Melendez-Diaz revisited, in a hurry

The Supreme Court will hear argument in Briscoe v. Virginia on January 11, 2010, a case revisiting the need for live testimony when introducing lab reports established by Melendez-Diaz. Prof. Richard Friedman, who writes the Confrontation Blog will argue for the defense. The National Association of Criminal Defense Lawyer's amicus brief was co-authored by a Washington PDS lawyer and Jeffrey Fisher, who argued Melendez-Diaz and Crawford v. Washington and in the "our rock stars are different than your rock stars" vein, is probably the Mick Jagger of appellate advocacy.

So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.

Melendez-Diaz revisited, in a hurry

The Supreme Court will hear argument in Briscoe v. Virginia on January 11, 2010, a case revisiting the need for live testimony when introducing lab reports established by Melendez-Diaz. Prof. Richard Friedman, who writes the Confrontation Blog will argue for the defense. The National Association of Criminal Defense Lawyer's amicus brief was co-authored by a Washington PDS lawyer and Jeffrey Fisher, who argued Melendez-Diaz and Crawford v. Washington and in the "our rock stars are different than your rock stars" vein, is probably the Mick Jagger of appellate advocacy.

So what's the difference between the ink-barely-dry Melendez-Diaz and Briscoe? Justice Sotomayor, for one. There are other differences, but that may be the one that counts. As the New York Times points out here, we'll soon find out what Justice Sotomayor thinks about the right to confrontation.

On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court's inherent powers under Judiciary Law § 2-b, absent any specific statutory authority for such procedure.

The majority elides over the substantial impairment to the defendant's rights under the Confrontation Clause that must necessarily result from attempting to cross-examine a witness who is watching the process on T.V.; roughly equivalent to trying to hit a marshmallow out of the new Yankee Stadium (even over the short wall). By contrast, Judge Smith in dissent, while not using that analogy exactly, gets the point across:

"The right of confrontation includes -- indeed, is, at its core -- the right to meet one's accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is "face to face" in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to "confront" her accuser in the constitutional sense . . ."

Judge Jones, also in dissent, notes that absent any legislative authority that would explicitly provide for the procedure used here, the majority essentially manufactures some extra trial court authority out of whole cloth, noting that "the majority's view of the courts' inherent powers presents a number of problems . . . there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court's authority to allow the admission of an absent witness's televised testimony as long as it is 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' . . . what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the state's public policy? . . . it appears that the majority's ruling effectively circumscribes the Legislature's role by allowing trial courts to . . . create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law)."

Another case of bad facts making bad law. The 85 year old complainant in this case was in ill health and unable to travel to the trial. Judge Jones proposed the remedy of a pretrial deposition, a solution that either didn't occur to the trial court, or couldn't be swallowed (who wants be known as the judge who let an attorney cross-examine a witness to death?) So the appellate result is an amorphous, undefinable, boundry-less "I'll know it when I see it"-like legal standard.

On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court's inherent powers under Judiciary Law § 2-b, absent any specific statutory authority for such procedure.

The majority elides over the substantial impairment to the defendant's rights under the Confrontation Clause that must necessarily result from attempting to cross-examine a witness who is watching the process on T.V.; roughly equivalent to trying to hit a marshmallow out of the new Yankee Stadium (even over the short wall). By contrast, Judge Smith in dissent, while not using that analogy exactly, gets the point across:

"The right of confrontation includes -- indeed, is, at its core -- the right to meet one's accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is "face to face" in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to "confront" her accuser in the constitutional sense . . ."

Judge Jones, also in dissent, notes that absent any legislative authority that would explicitly provide for the procedure used here, the majority essentially manufactures some extra trial court authority out of whole cloth, noting that "the majority's view of the courts' inherent powers presents a number of problems . . . there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court's authority to allow the admission of an absent witness's televised testimony as long as it is 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' . . . what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the state's public policy? . . . it appears that the majority's ruling effectively circumscribes the Legislature's role by allowing trial courts to . . . create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law)."

Another case of bad facts making bad law. The 85 year old complainant in this case was in ill health and unable to travel to the trial. Judge Jones proposed the remedy of a pretrial deposition, a solution that either didn't occur to the trial court, or couldn't be swallowed (who wants be known as the judge who let an attorney cross-examine a witness to death?) So the appellate result is an amorphous, undefinable, boundry-less "I'll know it when I see it"-like legal standard.

Extending the ability to belatedly prosecute cases where defendants are identifiable by DNA only, in People v. Ramon Ramos (12/15/09) the Court of Appeals held that "The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [4][a][ii]; see also Executive Law §§ 995 [7], 995-c [3]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, __ NY3d __, 2009 Slip Op 08475 [2009]).

Defendant's belated claim that the extension of the statute of limitation violated ex post facto considerations was not preserved below. Personally, I'm a little jealous of anyone who can put together a 10-year unbroken stretch with their whereabouts "continuously unknown and continuously unascertainable." That's a lot of time in the wind.

Extending the ability to belatedly prosecute cases where defendants are identifiable by DNA only, in People v. Ramon Ramos (12/15/09) the Court of Appeals held that "The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [4][a][ii]; see also Executive Law §§ 995 [7], 995-c [3]; People v Seda, 93 NY2d 307, 311 [1999]; People v Brown, __ NY3d __, 2009 Slip Op 08475 [2009]).

Defendant's belated claim that the extension of the statute of limitation violated ex post facto considerations was not preserved below. Personally, I'm a little jealous of anyone who can put together a 10-year unbroken stretch with their whereabouts "continuously unknown and continuously unascertainable." That's a lot of time in the wind.

Don't bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.

The problem many be one of semantics. "Brady material" has become a shorthand reference for "those materials required to be disclosed under Brady and its progeny." If "Brady material" refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if "Brady material" is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those "progeny" cases. The ability to sing the song ("Here's a story, of a man named . . . ") does not an awareness of Brady make.

For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).

In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).

The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).

Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.

When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant's requests would result in unfairness to the People - "it's not a level playing field." Of course, it was never meant to be.

For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).

Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).

To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:

"If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary" (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).

Don't bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.

The problem many be one of semantics. "Brady material" has become a shorthand reference for "those materials required to be disclosed under Brady and its progeny." If "Brady material" refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if "Brady material" is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those "progeny" cases. The ability to sing the song ("Here's a story, of a man named . . . ") does not an awareness of Brady make.

For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).

In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).

The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).

Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.

When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant's requests would result in unfairness to the People - "it's not a level playing field." Of course, it was never meant to be.

For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).

Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).

To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:

"If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary" (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).

Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).

Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).

In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.

In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

In People v Manges ( __ AD3d__, 2009 NY Slip Op 08258 [4th Dept 11/13/09]), the Court reversed and dismissed convictions for Criminal Possession of a Forged Instrument and Grand Larceny which were predicated on a computer printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller, that should not have been admitted into evidence.

The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495).

In People v Manges ( __ AD3d__, 2009 NY Slip Op 08258 [4th Dept 11/13/09]), the Court reversed and dismissed convictions for Criminal Possession of a Forged Instrument and Grand Larceny which were predicated on a computer printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller, that should not have been admitted into evidence.

The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495).

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

A conviction for driving while intoxicated was reversed in People v Rose (__AD3d __, 2009 NY Slip Op 08412 [4th Dept 11/13/09]) where the stop was baed on what the officer's bleief that he had witnesses a violation of the Vehicle and Traffic Law,based on mistaken interpretation of the law.

At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observed defendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375 (3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams "for particularly no reason at an oncoming vehicle." Section 375 (3) actually provides in relevant part that, "whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . ." The mere flashing of lights, alone, does not constitute a violation of the statute (citations omitted). The People presented no testimony at the hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law. "Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal" (citations omitted).

Flashing High Beams Did Not Provide Probable Cause For Stopping Vehicle

A conviction for driving while intoxicated was reversed in People v Rose (__AD3d __, 2009 NY Slip Op 08412 [4th Dept 11/13/09]) where the stop was baed on what the officer's bleief that he had witnesses a violation of the Vehicle and Traffic Law,based on mistaken interpretation of the law.

At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observed defendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375 (3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams "for particularly no reason at an oncoming vehicle." Section 375 (3) actually provides in relevant part that, "whenever a vehicle approaching from ahead is within [500] feet . . ., the headlamps, if of the multiple beam type . . . shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle . . . ." The mere flashing of lights, alone, does not constitute a violation of the statute (citations omitted). The People presented no testimony at the hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law. "Where the officer's belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the police as a direct result of the stop are illegal" (citations omitted).

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). Farrow does not mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982). Further, I noted that McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado. I concluded by noting that the Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.

In February, this blog discussed the Fourth Department's failure to acknowledge its authority to reduce negotiated sentences.
The focal point of the column was the decision in People v Farrow, 59 AD3d 935 [4th Dept 2/6/09],in which the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). Farrow does not mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982). Further, I noted that McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado. I concluded by noting that the Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life.

In People v Garcia-Gual (__ AD3d __, 2009 NY Slip Op 08277 [11/13/09]) the Fourth Department, finally disavowed its holding in McGovern, cited Delgado, and set forth the scope of its authority to review and reduce negotiated sentences:

We agree with defendant that, in reviewing his contention, it is inappropriate for this Court to address whether the sentencing court abused its discretion (see generally People v Delgado, 80 NY2d 780, 782). Pursuant to CPL 470.15 (2) (c), we may modify a judgment "by reversing it with respect to the sentence" in the event that the sentence is illegal and, pursuant to CPL 470.15 (6) (b), we may reverse or modify a judgment as a matter of discretion in the interest of justice in the event that "the sentence, though legal, was unduly harsh or severe." We also agree with the further contention of defendant that the fact that he received the bargained-for sentence does not preclude him from seeking our discretionary review of his sentence pursuant to CPL 470.15 (6) (b) (see People v Smith, 32 AD3d 553, 554; see generally People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513, 519-520). To the extent that prior decisions of this Court, including People v McGovern (265 AD2d 881, lv denied 94 NY2d 882), suggest a rule to the contrary, those decisions are not to be followed.

Mr. Garcia-Gual's sentence appeal was then rejected under the correct standard of review.

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

The decision in People v Sammy L. Swift (2009 NY Slip Op 07009 [4th Dept 10/2/09]) is a short one, and you really have to read it all to appreciate it, so here goes:

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied and the judgment of conviction is reinstated.

Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]; People v Swift, 241 AD2d 949, lv denied 91 NY2d 881, 1013). The People appeal from an order granting defendant's motion to vacate the judgment of conviction on the ground of newly discovered evidence (see CPL 440.10 [1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene was exclusively that of the victim. We agree with the People that the DNA test results are not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, the People presented evidence that blood at the crime scene was consistent with both the victim's blood type and defendant's blood type. Although the People relied upon that evidence to corroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949), we conclude that the remaining nonaccomplice evidence tends to connect defendant to the robbery and murder and is sufficient "to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293). The contention of defendant in his pro se supplemental brief that the sister of the accomplices was herself an accomplice whose testimony required corroboration was not raised in the motion and thus is not properly before us (see generally People v Goodell, 221 AD2d 1009, lv denied 88 NY2d 848). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.

Although the facts in the decision are typically sparse, lets try to translate to more clearly see what is really going on here:

1. Defendant lost the direct appeal of his robbery/murder conviction.

2. At trial the People argued that the blood at the scene belonged to both the victim and the defendant.

3. This evidence corroborated the accomplice testimony - apparently the only other evidence linking defendant to the commission of the crime.

4. The accomplices' sister was an accomplice too, but since her status as an accomplice wasn't preserved, her testimony now becomes the only "non-accomplice" evidence, apart from the blood evidence, connecting defendant to the crime.

5. After trial, defendant was able to demonstrate that the blood at the scene, contrary to the People's theory at trial, belonged only to the victim.

6. Defendant argued that had the truth been known by the trial jury, this would have created a reasonable possibility of a more favorable verdict in a case where the only other evidence against the defendant was accomplice evidence.

7. The lower court agreed and reversed defendant's conviction.

8. The Appellate Division held that this would NOT create a reasonable possibility of a more favorable verdict because of the other evidence connecting defendant to the crime. What other evidence? Why the testimony of the accomplice/non-accomplice sister, of course.

See if you can identify the problems with this decision - it's like one of those drawings containing the hidden objects - there's always one more.

First, the court equates the existence of what it somewhat disingenuously characterizes as non-accomplice evidence - the sister's testimony (and if there was other non-accomplice evidence, we couldn't know it from the facts recited in the decision, so I think this characterization is fair) - with a failure by the defendant to demonstrate a reasonable possibility of a more favorable verdict. But to prevail at this stage, the defendant need not prove that he WOULD prevail at trial, only that he MIGHT, in light of the new evidence. That the People may still have some evidence in their favor doesn't decide this question.

Another problem? The trial court - who, remember, sat through the trial, heard all the proof, saw the witnesses, and presided over the 440 hearing - is generally to be accorded "great deference," the cases so holding are legion, but only when ruling in favor of the People?

According to this decision, the prosecution's (untruthful) argument at trial that defendant's blood was present at the crime scene wasn't a significant consideration during jury deliberations? Do you think that is true? Do you think your average juror, if asked, would think so? Do you think this jury thought so?

Would the decision have been the same if defendant were convicted of grand larceny? This looks an awfully lot like the application of an Extremely Bad Man exception to the Due Process Clause.

Imagine that you're a second-year law student. This is the case you've been assigned to brief for today's class and you are tasked with defending the court's reasoning. Ready? Go . . .