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Evidence of Prior Violent Act by Defendant Properly Admitted to Refute “Extreme Emotional Disturbance” Affirmative Defense

The Court of Appeals, in a full-fledged opinion by Judge Stein, in a murder case, determined that evidence of a prior violent act committed by the defendant was properly admitted to rebut defendant’s “extreme emotional disturbance” defense. Defendant presented expert testimony alleging he suffered from post-traumatic stress disorder (PTSD) stemming from a stabbing attack. The defendant argued that his reaction to seeing his friend attacked, intensified by the PTSD, was the reason he fired his gun at a group of people, killing one of them. The defense argued that, prior to the stabbing which triggered the PTSD, defendant was a non-violent person. The evidence of the pre-PTSD violent act by defendant was properly admitted to call into question the “PTSD” defense. A violent incident which occurred after the charged offense, however, should not have been admitted:

Where …. evidence of a defendant’s bad acts or uncharged crimes is “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” … .

Evidence of uncharged criminal conduct or bad acts that are probative of a defendant’s state of mind may be admissible if the defendant “opens the door” to such evidence by putting in issue his state of mind at the time of the commission of the charged crime by, for example, raising an extreme emotional disturbance or insanity defense … . Nevertheless, such a defense opens the door to the People’s rebuttal evidence “only to the extent that [the proffered] evidence has a natural tendency to disprove [the defendant’s] specific claim” … . That is, evidence of uncharged crimes or bad acts is admissible to rebut an extreme emotional disturbance defense where the evidence has “some ‘logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove” the defense, and the probative value of the evidence outweighs its prejudicial effect … .  Although the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion …, “the threshold question of identifying a material issue to which the evidence is relevant poses a question of law” … .

… The crux of the defense was that defendant, a previously nonviolent person, was suffering from PTSD as a result of the 2005 stabbing incident and that his actions in firing into the group on the street were attributable to his PTSD. By raising this defense and presenting the testimony of [two witnesses] — both of whom testified regarding defendant’s personality and behavior before the 2005 stabbing as compared with his behavior after that event — defendant “necessarily put[] in issue some aspects of his character and personal history” … . The prosecutor’s inquiries pertaining to the 2002 incident were “directly relevant to the question of defendant’s reaction patterns” because it was an instance in which “defendant had resorted to violence in the face of relatively mild provocation” before the 2005 stabbing occurred … . This altercation “ha[d] a logical and natural tendency to disprove [defendant’s] specific claim” that he was an otherwise peaceful person who reacted with violence only because his PTSD was triggered by the circumstances in which the shooting took place … . In other words, it tended to refute the subjective element of defendant’s defense, i.e. that he actually acted under the influence of PTSD. Moreover, the court’s decision to allow this incident to be explored on cross-examination, rather than through the testimony of a rebuttal witness, was not improper under the facts presented here. People v Israel, 2015 NY Slip Op 08370, CtApp 11-18-15

 

 

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Rebuttal Evidence Re: a Defense that Was Not Asserted Should Not Have Been Allowed (Harmless Error)/Partial Closure of Courtroom During Testimony of Undercover Officers Proper

The First Department, over a dissent, determined that, although Supreme Court erred when it allowed the prosecution to reopen its case to present rebuttal evidence, the error was harmless in this bench trial. Defense counsel had mentioned an agency defense to the drug-sale charge, but then explained that the only defense raised at trial was defendant’s complete noninvolvement. Under those circumstances evidence rebutting the agency defense, which was never asserted, should not have been allowed. The First Department also held that Supreme Court properly closed the courtroom during the testimony of undercover officers.  With regard to the partial closure of the courtroom, the First Department wrote:

The Hinton hearing court, which closed the courtroom for the testimony of two undercover officers and which offered to permit family members or other persons designated by defendant to enter, properly exercised its discretion in rejecting defense counsel’s proposal that a court officer screen members of the general public who sought to enter during the testimony. The court concluded that this suggestion would have been impracticable because there was no additional court officer available to be posted outside the courtroom, and because in any event the officer would frequently have to interrupt the testimony to report the presence of persons seeking to enter. Therefore, under the circumstances presented, defendant’s proposal was not a “reasonable alternative[] to closing the proceeding” … . People v Mallard, 2015 NY Slip Op 01882, 1st Dept 3-10-15

 

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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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Evidence which Should Have Been Presented In the People’s Direct Case Should Not Have Been Allowed in Rebuttal

The Second Department determined the trial court erred in allowing the People to present more evidence after the defense rested. The charges were based upon allegations the defendant caused injuries to her baby by shaking the baby.  The People’s evidence demonstrated the defendant denied knowing that shaking the baby could cause injury.  The People were allowed to present evidence, after the defense had rested, that a nurse had explained the dangers of shaking to the defendant:

A court has the discretion to permit a party to present evidence in rebuttal, which, more properly, should have been presented in that party’s original case (see CPL 260.30[7]…). The Court of Appeals has approved the exercise of this discretion where the evidence proffered relates to an element of the offense which is “simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” … .

Here, the missing element of the People’s case was not a simple, uncontested fact, but, instead, was the mens rea of the subject offense … . Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child. Furthermore, the parties’ expert witnesses ” hotly contested'” … whether shaking could cause the type of injuries at issue and, if so, how much force would be necessary to cause such injuries, and there was no evidence that the defendant knew of the point when rocking or shaking could become potentially injurious.

Because this case does not fit within “the narrow circumstances where . . . the missing element is simple to prove and not seriously contested, and reopening the case does not unduly prejudice the defense” …, the Supreme Court improvidently exercised its discretion in granting the People’s application to present the nurse’s testimony in rebuttal. Without this testimony, the People’s evidence was legally insufficient to establish the mens rea element of endangering the welfare of a child beyond a reasonable doubt … . People v Robinson, 2014 NY Slip Op 04970, 2nd Dept 7-2-2014

 

Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness

The Fourth Department, over a strong two-justice dissent, determined that a rebuttal witness called by the People was properly allowed to testify to demonstrate the bias of a defense witness.  The explanation about the relevance of the rebuttal testimony is fact-specific.  The dissenters did not see the rebuttal testimony as relevant to the defense witness’ bias and did not agree that the “bias” rationale for the rebuttal was actually raised in the trial court:

…[T]he rebuttal witness was properly called to give testimony that was relevant to the defense witness’s bias or motive to fabricate, which is not collateral … . The defense witness was defendant’s former girlfriend, and the rebuttal witness was defendant’s ex-wife, who married defendant after he and the defense witness ended their romantic relationship. In her cross-examination of the defense witness, the prosecutor attempted to show that defendant and the defense witness were romantically involved at the time of the trial, but the defense witness would admit only that she and defendant were friends, and claimed that she and defendant had been friends “all along,” i.e., they were friends even when defendant and the rebuttal witness were married. The prosecutor informed the court that she wanted to call the rebuttal witness to rebut the defense witness’s testimony that she and defendant were “friends this entire time.” We disagree with our dissenting colleagues that the rebuttal witness should not have been allowed to testify. Reading the prosecutor’s colloquy with the court on this issue, together with her cross-examination of the defense witness, we conclude that the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of the trial, which the prosecutor believed could be inferred if the defense witness and defendant had not been friends when he was married to the rebuttal witness.

We also disagree with our dissenting colleagues that our affirmance of the trial court’s ruling violates People v Concepcion (17 NY3d 192). The Court of Appeals has ” construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court’ ” (id. at 195). Contrary to the position of the dissent, we are not affirming on a ground that is different from that determined by the court. The court allowed the rebuttal witness to testify for the “limited purpose” of whether the defense witness and defendant were friends, and we conclude that the court’s determination was proper. We simply differ from the dissent in our interpretation of the meaning of the rebuttal witness’s testimony tending to show that the defense witness and defendant were not friends after defendant married the rebuttal witness.  People v Nicholson, 2014 NY Slip Op 04611, 4th Dept 6-20-14

 

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