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ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE.

The Third Department determined an order precluding a party from introducing evidence at trial was appealable in this case. However, under the facts, the order was properly granted. With respect to the appealability of the motion in limine, the court wrote:

As a threshold matter, an order ruling on a motion in limine is generally not appealable as of right or by permission “since an order[] made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling” … . “However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . The order appealed from here, rather than “merely limit[ing] the production of certain evidence as immaterial to damages,” restricted plaintiffs' ability to prove and recover damages … and it is, therefore, appealable … . Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 2016 NY Slip Op 03772, 3rd Dept 5-12-16

APPEALS (ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/EVIDENCE (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)/IN LIMINE, MOTION (APPEALS, ORDER LIMITING TRIAL EVIDENCE WAS APPEALABLE)

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COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVISION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissenting opinion, determined the trial judge's failure follow the protocol for Batson challenges to the prosecutor's removal of African-American males from the jury required reversal. Although the issues were preserved, the court noted it had the power to exercise interest of justice jurisdiction over Batson issues. The court further held a combined racial/gender bias is the proper subject of a Batson challenge:

The wholesale exclusion of black men from the jury gives rise to a mandatory inference of discrimination at the first step of the Batson inquiry … . The prosecutor used peremptory strikes to eliminate black male jurors while not excluding others who expressed skepticism about the credibility of police officers, such as the woman on the first panel who stated that “sometimes the police [were] not [doing their job],” and “could be forceful . . . if . . . threatened,” and the woman on the second panel who said she'd “seen things go both ways” with the police. * * *

The court failed to follow the three-step Batson protocol. Although the prosecutor furnished some explanations for the strikes, he gave them only as to Hewitt and Prosser, not Lortey. Even if those explanations were accepted as facially neutral, the court was obliged to continue on to step three and afford defense counsel the opportunity to show that the prosecutor's stated reasons for the strikes were pretextual. Defense counsel was never given the opportunity to argue that the prosecutor's explanations were a pretext for discrimination. The court improperly combined steps and deviated from the Batson protocol, which cannot be considered harmless or nonprejudicial to defendant … . People v Watson, 2016 NY Slip Op 03688, 1st Dept 5-10-16

CRIMINAL LAW (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/APPEALS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/JURORS (CRIMINAL LAW, COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)/BATSON CHALLENGES (COMBINED RACIAL-GENDER BIAS IS A PROPER SUBJECT OF A BATSON CHALLENGE TO THE REMOVAL OF A JUROR; APPELLATE DIVSION HAS INTEREST OF JUSTICE JURISDICTION TO REVIEW BATSON ERRORS)

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APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a partial dissent, determined appeals as of right, irrespective of the issues raised, should not be dismissed because the appellant has been deported. Permissive appeals, such as an appeal of the denial of a motion to vacate a conviction, are, however, subject to discretionary dismissal because the appellant has been deported:

… [W]e conclude that this Court’s holding in Ventura [17 NY3d 675] prohibits an intermediate appellate court from exercising its discretion to dismiss a pending direct appeal on the ground that the defendant has been involuntarily deported, regardless of the appellate contentions raised by the defendant. …

We reach a different conclusion with respect to [a] pending permissive appeal. Our holding in Ventura was based upon a criminal defendant’s fundamental right to a direct appeal granted by CPL 450.10. That statute has no application, however, in the context of permissive appeals. Rather, CPL 450.15 governs an appeal from an order denying a CPL 440.10 motion to vacate a judgment, and provides that a certificate granting leave to appeal must be obtained pursuant to CPL 460.15 (see CPL 450.15 [1]). In Ventura, this Court spoke of a criminal defendant’s “absolute right,” “statutory right,” “fundamental right,” and “basic entitlement” to appellate consideration of a direct appeal … . A defendant has no such fundamental right or basic entitlement to appeal where the defendant must seek permission to appeal to the intermediate appellate court pursuant to CPL 450.15. …

Where an intermediate appellate court has permissive jurisdiction over a pending appeal, the intermediate appellate court retains its discretion to dismiss the pending permissive appeal due to the defendant’s involuntary deportation. People v Harrison, 2016 NY Slip Op 03547, CtApp 5-5-16

CRIMINAL LAW (APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/APPEALS (CRIMINAL, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/IMMIGRATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)/DEPORTATION (CRIMINAL LAW, APPEALS AS OF RIGHT MAY NOT BE DISMISSED BASED UPON THE DEPORTATION OF APPELLANT; PERMISSIVE APPEALS, HOWEVER, ARE SUBJECT TO DISCRETIONARY DISMISSAL ON THAT GROUND)

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PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD.

The Court of Appeals noted that its review of whether there was probable cause for arrest, a mixed question of fact and law, is limited to whether there is support for a probable-cause finding in the record. Here the police were conducting surveillance on a target drug dealer. The police observed defendant take a bag from the target’s car, which was deemed sufficient to provide probable cause to arrest:

After a Darden hearing … , Supreme Court found that the confidential information had given the police “cause to believe” that the surveillance target was engaged in “drug activity.” Insofar as a Darden hearing is held to ensure “that the confidential informant both exists and gave the police information sufficient to establish probable cause” … , it may be inferred from the Darden hearing court’s ruling, which was adopted by the suppression court for the purpose of determining probable cause, that the confidential information was not stale by the time of defendant’s arrest.

Furthermore, the officer’s justified belief that the surveillance target was trafficking in narcotics, together with the manner in which the bag was removed from the car, support the lower courts’ conclusion that the police had probable cause to arrest defendant for criminal possession of a controlled substance. Record support for probable cause may be found on the basis of “indicia of a drug transaction” known to “an experienced officer . . . trained in the investigation and detection of narcotics,” which include “handl[ing] [an] unidentified object in a manner typical of a drug sale” … . People v Joseph, 2016 NY Slip Op 03416, CtApp 5-3-16

CRIMINAL LAW (PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD, REVIEW BY COURT OF APPEALS)/APPEALS (COURT OF APPEALS REVIEW, CRIMINAL LAW, PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD)

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DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT OFFICER AND JURORS BY ASKING THAT DELIBERATIONS CONTINUE DESPITE THE CONVERSATION; THE CONVERSATION DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR.

The Second Department determined the defense waived objection to a court officer's conversation with three jurors during deliberations. Defense counsel asked that the jurors be questioned about their ability to continue and, after the questioning, asked that the jury continue to deliberate. The Second Department further held the communication by the court officer did not constitute a mode of proceedings error which need not be preserved. The decision includes a clear explanation of the types of issues which can be raised in a Criminal Procedure Law (CPL) 330.30 motion to set aside the verdict and the distinction between waiver and preservation:

Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see CPL 310.10[1]…). In considering a motion to set aside a verdict pursuant to CPL 330.30(1), however, a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are preserved for appellate review … .

Waiver and preservation are separate concepts … , although they are often “inextricably intertwined” … . Waiver connotes the intentional relinquishment or abandonment of a known right … . Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error … . People v Armstrong, 2016 NY Slip Op 02843, 2nd Dept 4-13-16


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CHALLENGE TO THE JURY INSTRUCTION ON CAUSATION OF DEATH IS SUBJECT TO THE PRESERVATION REQUIREMENT; DEFENDANT’S FAILURE TO OBJECT PRECLUDES REVIEW; STRONG DISSENT ARGUED THE JURY INSTRUCTION IS REVIEWABLE BECAUSE IT RELIEVED THE PEOPLE OF THEIR BURDEN OF PROOF.

The First Department, over an extensive dissent, determined defendant's appellate challenge to the jury instruction on causation of death was subject to the preservation requirement. The victim was assaulted by the defendant and died later at the hospital. The defense presented an expert who testified the victim was improving until he fell in the hospital. The cause of death, according to the defense expert, was the hospital's negligence in treating the victim after the fall. The defendant did not object to the causation jury instruction. The dissent would have reversed, either finding the preservation requirement did not apply because the jury instruction relieved the People of their burden of proof, or in the interest of justice:

Defendant failed to raise any challenge to the court's charge regarding causation of death at a time when the court could have easily rephrased the instruction. The issue is therefore unpreserved for appellate review (see CPL 470.05[2]). The claimed error does not fall within the “very narrow exception” discussed in People v Thomas (50 NY2d 467, 471 [1980]), as the dissent suggests. That narrow exception is only applicable “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute” (id.). Here, as was the case in Thomas, preservation was necessary because defendant essentially claims that “a portion of the charge could, in the particular case, be interpreted as having a contrary effect” to the burden of proof charge that was correctly stated by the court (id. at 472). Nor is the exercise of interest of justice jurisdiction warranted; defendant was not deprived of a fair trial (see CPL 470.15[6] [a]). As an alternative holding, we consider the charge, viewed as a whole, to have properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim's death … . People v Castillo, 2016 NY Slip Op 02709, 1st Dept 4-7-16


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THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a three-judge concurring opinion, determined defendant was not deprived of a fair trial by the trial judge’s failure to take any action when defense counsel informed him family members were wearing T-shirts remembering the murder victim. The Court of Appeals found the trial judge’s failure to act was error. But, under the facts, the error did not deprive defendant of a fair trial. The fact that the trial judge noticed family members had worn the T-shirts before the day when defense counsel objected did not bring up those prior occurrences on appeal. Defense counsel did not elicit a ruling from the trial judge (by moving for a mistrial) based on the pror occurrences, therefore only the wearing of the T-shirts on the day counsel objected was before the court:

We conclude … that although spectator displays depicting a deceased victim should be prohibited in the courtroom during trial, and although the trial court here erred in refusing to intervene upon defense counsel’s request, the error is subject to harmless error analysis. Defendant contends that the deprivation of his right to a fair trial can never be considered harmless. We agree only insofar as there can be no harmless error analysis if an appellate court concludes that spectator misconduct was so egregious and the trial court’s response so inadequate that the defendant was deprived of a fair trial. Where “there has been such error of a trial court . . . or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial,” without regard to whether the proof of guilt was overwhelming or whether “the errors contributed to the defendant’s conviction”… . Here, however, the spectator conduct was not so egregious that defendant was deprived of a fair trial.

A per se rule of reversal is inappropriate in the context of spectator displays of a deceased victim’s image because such displays may vary widely. For example, the display could range from a small button worn on a spectator’s clothing to a life-size image. A trial court’s refusal to intervene in every such display upon defense counsel’s objection is error. However, not every such display requires the drastic remedy of a mistrial, or an appellate reversal. The trial court or the appellate court, respectively, must make that determination based on the unique circumstances of each case.

Under the particular circumstances of this case, we conclude that the trial court’s error in failing to instruct the spectators to remove or cover the shirts upon defense counsel’s objection is harmless. Consequently, defendant was not deprived of a fair trial. People v Nelson, 2016 NY Slip Op 02554, CtApp 4-5-16

CRIMINAL LAW (THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/SPECTATOR DISPLAYS (CRIMINAL LAW, THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/APPEALS (PRESERATION OF ERROR, CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)/PRESERVATION OF ERROR (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)

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THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a two-judge dissenting opinion, reversing the Appellate Division, determined defendant’s failure to preserve his challenge to the validity of his guilty plea precluded review in the Court of Appeals. The matter was remitted to the Appellate Division which could entertain the appeal under its interest of justice jurisdiction. The opinion attempts to clarify when a defendant “lacks a reasonable opportunity to object to a fundamental defect in the plea” such that the preservation requirement does not apply. Here the sentencing court made an initial mistake indicating defendant’s sentence would be three years, where the minimum sentence was six years. Defendant argued that his guilty plea was induced by the judge’s mistake. The Court of Appeals found there were many subsequent opportunities to discover the mistake and preserve the error. The defendant violated the terms of his release pending sentencing, an Outley hearing was held, and a six-year sentence, described as an “enhanced sentence,” was ultimately imposed:

… [T]he defense had multiple opportunities to preserve defendant’s current challenge to his plea and seek clarification of the matter, as such opportunities arose from, inter alia: the court’s comment at the plea proceeding about its uncertainty of the legality of the promised sentencing options; the court’s statements at the plea proceeding about the determinative nature of defendant’s predicate felony offender status; the numerous adjournments, the Outley hearing and the post-hearing court appearance that transpired between the plea and sentencing proceedings, which could have allowed counsel and defendant to inquire further into the legality of the promised sentencing options and defendant’s understanding of the plea; and the court’s comments at sentencing, which offered an opening for counsel to confirm the legality of the court’s sentencing options and its effect on the validity of the plea. By failing to seize upon these opportunities to object or seek additional pertinent information, defense counsel failed to preserve defendant’s claim for appellate review … . People v Williams, 2016 NY Slip Op 02551, CtApp 4-5-16

CRIMINAL LAW (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/APPEALS (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/PLEA BARGAIN (PRESERVATION OF ERROR, THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)/PRESERVATION OF ERROR (THE DEFENSE HAD SEVERAL OPPORTUNITIES TO DISCOVER THE JUDGE’S SENTENCE-PROMISE MISTAKE, THEREFORE THE PRESERVATION REQUIREMENT APPLIED TO DEFENDANT’S CHALLENGE TO THE VALIDITY OF HIS GUILTY PLEA)

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DEFENDANT’S DEATH PRIOR TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY.

In this foreclosure action, the Second Department determined plaintiff bank's motion for summary judgment should not have been entertained because defendant had died before the motion was brought. The order appealed from was therefore a nullity:

Here, the deceased defendant died before the plaintiff's motion was made and before the order appealed from was issued. The attorney who had represented the deceased defendant prior to his death purportedly took this appeal on behalf of, among others, the deceased defendant. However, since a substitution of parties had not been effected prior to the filing of the notice of appeal, counsel lacked the authority to act for the deceased defendant, and the purported appeal taken on behalf of the deceased defendant must be dismissed … . Furthermore, since no substitution was made prior to the entry of the order appealed from, the order appealed from is a nullity to the extent that it pertains to the deceased defendant, and we vacate so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the deceased defendant … .

Similarly, in this case, since a proper substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against the other defendants … . Aurora Bank FSB v Albright, 2016 NY Slip Op 02307, 2nd Dept 3-30-16

CIVIL PROCEDURE (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/JURISDICTION (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/TRUSTS AND ESTATES (DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)/APPEALS (DEATH, DEFENDANT'S DEATH PRIOR TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DIVESTED THE COURT OF JURISDICTION, COURT SHOULD NOT HAVE DECIDED MOTION AND ORDER APPEALED FROM WAS A NULLITY)

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IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive dissenting opinion by Judge Fahey, determined the defendant should have been allowed to submit evidence of third-party culpability and ordered a new trial in this felony murder/rape case. The majority acknowledged the evidence against defendant was overwhelming. However, the third-party culpability evidence—hearsay admissions about the crime allegedly made to the declarant's cellmate in prison—qualified as statements against penal interest. Applying a balancing test, the Court of Appeals concluded the probative value of the hearsay was such that it was an abuse of discretion, as a matter of law, to exclude it:

Where, as here, the defendant makes an offer of proof to the court explaining the basis for a third-party culpability defense and connecting the third-party to the crime, and the probative value of the evidence “plainly outweighs the dangers of delay, prejudice and confusion,” then it is “error as a matter of law” to preclude the defendant from presenting such proof to the jury… .People v DiPippo, 2016  NY Slip Op 02279, CtApp 3-29-16

CRIMINAL LAW (IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/EVIDENCE (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/HEARSAY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/STATEMENT AGAINST PENAL INTEREST  (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)/THIRD-PARTY CULPABILITY (CRIMINAL LAW, IT WAS AN ABUSE OF DISCRETION, AS A MATTER OF LAW, TO EXCLUDE EVIDENCE OF THIRD-PARTY CULPABILITY IN THE FORM OF STATEMENTS AGAINST PENAL INTEREST)

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