RIGHT TO PRESENT A DEFENSE – New York Appellate Digest

[Harmless] Error to Deny Defense a Hearing to Determine Admissibility of Testimony of Private Investigator About What Could Be Seen from a Certain Vantage Point (Calling Into Question Testimony Identifying the Defendant)

The Second Department, over a vehement and detailed dissent, affirmed defendant’s assault and attempted murder convictions. The majority and dissent agreed that defendant should have been allowed to present the testimony of a private investigator about what could be seen from a certain vantage point (calling into question testimony identifying defendant), but disagreed about whether the error was harmless. The dissent explained the defendant’s right to present a defense:

FROM THE DISSENT:

The People correctly concede that it was error by the court to preclude the defense counsel from calling his private investigator as a witness. A defendant’s right to call witnesses in his or her behalf is a constitutional right essential to due process of law … . In the absence of bad faith, the general rule is that where the defendant seeks to call a witness, the witness should be sworn and asked questions, to permit the court, upon proper objection, to rule upon the admissibility of the evidence offered … .

Here, the defense counsel’s request for a hearing on the admissibility of the witness’s testimony was improperly denied on the ground that opinion testimony from lay witnesses is inadmissible. However, there is no categorical proscription against the admission of opinions from lay witnesses … . Further, the proposed testimony about the ability to see a point from another stated vantage point constituted testimony as to the facts—and would not necessarily include opinions … . Since the defendant had a constitutional right to put forth a defense, contrary to the conclusion of my colleagues, the error cannot be deemed harmless … . People v Smith, 2015 NY Slip Op 07043, 2nd Dept 9-30-15

September 30, 2015

Conditioning Co-Defendant’s Plea on a Promise Not to Testify in Defendant’s Trial Is a Denial of the Right to Present a Defense

Although the Fourth Department affirmed defendant’s conviction, the court agreed with the defendant that the People improperly conditioned co-defendant’s plea upon his promise not to testify at defendant’s trial and threatened to increase the co-defendant’s sentence if he did testify. The trial court eliminated the problem by permitting the co-defendant to testify without exposure to a more severe sentence:

We agree with defendant that it was improper for the People to condition the plea of a codefendant upon his promise not to testify at defendant’s trial and to threaten to increase the codefendant’s sentence should he violate that condition ….. As the United States Supreme Court wrote in Washington v Texas (388 US 14, 19), “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law.” Thus, “substantial interference by the State with a defense witness’ free and unhampered choice to testify violates due process as surely as does a willful withholding of evidence” … . Here, however, defendant was not prejudiced by the improper plea condition inasmuch as the court granted his motion to permit the codefendant to testify on defendant’s behalf without exposure to a more severe sentence, and the court advised the codefendant of its ruling …. . People v Whitfield, 99, 4th Dept 3-21-14

March 21, 2014

Constitutional Law, Criminal Law, Evidence

Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense. The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime. Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay. The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

August 21, 2013

Criminal Law, Evidence

Judge’s Refusal to Allow Defendant to Call Inmate Witness Required Reversal

The Fourth Department reversed defendant’s conviction because the trial court refused defendant’s request to present an inmate witness who might have supported defendant’s version of events:

CPL 630.10 provides for the attendance of an inmate witness in a criminal action or proceeding upon a demonstration of “reasonable cause to believe that such person possesses information material” to such proceeding. Here, defendant made the requisite showing under that statute, and the court abused its discretion in refusing to order the production of the subject inmate witness whose testimony defendant sought to present at trial… . There is no dispute that the proposed inmate witness spoke to the driver of the vehicle in which defendant was a passenger just before defendant’s arrest. The proposed witness was at a distance of between 20 feet and 20 yards from the vehicle at the time of defendant’s arrest. Moreover, we note that there was no fingerprint evidence in this case, which involved a top count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and the issue of defendant’s guilt turned largely on the testimony of two police detectives. We cannot countenance the court’s refusal to allow defendant to present the testimony of a witness who might have supported defendant’s version of events. People v Baxter, 599, 4th Dept 7-19-13

July 19, 2013

Criminal Law, Evidence

Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense

The Second Department determined defendant was not denied his right to present a defense by County Court’s refusal to allow defendant’s sister-in-law to testify:

A criminal defendant has a fundamental right to produce witnesses, and “absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied”…. However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay….

In the instant case, the proposed testimony of the defendant’s sister-in-law regarding the relationship between the defendant and his wife consisted largely of hearsay, was cumulative to other evidence, and was only marginally, if at all, relevant. Consequently, the County Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense… . People v Strzelecki, 2013 NY Slip Op 05233, 2nd Dept 7-10-13

July 10, 2013

Appeals, Criminal Law

Failure to Raise Denial of Constitutional Right to Present a Complete Defense Precluded Appeal

The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review. People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13

May 29, 2013

Criminal Law

Court’s Quashing of Defense Subpoena Deprived Defendant of Right to Present a Defense

The Second Department determined the trial court quashing of an subpoena served upon a defense witness deprived defendant of his constitutional right to present a defense and required a new trial. People v Eastment, 2013 NY Slip Op 03687, 2nd Dept, 5-22-13

May 22, 2013

Constitutional Law, Criminal Law, Evidence

Trial Court’s Refusal to Allow Defense Witness to Be Called Required Reversal

The Fourth Department (over two dissents) reversed defendant’s conviction and ordered a new trial because the defense was precluded from calling a witness. The prosecution’s theory was that the defendant committed robbery, assault and burglary against the victim in retaliation for the victim’s informing the police defendant was growing marijuana in his house. It was anticipated the witness the defense was not allowed to call would testify that defendant accused him (the witness) of being the informant but did not assault or threaten him. The Fourth Department explained:

It is well settled that “a defendant’s ‘right to present his own witnesses to establish a defense . . . is a fundamental element of due process of law’ ” …In fact, “[f]ew rights are more fundamental than that of an accused to present witnesses in his [or her] own defense” …Thus, the testimony of a defense witness should not be prospectively excluded unless the offer of such proof is palpably in bad faith …. Instead, courts upon proper objection should “rule on the admissibility of the evidence offered” …. Here, the People do not suggest that the testimony of the proposed witness was offered in bad faith, and the court did not make such a finding at trial. Indeed, there is no basis in the record for concluding that the offer of proof was palpably in bad faith. The court therefore should have allowed the proposed witness to testify, whereupon the prosecutor could object to any testimony she deemed inadmissible or improper. People v Arena, KA 12-01632, 179, 4th Dept, 5-3-13

RIGHT TO PRESENT A DEFENSE

May 3, 2013

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