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A POLICE OFFICER DESCRIBED STATEMENTS MADE BY THE VICTIMS BUT THE VICTIMS DID NOT TESTIFY; ALTHOUGH DEFENSE COUNSEL MENTIONED THE LACK OF CROSS-EXAMINATION IN A SUFFICIENCY-OF-EVIDENCE ARGUMENT, THE CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES WAS NOT SPECIFICALLY RAISED; THEREFORE THE CONSTITUTIONAL ISSUE WAS NOT PRESERVED FOR APPEAL; THERE WAS AN EXTENSIVE THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming defendant’s conviction, over a three-judge dissent, determined the constitutional “confrontation” issue first raised on appeal had not been preserved. A police officer testified about the identities and physical descriptions of the assailants provided by one of the victims while she was being treated in an ambulance. The victims were expected to testify but never did:

Defendant’s motion at the close of the People’s case did not invoke the Confrontation Clause and the colloquy that took place between defense counsel and the court makes clear that the motion to dismiss was neither intended nor understood to raise a constitutional issue.  Moreover, counsel did not invoke or rely on any caselaw dealing with constitutional protections. Instead, counsel made evidentiary arguments regarding the persuasive quality of the prosecution’s proof and, when asked by the court, confirmed that the motion was limited to the sufficiency of the evidence. Further, the timing of defendant’s motion at the close of the People’s case—which defense counsel specifically referred to as “a trial order of dismissal” …—suggests that defendant’s aim was not to challenge testimony of the victim’s statements as violative of his right to confrontation, but simply as failing to meet the evidentiary bar for a prima facie case … . Additionally, counsel repeatedly told the court that his motion was “focus[ed]” on the third-degree robbery charge, demonstrating that the argument was a legal insufficiency one, rather than a Confrontation Clause challenge, which would necessarily apply to all charges with equal force. Contrary to defendant’s argument, the mere reference to a lack of cross-examination was insufficient to alert the court that defendant was making a constitutional argument … . People v Bacon, 2025 NY Slip Op 03692, CtApp 6-18-25

Practice Point: Here the violation of defendant’s constitutional right to confront the witnesses against him was a viable issue because statements made by two witness were described by a police officer but the witnesses did not testify. Although defense counsel mentioned the inability to cross-examine the witnesses in a “sufficiency-of-evidence” argument before the trial court, the constitutional confrontation argument was not specifically raised. The majority, over an extensive three-judge dissent, determined the constitutional issue was not preserved for appeal.

 

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