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Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examinated about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

The People sought the court’s permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant’s physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant’s credibility. Despite defendant’s objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant’s previous assault was “relevant” to “show that [defendant] can be physically aggressive” and, additionally, that such proof would speak to defendant’s anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

Based upon County Court’s authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant’s prior assault bore no relation to defendant’s credibility, but rather served solely to illustrate defendant’s propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries … . Accordingly, as defendant’s guilt was not overwhelmingly established by the proof presented at trial and we “cannot say that there is no reasonable possibility that the error might have contributed to defendant’s conviction,” the judgment must be reversed and the matter remitted for a new trial … . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

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Cross-Examination of People’s Witness About Her Past Status as a Confidential Informant Properly Precluded—Status Ended a Year Before and Witness Had Legitimate Safety Concerns

The First Department determined the defense was properly precluded from cross-examination of one of the People’s witnesses about her past status as a confidential informant:

The witness’s service as an informant had concluded a year before the instant crime and did not involve defendant, the People demonstrated that the witness had legitimate safety concerns regarding disclosure of her status, and there was nothing in the circumstances of the case to raise a suspicion that her past informant status contributed to her becoming a prosecution witness in this case. People v Lopez, 2014 NY Slip Op 08117, 1st Dept 11-20-14

 

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Evidence of Defendant’s Silence at the Time of Arrest Should Not Have Been Allowed—New Trial Ordered

The Court of Appeals reversed defendant’s conviction and ordered a new trial because evidence of defendant’s silence at the time of arrest was erroneously allowed:

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles … . And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process … . Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post-Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.  People v Hill, 2014 NY Slip OP 07925, CtApp 11-18-14

 

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Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant—Defendant Did Not Open the Door for Use of the Statement by Contradicting It On Direct

The Fourth Department determined statements made by the defendant, which had been suppressed, were improperly admitted to impeach the defendant (harmless error however):

…Supreme Court erred in permitting the prosecutor to impeach him with the statement that he made to State University police officers. That statement had been suppressed, and defendant did not open the door to its use for impeachment by giving testimony contrary to the statement during his direct examination… . People v Blair, 2014 NY Slip Op 06730, 4th Dept 10-3-14

 

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Successive Photo Arrays Okay/Statement Made Voluntarily After Refusing to Waive Miranda Rights Admissible for Impeachment Purposes

The Fourth Department dismissed an attempted murder charge because “the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges”… . [The indictment charged one shooting but proof at trial alleged two shootings which were considered by the jury.] In the course of the decision, which also discussed the criteria for severance of defendants and the admissibility for impeachment purposes of a statement made voluntarily after a refusal to waive Miranda rights, the Fourth Department determined that the submission of multiple photo arrays with the defendant in them did not require suppression of the identification evidence:

Contrary to defendant’s … contention, Supreme Court did not err in refusing to suppress identification evidence. ” Multiple photo identification procedures are not inherently suggestive’ ” … . “While the inclusion of a single suspect’s photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures’ ” … . Here, although there was not a significant lapse of time between the presentation of the arrays …, the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array … .

We … conclude that the court did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes … . Here, the People met their initial “burden at the Huntley hearing of establishing that defendant’s . . . statements were not the product of improper police conduct’ ” … , and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced”…. .  People v Wilson, 2014 NY Slip Op 06394, 4th Dept 9-26-14

 

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Defense Counsel Should Have Been Allowed to Cross-Examine Cooperating Accomplice/Witness to Demonstrate Motivation and Bias

The First Department, in a full-fledged opinion by Justice Acosta, determined that the curtailment of cross-examination of a cooperating witness deprived defendant of his right to confront the witnesses against him.  Four were charged in a robbery.  One of the four, referred to as “M,” entered a cooperation agreement and testified against the defendant. Defense counsel was prohibited from asking M a line of questions intended to reveal M’s motivation and bias:

Here, defendant sought … [to question] M. in an attempt to cast doubt on his credibility by revealing his bias and motive to fabricate testimony. Defense counsel’s theory was that M. had implicated defendant in the prior uncharged robberies in order to bolster the value of his cooperation agreement with the People. This was unquestionably an appropriate trial strategy, since “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination” … . That M. intended to invoke his Fifth Amendment privilege and refuse to answer the questions does not abrogate defendant’s Sixth Amendment right of confrontation. As an accomplice witness, M.’s credibility, bias, and motive to fabricate were not collateral issues … . Therefore, defense counsel should have been permitted to question him on the prior crimes. If he subsequently invoked his Fifth Amendment privilege, the trial court should have gone as far as striking all or some of his direct testimony … . At a minimum, the court should have pursued the “least drastic relief” (typically reserved for “collateral matters or cumulative testimony concerning credibility”) by instructing the jury that it could consider M.’s invocation of the Fifth Amendment in determining his credibility … . People v McLeod, 2014 NY Slip Op 05926, 1st Dept 8-21-14

 

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Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper

The First Department determined the impeachment of the defendant with a statement made by the defendant’s attorney at arraignment was proper:

The court properly admitted a statement made at arraignment by defendant’s counsel, who was also trial counsel, to impeach defendant after he testified to a different version of the events … At the arraignment, the attorney stated that defendant was the source of the information, and the attorney was clearly acting as defendant’s authorized agent when she provided this information to the arraignment court for her client’s benefit …, notwithstanding her assertion at trial that she had inaccurately conveyed her client’s version of the incident. Introduction of the statements did not require the People to call counsel as a witness against her client … , and the People never sought to do so. People v Ortiz, 2014 NY Slip Op 00616, 1st Dept 2-4-14

 

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence:

…[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant’s post-arrest silence cannot be used for impeachment purposes … . Further, ” an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth’ while the risk of prejudice is substantial'” … .

Here, over defense counsel’s objection, the prosecutor was permitted to impeach the defendant’s testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information “narrat[ing] the essential facts of his involvement in the crime” … . Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry… . People v Theodore, 2014 Slip Op 00246, 2nd Dept 1-15-14

 

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Evidence Relevant to a Reason to Fabricate is Never Collateral

The Third Department noted that the trial court erred (harmless) when it prohibited defendant from questioning witnesses against him (Corsi and Beebe) about grievances and a lawsuit defendant had filed.  Evidence of a witness’ reason to fabricate should not have been excluded as collateral:

…County Court improperly denied his motion requesting permission to question Corsi and Beebe about prior notices of discipline, grievances filed by defendant and defendant’s pending federal lawsuit … .  The court concluded that the issues were collateral and would be precluded unless the door were opened by a witness’s testimony reflecting bias or hostility toward defendant.  While “trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters,” “extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground”… .  People v Hughes, 105838, 3rd Dept 11-27-13

 

County Court Should Have Ordered a Hearing Re: Defendant’s 440 Motion to Vacate His Conviction—There Was Evidence Outside the Record that Required Development—Defendant Suffered from a Mental Illness and Was Taking Medications which May Have Affected His Judgment at the Time of the Plea Proceedings

The Third Department determined County Court erred when it did not order a hearing to determine defendant’s CPL 440.10 motion to vacate his conviction (by guilty plea).  The motion, as well as other evidence in the record (i.e., the presentence report), indicated defendant suffered from a mental illness and was taking medications that may have clouded his judgment when the guilty plea was entered:

Defendant presented further evidence of his mental illness and use of psychotropic medications upon his CPL 440.10 motion. In his own affidavit, defendant recounted experiencing extreme anxiety leading to his hospitalization, and stated that the medications he was taking made him feel intoxicated and in a haze during the plea and sentencing proceedings.  He also submitted the affidavit of a forensic nurse consultant, who indicated that the side effects of the medications that defendant was taking included drowsiness, dizziness, fatigue and abnormal thinking, and noted that Zoloft was not recommended for individuals with bipolar disorder.  The nurse opined that the combination and quantity of medications that defendant was taking at the time of his plea and sentencing “most certainly” would have affected his cognitive ability to understand the proceedings.

Although postjudgment motions may often be determined upon the record and submissions, a hearing is required where facts outside the record are material and would entitle a defendant to relief (see CPL 440.30 [5]…). Here, the proof reveals that defendant suffers from a mental illness and was taking psychotropic medications, and further development of the record is required to determine the extent to which his mental capacity was impaired and whether this rendered him unable to enter a knowing, voluntary and intelligent guilty plea.  A hearing on defendant’s CPL 440.10 motion is the appropriate vehicle for collecting further evidence on this issue and determining whether defendant’s guilty plea should be vacated as a result … .  Accordingly, we find that County Court erred in denying defendant’s CPL 440.10 motion without a hearing, and conclude that this matter must be remitted to County Court for this purpose. People v Hennessey, 105342, 3rd Dept  11-27-13

 

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