pay close attention to reports from city and municipal officials. Con Edison will continue to provide updates through the media as the storm moves closer. Important information will be posted on the company’s website, www.conEd.com.


For instructions on how to report an outage, click here: http://bcove.me/6sx1yox5


 Con Edison offers the following safety tips:



  • If you see downed electrical wires, do not go near them. Treat all downed wires as if they are live. Never attempt to move or touch them with any object. Be mindful that downed wires can be hidden from view by tree limbs, leaves or water.
  • Report all downed wires to Con Edison and your local police department immediately. If a power line falls on your car while you’re in it, stay inside the vehicle and wait for emergency personnel.
  • If your power goes out, turn off all lights and appliances to prevent overloaded circuits when power is restored.
  • Check to make sure your flashlights and any battery-operated radios are working. Also, make sure you have a supply of extra batteries. Weather updates and news on power outages can be heard on most local radio and television stations.
  • Avoid opening your freezer to see if food is still frozen. Every time you open the door, room-temperature air enters and speeds the thawing process. Most fully loaded freezers will keep food frozen for approximately 36 to 48 hours; half-full freezers will keep food frozen for approximately 24 hours.

The company is in constant communication with the New York City Office of Emergency Management and the Westchester County Department of Emergency Services and company personnel are working closely with city and municipal emergency officials.



Posted in Uncategorized

Mayor: Remain in your homes. Report Electric Outages to 1-800-75-ConED

Hits: 0

WPCNR WEATHER SCOPE. OCTOBER 29, 2012: 


Mayor Thomas Roach of  White Plains in a telephone message issued 7:20 P.M., said there are many trees down throughout the city, roads are in poor condition some blocked, and he requests residents remain off the roads for the next several hours to allow crews to clear them.


He said the city is aware of the many outages throughout the city, and asked residents to please report outages to 1-800-75-ConEd, and do not phone the police.


As of 7:30 P.M., the winds of Hurricane Sandy are howling throughout the city, swaying and bending trees and surface gusts are very dangerous, blowing debris.


The Mayor’s message urges residents to remain in their homes and off the streeets to allow city crews to do their work to clear streets.

Posted in Uncategorized

County Storm Update from the County Executive

Hits: 0

 WPCNR WEATHER SCOOP. From the Westchester County Department of  Communications. October 28, 2012:


In response to the expected arrival of Hurricane Sandy, Westchester County Executive Robert P. Astorino Sunday took a number of actions to safeguard the public in the days ahead, including suspending Bee-Line bus service as of 9 p.m. Sunday evening.


Astorino’s order suspends all Bee-Line and Para-Transit service until further notice. The county executive also ordered that:


· All Westchester County Parks close as of tonight and remain closed on Monday and Tuesday. This includes the County Center in White Plains and the Playland Ice Casino in Rye.


 


· The county-owned Bronx River Parkway will be closed beginning at 6 a.m. on Monday. Other parkways in Westchester are under the jurisdiction of New York State.


“During Hurricane Irene, early closures of these parkways turned out to be one of the best decisions we made to protect the public,” Astorino said. “I have ordered the closure of the entire length of the Bronx River Parkway and all other parkways are subject to closure at any time.”


The Westchester County Airport remains open, however virtually all flights have been canceled for Monday and Tuesday. Travelers should keep in touch with their airlines for updated information.


Astorino said the county has been in close contact with all Westchester municipalities throughout the weekend. A series of conference calls was held to share information and receive requests for assistance.


In communities along the Long Island Sound, Westchester has provided 2,000 sandbags, Astorino said. In addition, another 3,000 sandbags were provided to Yonkers and 1,000 to Cortlandt. In Lewisboro, the county provided Variable Message Signs and Mount Kisco was provided with a generator.


Astorino noted that municipal officials in Mamaroneck and Rye had recommended that people in flood-prone areas leave tonight. Shelters in those communities and several others were being opened tonight.


“Let me reiterate that this is a very powerful storm and I urge residents to take all necessary precautions and stay inside. People should have several days of water, food and other emergency supplies on hand in the event of extended power outages,” he said.

Posted in Uncategorized

City Issues Local Instructions on How to Deal with Hurricane Sandy Conditions

Hits: 0

WPCNR WEATHER SCOOP. From White Plains City Hall. October 28, 2012:


The City of White Plains has begun to take preventive actions designed to decrease the potential for and severity of flooding. This includes cleaning out storm drains and catch basins.


Residents are being asked to assist in this effort by not piling leaves in or near the street. Leaves will likely clog vital storm drains in adverse weather, which may lead to flooding.

* ConEd customers can report downed power lines, outages, and check service restoration status by computer or mobile device at
www.conEd.com.

* City of White Plains STORM HOTLINE Information (914)422-5150, Spanish Speaking (914)422-5160.


WHITE PLAINS CITY SCHOOL DISTRICT SCHOOLS WILL BE CLOSED ON MONDAY, OCTOBER 29.


CITY PARKS WILL BE CLOSED 6PM ON SUNDAY THROUGH WEDNESDAY MORNING.

CITY RESIDENTS MAY PARK VEHICLES IN TWO CITY GARAGES WITHOUT CHARGE OVERNIGHT FROM SUNDAY EVENING AT 4PM UNTIL WEDNESDAY MORNING OCT. 31ST, AT 8 AM IN EITHER THE HAMILTON-MAIN OR CHESTER-MAPLE GARAGES. ALL OTHER GARAGES, PARKING LOTS AND ON-STREET PARKING WILL BE UNDER NORMAL ENFORCEMENT RULES.

REPORT BLOCKED STORM DRAINS TO PUBLIC WORKS 422-1333.

CONTACT THE POLICE DEPARTMENT AT 422-6111 FOR STORM RELATED NON-LIFE THREATENING SITUATIONS. CALL 911 FOR TRUE LIFE-THREATENING EMERGENCIES.

AS THE STORM INTENSIFIES PLEASE STAY HOME FOR YOUR SAFETY AND THAT OF OUR FIRST RESPONDERS.

Posted in Uncategorized

U.S. Attorney: Westchester Medical Center Agrees to $7 Million Settlement for 9

Hits: 0




WPCNR WHITE PLAINS LAW JOURNAL. From the U.S. Attorney, Southern District of New York. Thursday, October 25, 2012:

 

Preet Bharara, the United States Attorney for the Southern District of New York, announced Wednesday that the United States has filed and simultaneously settled a civil fraud lawsuit against the WESTCHESTER COUNTY HEALTH CARE CORPORATION, doing business as the Westchester Medical Center (“WMC”) for submitting false reimbursement claims to Medicaid, a joint federal and state program that provides financial assistance to individuals with low incomes for medical care. ‘

The Government’s Complaint alleges that WMC billed Medicaid for millions of dollars of outpatient services at its mental health center that lacked the core documentation required by Medicaid regulations. The settlement, approved Wednesday in Manhattan federal court by U.S. District Judge Colleen McMahon, requires WMC to pay $7 million in civil damages under the False Claims Act.


Manhattan U.S. Attorney Preet Bharara stated: “Medicaid is a vital resource for people who suffer from physical and mental illnesses and related conditions. We have absolutely no tolerance for those who fail to comply with the program, particularly in these lean times when budgets are stretched thin and belts are being tightened. We will continue to work with our federal and state partners to protect the Medicaid program against waste, fraud and abuse.”


According to the Complaint filed Wednesday in Manhattan federal court, here are the details of what the Medical Center did:


 


WMC, a public hospital located in Valhalla, New York, is home to one of the largest public mental health facilities in the County, the Behavioral Health Center (the “BHC”). The BHC operates as a hospital-based mental health and hygiene provider licensed by the New York State Office of Mental Health (“OMH”) and the New York State Department of Health (“DOH”).


The BHC also provides outpatient behavioral health services to children, adolescents and adults who are mentally ill or suffer from psychiatric or emotional conditions.


Medicaid, which reimburses providers for the cost of care for its recipients, paid millions of dollars in reimbursement for claims submitted by WMC for these mental health services. As such, it must comply with Medicaid regulations. Those regulations expressly require that mental health outpatient clinics maintain certain documents, including progress notes and treatment plans, to ensure that billed services are actually provided, and that the providers are in compliance with the regulations.


From August 2001 through June 2010, WMC repeatedly billed Medicaid for outpatient mental health services without having the core documentation required by the Medicaid regulations in order to bill for those services.


Further, WMC management knew for years that the outpatient mental health clinics were missing documentation.


Until at least June 2010, WMC failed to take any but the most insignificant steps to address the problem, or to conduct any systematic audit of the clinics’ records.


WMC also did not return funds it received from the Medicaid program despite knowing it had been substantially overpaid as a result of having billed for services for which it lacked proper documentation. As a result of this billing fraud, WMC was paid millions of dollars by the Medicaid program to which it was not entitled.


Under Medicaid, the federal and state governments share the costs of care for its recipients. Accordingly, WMC is also entering into a settlement agreement today with New York State that provides for the payment from WMC to the state of its share of the Medicaid funds.


*                      *                      *


The case is being handled by the Office’s Civil Frauds Unit. Mr. Bharara established theCivil Frauds Unit in March 2010 to bring renewed focus and additional resources to combating financial fraud.


The Civil Frauds Unit works in coordination with President Barack Obama’s Financial Fraud Enforcement Task Force, on which Mr. Bharara serves as a Co-Chair of the Securities and Commodities Fraud Working Group. President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.


Mr. Bharara praised the audit work of the New York State Office of the Medicaid Inspector General that was instrumental to the federal investigation.


This case is being handled by the Office’s Civil Frauds Unit. Assistant U.S. Attorneys Heidi A. Wendel and Mara E. Trager are in charge of the case.

Posted in Uncategorized

Voters Pass $48.3 Million Bond Issue by 3 to 1. 1,025 Turnout

Hits: 0

WPCNR SCHOOL DAYS. By John F. Bailey. October 23, 2012: 


The six  school district polling places in White Plains closed at 9 P.M. tonight.


Unofficial vote tallies, including absentee ballots tabulated at White Plains Education House show the $48.3 Million bond issue to reroof and refurbish Eastview Middle School for $22 Million (the improvements will condition the school to last another 30 years, Board of Education Member Peter Bassano said), “Wi-Fi” all White Plains schools for $4.2 Million and finish improvements to the 7 other schools for an additional $22 Million has passed.


The results showed 755 voting yes and 270 against in the total registered voter turnout of 1,025.


Dr. Christopher Clouet told WPCNR, “I’m very happy with the result. I’m pleased voters came out and  supported it by a 3 to 1 margin,  showing that our schools are a big part of our city, and that they appreciate our older school buildings and want to keep them a part of city.”


Fred Seiler, Assistant Superintendent for Business, told WPCNR, that the first part of the project would be to bring  H2M of White Plains, in as architect on the Eastview Middle School roof project first, in order to get plans in to the State Education Department by  December 31, in hopes of getting approval in the spring. He said the gutting of the roof was expected to begin in June or July.  Bond Anticipation Notes would be issued to start financing the project, with the major borrowing taking place in June, Seiler said.


Six years ago almost to the day,October 19,  the White Plains voters passed the second $69.6 Million in its current effort to improve the school buildings since the high school was improved from 2000 to 2003 with a $28 Million bond issue. That $69.6 Million referendum built a new Post Road School and undertook the first wave of school improvements across the district under the Timothy Connors Superintendency, by a much closer vote, 1050 to 934, almost double today’s turnout of voters.


In 2000, the White Plains School District passed a $28 Million bond to refurbish White Plains High School. It has borrowed $142 Million to upgrade the district buildings in the last 12 years.



 

Posted in Uncategorized

Strong Third Quarter for White Plains Single Family Homes.

Hits: 0

WPCNR QUILL & EYESHADE. October 18, 2012:

 

White Plains Single Family Home Closings for the third quarter of 2012 were up sharply — 41% more than the third quarter of 2011, and up 140% over the 2nd quarter of this year.

 

In July, August, and September, 72 homes sold compared to 51 in the same time period last year, according to Mike Graessle of the Better Homes and Gardens/ Rand Realty agency in White Plains.

 


The median selling price of a single family White Plains home closing in the third quarter was $637,125, up 9% from $585,000 a year ago– the average selling price $693,634 up 12%. Single Family homes closing in the third quarter stayed on the market about 6 months before selling.


 

Condominium sales were down 8% from last year’s third quarter, and down 34% from the second quarter of this year. The average selling price was down 35% to $388,873 compared to $592,844 in last year’s third quarter.

 


Co-ops faired better, sales up 16% from last year and 19% from the 2nd quarter of 2012. Co-op sale rices were up slightly, averaging $189,051, compared to $184,676 in the same quarter last year. The median sales price was down 6% to $168,500.

Posted in Uncategorized

Hudson Valley Employment Up 1% Year-to-Year. Education/Health Major Fields

Hits: 0

WPCNR LABOR WIRE. From the New York State Department of Labor. October 18, 2012:

 

For the 12-month period ending in September 2012, private sector employment in the Hudson Valley Region increased 7,000 or 0.9 percent. Employment gains were strongest in educational and health services (+6,300), followed by professional and business services (+2,800), trade, transportation and utilities (+2,500), financial activities (+1,200), and other services (+600).

 

Job losses were centered in the following industries: natural resources, mining and construction (-4,100), manufacturing (-1,800), and information (-600). The government sector shed 1,600 jobs over the year.

 

In September, the Putnam-Rockland-Westchester labor market area was the driving force behind total job growth in the region’s private sector. The lower Hudson valley area’s private sector employment grew by1.3 percent or 6,100 jobs, accounting for almost 90 percent of total jobs gained in the region. 

 

Overall, educational and health services, the region’s largest private sector employer has continued to perform well, expanding over the period by 3.4 percent or 6,300 jobs; its largest over the year increase since 1999. Meanwhile the region’s manufacturing sector recorded its largest over the year decline in nearly 2 ½ years, shedding 1,800 jobs or 3.7 percent of its workforce.

 

 

Posted in Uncategorized

County 2013 Outlook Bleak–Layoffs Possible if No Labor Concessions.

Hits: 0

WPCNR COUNTY CLARION-LEDGER. From the Westchester County Department of  Communications.(EDITED) October 18, 2012:


 


A month before the release of his proposed 2013 budget, County Executive Robert P. Astorino today reaffirmed his pledge not to raise county property taxes or raid the county’s reserve fund next year and appealed to the county’s employee unions to help him minimize layoffs by agreeing to contribute to the cost of their health care.


 


“Here is the stark reality: Our revenues do not keep pace with automatic spending increases,” Astorino said at a news conference where he described the challenges of balancing a budget that, without spending cuts, would have an $86 million hole next year due mainly to state-mandated costs that will go up automatically on Jan. 1. “The job before us is to figure out a responsible way to maintain services at a cost affordable to taxpayers.”


Astorino must submit his proposed 2013 budget to the Board of Legislators by Nov. 15. The board then has until Dec. 27 to adopt a final spending plan. Under county law, the budget must be balanced.


 


The Westchester Business Council issued a statement supporting the County Executive’s policy, saying:


 


“The Business Council of Westchester strongly supports County Executive Astorino’s call for serious and, if necessary, round the clock negotiations with the county’s largest unions. As today’s budget preview clearly demonstrates,county government is facing its own fiscal cliff. Failure to address the issues at hand jeopardizes the fragile economic recovery under way in Westchester. Fiscal uncertainty is not conducive to business stability and growth. It also sends the wrong message to businesses we need to attract to Westchester. We can ill afford to see our business base erode.


 


The time is clearly at hand to address headon the rapidly escalating cost of union healthcare benefits. Employees in the private sector have had to make sacrifices by contributing more to their health care benefits. It’s time for the county’s unions to make the concessions necessary to preserve their jobs and the fiscal health of the county. Raising taxes is not an option.


 


We support the County Executive’s fiscally responsible approach and his call to the largest unions to work with him.  Further, we urge the County Board of Legislators to adopt a balanced budget for 2013 with no fiscal gimmicks that would risk the County losing its AAA bond rating.”


           


 


Since taking office, Astorino has cut county spending by $100 million and the county property tax levy has been reduced by 2 percent.


            Plugging the $86 million shortfall could require as many as 800 layoffs, or a 16 percent reduction in the workforce. Astorino said such a number is unacceptable and he would propose some measures to bring it down. However, he said he would need help from the unions as well.  


            As he has done repeatedly, he urged the Civil Service Employees Association (CSEA), the Police Benevolent Association (PBA)  and the three other county unions (the Superior Officers of the PBA, the New York State Nurses Association and the District Attorney’s Investigators PBA) currently without contracts  to agree to his “jobs for savings” plan, where they pay a portion of their health care costs as a way to save jobs.


 



     


            Health care for employees cost the county about $120 million this year and is projected to increase to $125 million in 2013. Three other county unions have, through collective bargaining, already agreed to contribute to their health care: Teamsters Local 456, which represents middle-level management; the Correction Officers Benevolent Association (COBA); and the Corrections Superior Officers Association (SOA). Also, non-union managers at the county, including Astorino and his staff, have been paying for health care since Astorino instituted the reform shortly after taking office.


            Astorino said that the county and representatives of the CSEA – the county’s largest union with approximately 3,300  members –  will be meeting with a state mediator next week to try to resolve the contract. The CSEA’s last contract expired Dec. 31, 2011, and because of the state’s Triborough Amendment remains in effect until new terms are negotiated and ratified.  


             “I urge them to use all available resources and efforts to reach an agreement that preserves jobs and  services,” he said. “Layoffs hurt everybody. Health care contributions can provide significant savings, which can greatly reduce the number of layoffs we are facing.”


            County Legislator and Republican Minority Leader Jim Maisano of New Rochelle, speaking on behalf of his caucus, said: “It is the best interests of everyone in Westchester County that our unions settle contracts with health care contributions before a budget is submitted next month.” 


            In preparing his proposed budget for 2013, Astorino said that he was following the same approach that was adopted on a bipartisan basis with the Board of Legislators for the current budget:  No increase in the county property tax levy and no use of the unrestricted reserve fund.


            “Taxes are off the table,” he said. “We are already the highest taxed county in the country. Raiding the reserve fund is a non-starter because that would jeopardize our triple A credit ratings. If we are downgraded , our borrowing costs go up and running county government becomes more expensive. Our focus is on preserving the most essential services and bringing down costs to pay for them.”


            In addition to layoffs, Astorino said there were other options available to partially address the $86 million shortfall, but none of them are ideal. These include:


·        Departmental cuts –  Every department is looking at ways to reduce spending, but this inevitably means some service cuts.


·         Borrowing – The county can borrow to pay for pensions and tax certioraris (court-ordered property tax refunds), but the money has to be paid back with interest.


 


·        Discretionary spending – Also under review is the money the county spends to fund outside non-profit cultural and social agencies, such as libraries, museums and after-school programs.


            “The job is to determine – in an objective way – what are the most essential services and what are the smartest and least painful ways to pay for them,” Astorino said.  


            Driving the costs for next year are a variety of programs with automatic increases that will take place Jan. 1. These include:


·        The county’s share of Medicaid –  the federal and state mandated program to provide health care for the poor – will go up $8 million (to $224 million).


·        Employee pension costs would go up $12 million (to $91 million). This is a state mandate.


·        Employee health care would go up $5 million.


            These increases will not be offset by new or rising revenues. The county’s portion of the sales tax is projected to generate about 3 percent more next year  – but not a sufficient amount to offset the mandated costs in spending. State and federal aid is expected to be down slightly.


            Money raised from the county property tax will remain the same at $548 million, based on Astorino’s continued pledge that he will not raise the county property tax levy.


 


STATUS OF 2012 BUDGET


            In his review, Astorino also discussed the county’s current budget of $1.697 billion. With three months to go, Astorino said the county has a $15 million shortfall, which is less than 1 percent of the total budget.


            To close the gap by the end of the year, Astorino said he will limit any new hires, defer some spending and liquidate some departmental accounts that have surpluses at the end of the year.


            “There is work to do,” he said, “but I am confident that we can end the year with a balanced budget and that means a balanced budget without drawing down reserves.”


 

Posted in Uncategorized

Decision Reversing Bradley Conviction Centers on Judge’s Exclusion of Witnesses

Hits: 0

WPCNR WHITE PLAINS LAW JOURNAL FOR THE RECORD. October 18, 2012:


The decision of  Appellate Judges Ruth C. Balkin, Ariel E. Belen, L. Priscilla Hall and Robert J.Miller reversing the conviction of former Mayor Adam Bradley of White Plains, for attempted assault 3rd degree, harassment, 2nd degree,2 counts and criminal contempt, 2nd degree in a domestic dispute involving his wife– by a 3 to 1 decision issued Wednesday concludes that


“Upon reviewing the record here, we are statisfied that the verdict of guilt was not against the weight of the evidence. However, given the circumstances of this case, we conclude that the defendant was deprived of a fair trial.”


“…we conclude that the Supreme Court improperly precluded the defendent from adducing testimony which showed that his wife told others that the bedroom door was accidentally closed on her hand. The proffered testimony was in ‘substantial contradiction’ to his (Bradley’s) wife’s testimony that the defendent intentionally slammed the door on her hand and that she never told anyone that her hand had been caught in the bedroom door accidentally, and it was, therefore, sufficiently inconsistent to be relevant to the issue of the wife’s credibility. Furthermore, testimony as to whether the defendant’s wife told others that the bedroom door was accidentally closed on her hand was not related to a collateral matter at all, but rather, it went directly to the heart of the most contested aspect of the case — the defendant’s (Bradley’s) intent. Under the circumstances present here, the preclusion of such material and exculpatory evidence deprived the defendant of a fair trial. Accordingly, the judgments must be reversed and the matters remitted to thr Supreme Court, Westchester County, for a new trial.”


Presiding Judge Ruth Balkin dissented, writing, “The foundation necessary for impeachment of a witness by prior inconsistent statements on a material issue is straightforward and long settled. The impeaching party must first ask the witness if he or she made the prior statement. A general question about prior statements is not sufficient; the witness’s attention must be directed to the time and place of the prior statement, the person to whom it was made and the substance of it…If the witness denies or claims not to remember, having made the prior statement, the impeaching party may then present extrinsic evidence of it.”


“In this case, the defendant’s claim pertains to prior statements the complainant allegedly had made to three people, two civilians and a detective. On cross-examination, defense counsel asked the complainant whether she had ever told “anyone” that the incident on February 28th (2010) was an accident or whether she was not sure how it happened or was confused about what had happened. Defense counsel failed to specify the dates the complainant was alleged to have made these prior statements or to whom they were made. Thus the foundation for extrinsic evidence of the alleged prior inconsistent statements was inadequate. Therefore, contrary to the holding of my colleagues, the trial court did not err in precluding the defendant from eliciting, as (witness) impeachment evidence, testimony from the two civilians and the detective about the complainant’s alleged prior inconsistent statements.”


Judge Balkin’s written dissent also observed,


 “My colleagues hold that the evidence was admissable not only as impeachment of the complainant, but also as affirmative evidence that the defendant did not act intentionally. In other words, although the proffered evidence was admittedly hearsay, my colleagues hold that the defendant’s right to present a defense overrode the rules of evidence. I disagree. It is true in some circumstances the right to present a defense will override the hearsay rule. But those circumstances are rare, as examination of the cases cited by the majority makes clear; most of the reversals concerned erroneous exclusion of reliable hearsay evidence that another person had admitted committing the crime for which the defendant was on trial.(cites cases) None involved the situation presented here, that of a complaining witness who allegedly made prior statements inconsistent with material parts of her trial testimony. In this common situation, settled rules allow defendanyts to present extrinsic impeachment evidence after laying a proper foundation. But that extrinsic evidence is admissable so that the jury can properly evaluate the impeached witness’s trial testimony; it is not “proof of what happened.”  Fundamental as it is, the right to present a defense “does not give criminal defendants carte blanche to circumvent the rules of evidence.” (cites cases.)


The entire decision may be reviewed at www.nycourts.gov/reporter/3dseries/2012/2012_06971.htm

Posted in Uncategorized