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POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s gang-related convictions, determined that the two police officers (Georg and Bracero) certified as experts in gang culture served as conduits for inadmissible testimonial hearsay and acted as summation witnesses usurping the jury’s role of interpreting the evidence:

As a threshold matter, we note that Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted (see Crawford v Washington, 541 US at 60 n 9…). Thus, “it is permissible for an expert witness to form an opinion by applying [his or] her expertise to otherwise inadmissible evidence because, in that limited instance, the evidence is not being presented for the truth of the matter asserted” … .

Here … information derived from the debriefing of arrested S.N.O.W. Gang members constitutes testimonial statements within the meaning of Crawford … . The more difficult question presented is whether the substance of such statements was impermissibly conveyed to the jury by Georg and/or Bracero in the guise of expert testimony … . We find that it was. …

Separate and apart from the Crawford errors, Georg’s testimony also ran afoul of the proscription against police experts acting as summation witnesses, straying from their proper function of aiding the jury in its factinding, and instead ” instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense'” (People v Inoa, 25 NY3d 466, 475, quoting United States v Mejia, 545 F3d at 191). During the trial, Georg read Facebook posts verbatim to the jury, offered commentary about the time of each post in relation to key events in the case, and connected evidence of the parties exchanging their phone numbers with records confirming that a call was subsequently placed. The defendant’s counsel correctly objected to such testimony, citing Mejia and Inoa, on the ground that Georg was no longer acting as an expert witness but was usurping the jury’s function by interpreting, summarizing, and marshaling the evidence. Unlike the Crawford violation, this type of error is nonconstitutional in nature … . People v Jones, 2018 NY Slip Op 07752, Second Dept 11-14-18

CRIMINAL LAW (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/HEARSAY (CRIMINAL LAW, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/TESTIMONIAL HEARSAY ( POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/CRAWFORD EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/EXPERT OPINION (CRIMINAL LAW, GANGS, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/GANGS  (EVIDENCE, TESTIMONIAL HEARSAY, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))/SUMMATION WITNESS (CRIMINAL LAW, EVIDENCE, TESTIMONIAL HEARSAY, EXPERT OPINION, POLICE OFFICERS CERTIFIED AS GANG EXPERTS PRESENTED INADMISSIBLE TESTIMONIAL HEARSAY IN THE GUISE OF EXPERT OPINION, ONE OF THE OFFICERS ACTED AS A SUMMATION WITNESS USURPING THE JURY’S FUNCTION OF INTERPRETING THE EVIDENCE, CONVICTIONS REVERSED (SECOND DEPT))

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