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People’s Failure to Provide Timely Notice of the Intent to Present Witnesses to Rebut the Testimony of Defendant’s Alibi Witness Required Reversal

The Second Department reversed defendant’s conviction because the prosecutor failed to show good cause for her failure to provide timely notice of rebuttal witnesses.  Defendant had provided a “notice of alibi.”  Defendant’s alibi witness was his girlfriend, who testified defendant was home with her at the time of the offense.  The prosecutor did not provide reciprocal notice of rebuttal witnesses who would testify that cell phone records demonstrated defendant was not at home with his girlfriend at the time of the offense.  In spite of the lack of timely notice, the trial court allowed the rebuttal testimony after an adjournment:

CPL 250.20(1) provides, among other things, that within eight days of service of a demand by the People, a defendant “must” serve upon the People a “notice of alibi,” and that “[f]or good cause shown, the court may extend the period for service of the notice.” The reciprocal provision, CPL 250.20(2), provides, among other things, that “[w]ithin a reasonable time after receipt of the defendant’s witness list but not later than ten days before trial,” the People “must” serve and file a list of the witnesses the People propose to offer in rebuttal to discredit the defendant’s alibi at the trial, and that “[f]or good cause shown, the court may extend the period for service” of the People’s witness list.

CPL 250.20(3) provides that if the defendant calls an alibi witness at trial without having first served the requisite notice pursuant to CPL 250.20(1), the court “may exclude any testimony of such witness,” or “may in its discretion receive such testimony, but before doing so, it must, upon application” of the People, “grant an adjournment not in excess of three days” (CPL 250.20[3]). CPL 250.20(4) provides that the provisions of subdivision (3) “shall reciprocally apply” when the People seek to offer alibi rebuttal witnesses without having given the requisite notice pursuant to CPL 250.20(2).

Here, the People contend, in effect, that, unlike CPL 250.20(2), which requires the People to show “good cause” for an extension of time to serve the list of alibi rebuttal witnesses, CPL 250.20(3) and (4) do not require such a showing for the court to exercise its discretion in receiving such testimony absent any compliance with the notice requirement. We disagree … . A construction of the statute which requires good cause to be shown before trial, but not during trial, when late notice would be most prejudicial, is both contrary to the plain meaning of the statute, as well as contrary to the intent of the Legislature in amending the statute to comply with the Due Process Clause … . To hold otherwise would mean that CPL 250.20(3) and (4) completely eviscerate the timeliness of notice requirements of CPL 250.20(1) and (2). People v Crevelle, 2015 NY Slip Op 01661, 2nd Dept 2-25-15

 

ess Required Reversal

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Court’s Refusal to Allow Defendant to Inspect His Laptop Computer, Evidence from Which Was Central to the People’s Case, Was Reversible Error

The Second Department determined that denial of defendant’s request to inspect his laptop computer, from which evidence was extracted to prosecute him, was reversible error:

The trial court erred in denying the defendant’s motion to compel the People to provide the defendant with the opportunity to inspect the laptop computer that was seized from his home and for an adjournment of the trial, in order to permit the defense to examine that computer (see CPL 240.20[1][f]…). The defendant was entitled to inspect the laptop computer, pursuant to CPL 240.20(1)(f), and the defendant made a timely demand to inspect the laptop computer (see CPL 240.20[1][f]…).

Further, the laptop computer was central to the People’s case against the defendant; the People’s expert witness testified, at length, as to his examination of the laptop computer, the evidence that was extracted from that computer, and the basis for his conclusion that such evidence was accessed from or uploaded to the internet by the defendant. Additionally, the prosecution provided no reason for its failure to provide the computer to the defense. Under these circumstances, this error warrants reversal … . People v Naran, 2014 NY Slip Op 04969, 2nd Dept 7-2-14

 

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Writ of Prohibition Granted to Prevent Trial Judge from Precluding Testimony of Complainant—Complainant Would Not Release His Psychiatric Records

The First Department granted a writ of prohibition to prevent a trial judge from precluding the testimony of the complainant in a robbery case. The judge had precluded the testimony after the complainant refused to sign a HIPAA form to release his psychiatric records.  The complainant had acknowledged that he received psychiatric treatment and that he had auditory and visual hallucinations which were controlled by medication.  The First Department wrote:

An article 78 proceeding seeking relief in the nature of a writ of prohibition is an extraordinary remedy and is available to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction … . “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” … . Here, the court had no authority to issue this preclusion order since the records were neither discoverable nor Brady material … . It is undisputed that the People did not have the complainant’s records and did not know where he had been treated … . The People had no affirmative duty to ascertain the extent of the complainant’s psychiatric history or obtain his records … . The People advised the defense of the information they had regarding the complainant’s diagnosis and also apprised the defense of the complainant’s statements regarding his hallucinations. Therefore, no claim can be made that the People concealed any information from the court or the defense.  Matter of Johnson v Sackett, 2013 NY Slip Op 05663, 1st Dept 8-20-13

 

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In Sex-Offense Trial, Discovery of the Victim’s Psychiatric Records Properly Denied and Cross-Examination About Psychiatric History Properly Prohibited

In a sexual-offense case, the Fourth Department affirmed the trial court’s refusal to allow the defense access to the victim’s psychiatric records and the court’s preculsion of cross-examination of the victim about her psychiatric history:

Mental health records are discoverable “where a defendant can demonstrate a good faith basis for believing that the records contain ‘data relevant and material to the determination of guilt or innocence,’ a decision which will rest ‘largely on the exercise of a sound discretion by the trial court’ ”… ..  Here, the court reviewed the records in camera before ruling that defendant was not entitled to any portion of that victim’s mental health counseling records, and the court did not abuse its discretion in reaching that conclusion.

We reject defendant’s further contention that the court abused its discretion by precluding cross-examination of the same victim regarding her psychiatric history.  “A defendant has a constitutional right to confront the witnesses against him through cross-examination.  With respect to the psychiatric condition of a witness, ‘the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition’ ”… .  Here, defendant was permitted to question that victim about any medications that she was presently taking and whether those medications impaired her memory or affected her testimony.  However, defendant failed to show that her psychiatric history “would bear upon her credibility or otherwise be relevant”  … .  People v Tirado, 486, 4th Dept 8-15-13

 

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