In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained

that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).

In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained

that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the court failed to inquire into defendant’s absence and to recite “on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate” (People v Brooks, 75 NY2d 898, 899, mot to amend remittitur granted 76 NY2d 746; see People v Dugan, 210 AD2d 971, 972, lv denied 85 NY2d 972).

In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the

waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the action of a grand jury on the charges in the superior court information (SCI). Defendant is correct that his contention “is a jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d 585, 589 n), and we agree with defendant that his contention has merit. As the record establishes, at the time defendant waived indictment and consented to be prosecuted by an SCI, he had already been indicted on the burglary charges, which arose from the same incident. Consequently, we agree with defendant that, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.

In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the

waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the action of a grand jury on the charges in the superior court information (SCI). Defendant is correct that his contention “is a jurisdictional one which survives his appeal waiver and guilty plea”
(People v Dennis, 66 AD3d 1058, 1058; see People v Boston, 75 NY2d 585, 589 n), and we agree with defendant that his contention has merit. As the record establishes, at the time defendant waived indictment and consented to be prosecuted by an SCI, he had already been indicted on the burglary charges, which arose from the same incident. Consequently, we agree with defendant that, “[g]iven the objective and the plain language of CPL 195.10 (2) (b), the conclusion is inescapable that waiver cannot be accomplished after indictment, as was the case here, even where it is the defendant who orchestrates the scenario” (Boston, 75 NY2d at 589). We therefore reverse the judgment in appeal No. 2, vacate the sentence imposed, and dismiss the SCI.

Frank Sterling and the Denial of a Motion for DNA Testing

In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling's actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate Division, Fourth Department affirmed this ruling (37 AD3d 1158[4th Dept 2007]), denying the innocent Mr. Sterling access to the evidence which, when eventually obtained, helped prove his innocence.

So it was kind of shocking to see that in People v Woodrich (4th dept 9/30/11) the Appellate Division, Fourth Department, cited its decision in Sterling as the authority for rejection another inmates' motion for DNA testing:

County Court properly denied the motion “because defendant failed to establish that there was a reasonable probability that, had those items been tested [further] and had the results been admitted at trial, the verdict would have been more favorable to defendant” (People v Sterling, 37 AD3d 1158).

Frank Sterling and the Denial of a Motion for DNA Testing

In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling's actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate Division, Fourth Department affirmed this ruling (37 AD3d 1158[4th Dept 2007]), denying the innocent Mr. Sterling access to the evidence which, when eventually obtained, helped prove his innocence.

So it was kind of shocking to see that in People v Woodrich (4th dept 9/30/11) the Appellate Division, Fourth Department, cited its decision in Sterling as the authority for rejection another inmates' motion for DNA testing:

County Court properly denied the motion “because defendant failed to establish that there was a reasonable probability that, had those items been tested [further] and had the results been admitted at trial, the verdict would have been more favorable to defendant” (People v Sterling, 37 AD3d 1158).

The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing:

“[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus ‘defendant may properly appeal as of right from both the judgment of conviction . . . and the sentence as amended . . ., directing payment of restitution . . ., [with] no need to seek leave to appeal from [the] order of restitution’ ” (People v Brusie, 70 AD3d 1395, 1396).

The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing:

“[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus ‘defendant may properly appeal as of right from both the judgment of conviction . . . and the sentence as amended . . ., directing payment of restitution . . ., [with] no need to seek leave to appeal from [the] order of restitution’ ” (People v Brusie, 70 AD3d 1395, 1396).

The headline in today's Rochester Democrat and Chronicle was that Mark Christie had pled guilty to the 1988 murder of Viola Manville. This plea follows the April 28, 2010 vacateur of the 1992 Monroe County murder conviction of Frank Sterling for that very murder. (For a detailed account of the Frank Sterling case, see).

As was the case with such other wrongful conviction exonerations in which the Fourth Department had affirmed the wrongful convictions, such as that of Freddie Peacock, Douglas Warney, and Betty Tyson, the primary evidence against Mr. Sterling was a false confession.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the http://www.blogger.com/img/blank.gifaforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit.

False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see). Clearly, not just juries, but appellate courts, have difficulty recognizing and distinguishing false confessions from reliable one. Yet, in People v Walker (4th Dept 9/30/11)) the Court held that a trial court

did not err in refusing defendant’s request to allow defendant to present the testimony of a false confessions expert. It is well established that the admissibility of expert testimony is addressed primarily to the sound discretion of the trial court (see People v Cronin, 60 NY2d 430, 433), and here we conclude that the court properly determined that the expert did not possess a professional or technical knowledge that was beyond the ken of the average juror (see People v Hicks, 2 NY3d 75).

By not requiring the admission of such testimony or the giving of an adverse inference instruction regarding the failure to record interrogations (see) the Court is insuring that future juries will credit statements obtained after unrecorded interrogations in future cases, sometimes from innocent defendants..

The headline in today's Rochester Democrat and Chronicle was that Mark Christie had pled guilty to the 1988 murder of Viola Manville. This plea follows the April 28, 2010 vacateur of the 1992 Monroe County murder conviction of Frank Sterling for that very murder. (For a detailed account of the Frank Sterling case, see).

As was the case with such other wrongful conviction exonerations in which the Fourth Department had affirmed the wrongful convictions, such as that of Freddie Peacock, Douglas Warney, and Betty Tyson, the primary evidence against Mr. Sterling was a false confession.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the http://www.blogger.com/img/blank.gifaforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit.

False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see). Clearly, not just juries, but appellate courts, have difficulty recognizing and distinguishing false confessions from reliable one. Yet, in People v Walker (4th Dept 9/30/11)) the Court held that a trial court

did not err in refusing defendant’s request to allow defendant to present the testimony of a false confessions expert. It is well established that the admissibility of expert testimony is addressed primarily to the sound discretion of the trial court (see People v Cronin, 60 NY2d 430, 433), and here we conclude that the court properly determined that the expert did not possess a professional or technical knowledge that was beyond the ken of the average juror (see People v Hicks, 2 NY3d 75).

By not requiring the admission of such testimony or the giving of an adverse inference instruction regarding the failure to record interrogations (see) the Court is insuring that future juries will credit statements obtained after unrecorded interrogations in future cases, sometimes from innocent defendants..

New Website and Online Forum for Rochester Area Criminal Defense Attorneys

The Monroe County Public Defender's Office has introduced a new website (see) which, in part, contains links to some of that office's excellent training materials (see) and to numerous helpful articles on aspects of New York criminal law authored by Jim Eckert (see), a frequent contributor to this blog.Additionally, the website is a portal to the "Defender Discussion Forum".

The forum, is a bulletin board that will allow defense attorneys (criminal and family court) to post topics on issues of concern to the defense community, seek advice on any issues they may have, or help other attorneys with advice on problems or issues. In addition to an area where defense attorneys can assist one another in resolving issues or addressing common concerns, the forum will be a place for posting helpful information such as CLE materials for CLEs conducted by the Monroe County Public Defender's Office.The forum contains multiple subject areas (moderated by experienced attorneys) relevant to representing persons in the criminal and family courts of Monroe County.

The forum is not a listserv. In order for an attorney to see the posts on the forum, read responses, download documents, or post to the forum one must sign-on to the forum. Posts will not be automatically emailed to particpants unless one chooses that as an option. (To have posts emailed to you automatically, you must "subscribe" to the sub-forum in which you wish to receive posts by email. To do this, go to the Forum, select a sub-forum [e.g., "Discovery"] you would like to subscribe to and look in the lower right hand side of the forum page, just above "Jump to box" and click "Subscribe Forum". If you ever want to stop getting the emails, go back and click "unsubscribe forum".)

In order to have access to the Defender Discussion Forum, one must first register for a name and password. If you are a defense attorney who practices in the criminal courts and/or family courts of the greater Rochester area you are welcome to join. To register, please go to the Monroe County Public Defender website here.Click on "Legal Information" and "Defender Discussion Forum". You will then be taken to a sign-on screen where you can begin the registration process. You will be asked to supply a username, password, and email address. Once you have registered, you may be contacted by the board administrator, prior to your registration being approved, for additional information to confirm that you are a member of the assigned counsel program (criminal or family court), an employee of an institutional defender office, or an attorney in private practice who represents persons in the criminal and/or family courts in the greater Rochester area. This information will not be shared with anyone. (Should you have any problems registering with the Forum, please feel free to contact our Forum administrator, Jim Eckert at jeckert@monroecounty.gov.

Please keep in mind that although registration will be limited to defense attorneys who represent clients in criminal court or family court, the Public Defender's office cannot control how information posted to the forum is disseminated. Thus, anything one posts to the forum is not "private". Also, the forum is for a discussion of issues, so please refrain from personal attacks on judges, other attorneys, or litigants, or expressing views on a subject not directly related to defense work.

Caveat:The Defender Discussion Forum is provided as a service to the defense community. The information contained on the forum is provided as a service to the defense bar, and does not constitute legal advice. Although the goal is to provide quality information, the Monroe County Public Defender make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in the forum. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for your own research. Therefore, Monroe County and the Monroe County Public Defender Office expressly denies liability and undertakes no responsibility for the reliance on, or consequences of, using information or services found in the forum.

New Website and Online Forum for Rochester Area Criminal Defense Attorneys

The Monroe County Public Defender's Office has introduced a new website (see) which, in part, contains links to some of that office's excellent training materials (see) and to numerous helpful articles on aspects of New York criminal law authored by Jim Eckert (see), a frequent contributor to this blog.Additionally, the website is a portal to the "Defender Discussion Forum".

The forum, is a bulletin board that will allow defense attorneys (criminal and family court) to post topics on issues of concern to the defense community, seek advice on any issues they may have, or help other attorneys with advice on problems or issues. In addition to an area where defense attorneys can assist one another in resolving issues or addressing common concerns, the forum will be a place for posting helpful information such as CLE materials for CLEs conducted by the Monroe County Public Defender's Office.The forum contains multiple subject areas (moderated by experienced attorneys) relevant to representing persons in the criminal and family courts of Monroe County.

The forum is not a listserv. In order for an attorney to see the posts on the forum, read responses, download documents, or post to the forum one must sign-on to the forum. Posts will not be automatically emailed to particpants unless one chooses that as an option. (To have posts emailed to you automatically, you must "subscribe" to the sub-forum in which you wish to receive posts by email. To do this, go to the Forum, select a sub-forum [e.g., "Discovery"] you would like to subscribe to and look in the lower right hand side of the forum page, just above "Jump to box" and click "Subscribe Forum". If you ever want to stop getting the emails, go back and click "unsubscribe forum".)

In order to have access to the Defender Discussion Forum, one must first register for a name and password. If you are a defense attorney who practices in the criminal courts and/or family courts of the greater Rochester area you are welcome to join. To register, please go to the Monroe County Public Defender website here.Click on "Legal Information" and "Defender Discussion Forum". You will then be taken to a sign-on screen where you can begin the registration process. You will be asked to supply a username, password, and email address. Once you have registered, you may be contacted by the board administrator, prior to your registration being approved, for additional information to confirm that you are a member of the assigned counsel program (criminal or family court), an employee of an institutional defender office, or an attorney in private practice who represents persons in the criminal and/or family courts in the greater Rochester area. This information will not be shared with anyone. (Should you have any problems registering with the Forum, please feel free to contact our Forum administrator, Jim Eckert at jeckert@monroecounty.gov.

Please keep in mind that although registration will be limited to defense attorneys who represent clients in criminal court or family court, the Public Defender's office cannot control how information posted to the forum is disseminated. Thus, anything one posts to the forum is not "private". Also, the forum is for a discussion of issues, so please refrain from personal attacks on judges, other attorneys, or litigants, or expressing views on a subject not directly related to defense work.

Caveat:The Defender Discussion Forum is provided as a service to the defense community. The information contained on the forum is provided as a service to the defense bar, and does not constitute legal advice. Although the goal is to provide quality information, the Monroe County Public Defender make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in the forum. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for your own research. Therefore, Monroe County and the Monroe County Public Defender Office expressly denies liability and undertakes no responsibility for the reliance on, or consequences of, using information or services found in the forum.

Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:

1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.

Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one's clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained

We have previously held that if a defendant's leave application presents his claims in such a way that "eliminate[s] issues as to which review had been expressly requested," Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant's leave application "clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief," the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but "expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's [attached] brief.'" Morgan, 204 F.3d at 370-71 (citing defendant's letter application).In this case, Harris's leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that "this Court consider and review all issues outlined in appellant's [Appellate Division] brief." (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press "all" of the issues he had presented to the Fourth Department, including his affirmative defense claim.

Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are:

1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread, statewide impact or offirst impression;3. Those involving recent U. S Supreme Court decisions and how theyare to be applied in New York (e.g., should New York adopt a differentrule under the State Constitution, under which it may give greater rights than those given under the Federal Constitution);4. Those possibly determined erroneously in a published writing at the intermediate appellate court, which may mislead other courts, the bar and the public;5. Those involving construction of new statutory schemes.

Thus, those are the types of issues that should be emphasized in drafting a leave application. But it is poor lawyering and harmful to one's clients to only include such issues in the application. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.Interpreting this exhaustion requirement, the United States Supreme Court in O’Sullivan v Boerckel (526 U.S. 838 [1999]) held that a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has not properly presented his claims to the state courts. Thus, to insure that all federal issues raised on appeal can be considered in a federal habeas proceeding counsel must include them in the leave application. In Harris v Fischer (I2d Cir 9/9/110 (see) the Court of Appeals for the Second Circuit reviewed a District Court (Telesca,J.) holding that the petitioner had procedurally defaulted his claim because he insufficiently alerted the Court of Appeals to the claim in his letter application. In finding that the District Court had erred the Court explained

We have previously held that if a defendant's leave application presents his claims in such a way that "eliminate[s] issues as to which review had been expressly requested," Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.), cert. denied, 531 U.S. 819 (2000), those issues are procedurally defaulted and cannot be asserted in a subsequent federal habeas petition. On the other hand, if a defendant's leave application "clearly state[s] that he [is] pressing all of the claims raised in [an] attached [Appellate Division] brief," the Court of Appeals is considered to have been fairly apprised of all of those claims. Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). We have found such a clear statement within a leave application that briefly but "expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's [attached] brief.'" Morgan, 204 F.3d at 370-71 (citing defendant's letter application).In this case, Harris's leave application to the New York State Court of Appeals discussed only his Brady and fair-trial claims in detail, but concluded with a request that "this Court consider and review all issues outlined in appellant's [Appellate Division] brief." (Appellant App. 135). Although Harris had discussed one section of the brief at length in his letter, he unambiguously stated that he wished to press "all" of the issues he had presented to the Fourth Department, including his affirmative defense claim.

Some More Thoughts on Alibi Cases

Jill Paperno's post on alibi cases (see), has provoked these additional thoughts about the subject by two of her colleagues at he Monroe County Public Defender's Office:

Comments on SOME THOUGHTS ON ALIBI CASES
By David Juergens
Assistant Monroe County Public Defender

CPL 250.20 (1) requires the People to serve their demand for notice of alibi “not more than twenty days after arraignment.” Often, the People attempt to satisfy this statutory requirement by adding a boilerplate paragraph to their CPL 710 notice (attached to the indictment).
A defense attorney may wish to challenge the facial sufficiency of the People’s demand for notice of alibi, arguing that the People’s “demand” is defective on its face for lack of specificity. Typically, no date, time or place for the alleged crime(s) will be set forth in the “demand” paragraph itself. Therefore, to the extent that the indictment itself also lacks specificity as to date, time or place, the People have failed to provide facts that are essential for the establishment of an alibi defense (i.e., “that at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime” (CPL 250.20 [1]).
If the People supply the missing information in a Bill of Particulars, you can argue that the People must nevertheless renew their demand for notice of alibi (which triggers a new eight-day service period for the defense). If the Bill of Particulars is served more than twenty days after arraignment, the demand for notice of alibi (even if renewed) is untimely. Whenever the People argue for strict compliance with the requirements of CPL 250.20, it should be argued, if possible, that the People themselves did not comply with the statute. Stated simply, boilerplate demands are insufficient to trigger the defendant’s statutory obligation to provide the People with a list of alibi witnesses.
The lack of specificity problem becomes even more acute where the defendant would admit to being at the crime scene at some point during the date(s) alleged in the indictment. For example, where the People specify the date, but not the time for an alleged crime, and the defendant undoubtedly was present at the scene of the crime on the same date, the defendant is not in a position to serve a specific “notice of alibi’ in response to the People’s vague demand. If the defendant was present at the scene of the crime during the only time period specified by the prosecution (a certain date), he cannot be expected to file a “notice of alibi.”

By James Eckert
Assistant Monroe County Public Defender

If the prosecution was permitted to demand an alibi for all the time covered by their non-specific allegations, they would benefit from their own vagueness. On the other hand, if the defendant were excused from serving a notice of alibi if he was at the scene of the crime during some part of the DA's vast time period, then the incentives would be properly balanced, it seems to me. If you want a notice of alibi for when something took place, tell us when it took place. You can't say "March, 2007" and expect the defendant to account for his whereabouts for the entire month, and then preclude him from putting on alibi evidence for a specific date and time during March when that date and time become important.
If the prosecution cannot specify when their crime took place, they have to take the bad with the good. If a defendant was present at the scene of the crime during any part of the People's allegation, then I think he ought to be relieved from serving a notice of alibi (serving a notice is much safer, I'd make this argument when you find yourself in extremis).

Some More Thoughts on Alibi Cases

Jill Paperno's post on alibi cases (see), has provoked these additional thoughts about the subject by two of her colleagues at he Monroe County Public Defender's Office:

Comments on SOME THOUGHTS ON ALIBI CASES
By David Juergens
Assistant Monroe County Public Defender

CPL 250.20 (1) requires the People to serve their demand for notice of alibi “not more than twenty days after arraignment.” Often, the People attempt to satisfy this statutory requirement by adding a boilerplate paragraph to their CPL 710 notice (attached to the indictment).
A defense attorney may wish to challenge the facial sufficiency of the People’s demand for notice of alibi, arguing that the People’s “demand” is defective on its face for lack of specificity. Typically, no date, time or place for the alleged crime(s) will be set forth in the “demand” paragraph itself. Therefore, to the extent that the indictment itself also lacks specificity as to date, time or place, the People have failed to provide facts that are essential for the establishment of an alibi defense (i.e., “that at the time of the commission of the crime charged [the defendant] was at some place or places other than the scene of the crime” (CPL 250.20 [1]).
If the People supply the missing information in a Bill of Particulars, you can argue that the People must nevertheless renew their demand for notice of alibi (which triggers a new eight-day service period for the defense). If the Bill of Particulars is served more than twenty days after arraignment, the demand for notice of alibi (even if renewed) is untimely. Whenever the People argue for strict compliance with the requirements of CPL 250.20, it should be argued, if possible, that the People themselves did not comply with the statute. Stated simply, boilerplate demands are insufficient to trigger the defendant’s statutory obligation to provide the People with a list of alibi witnesses.
The lack of specificity problem becomes even more acute where the defendant would admit to being at the crime scene at some point during the date(s) alleged in the indictment. For example, where the People specify the date, but not the time for an alleged crime, and the defendant undoubtedly was present at the scene of the crime on the same date, the defendant is not in a position to serve a specific “notice of alibi’ in response to the People’s vague demand. If the defendant was present at the scene of the crime during the only time period specified by the prosecution (a certain date), he cannot be expected to file a “notice of alibi.”

By James Eckert
Assistant Monroe County Public Defender

If the prosecution was permitted to demand an alibi for all the time covered by their non-specific allegations, they would benefit from their own vagueness. On the other hand, if the defendant were excused from serving a notice of alibi if he was at the scene of the crime during some part of the DA's vast time period, then the incentives would be properly balanced, it seems to me. If you want a notice of alibi for when something took place, tell us when it took place. You can't say "March, 2007" and expect the defendant to account for his whereabouts for the entire month, and then preclude him from putting on alibi evidence for a specific date and time during March when that date and time become important.
If the prosecution cannot specify when their crime took place, they have to take the bad with the good. If a defendant was present at the scene of the crime during any part of the People's allegation, then I think he ought to be relieved from serving a notice of alibi (serving a notice is much safer, I'd make this argument when you find yourself in extremis).

by
Jill Paperno
Second Assistant Monroe County Publiv Defender

Every now and then, we as defense attorneys are confronted with the possibility, and perhaps the necessity, of introducing evidence of alibi (at the time of the commission of the crime charged the defendant was at some place or places other than the scene of the crime). For most of us, our initial inclination is to run for cover. But in that rare case where alibi is the defense of choice, defense counsel has to know the law, investigate and prepare well. (Wait- isn’t that what we’re supposed to do in all cases?)

FIRST – WHAT TO DO WHEN THE INFORMATION IS PRESENTED TO YOU

If you are informed by your client or other people – perhaps family members or friends – that your client could not have been present at the time of the incident because he or she was some other place, think like a cop or prosecutor – what are the holes in the story? Are there things that don’t make sense? Can you prove the alibi?

In this age of technology, you may be able to prove an alibi with documents generated as a result of purchases, travel or even internet usage. (Uh-oh – make sure you are not generating other charges.) Or you may be able to obtain video recordings from cameras monitoring businesses or even street corners. For much of this kind of proof, time is of the essence. So if you learn of a possible alibi, get an investigator and get moving. Begin to accumulate any evidence there may be – receipts, travel documents, etc. When you acquire the documents, make sure you preserve them in a way that you can retrieve them later for trial, and establish a chain of custody.

TO TELL OR NOT TO TELL?

Do you let the prosecutor know of your alibi early in the case before it is statutorily required? It depends on the quality of the alibi, the prosecutor, and the policies of the prosecutor’s office. Although CPL 250.20 requires notice to the prosecutor within eight days of the receipt of a prosecutor’s demand for notice of alibi (and this will be discussed further below), what do you do if you know you have an alibi before indictment? The 250.20 requirement does not come into play until there is an indictment. So you have to judge whether you are likely to head off the moving train by presenting the information to the prosecutor, or if you will just be giving away your defense before you have your witnesses prepared to deal with prosecutor witnesses.
In a case I recently handled, I presented the information to the prosecutor within three days of the arraignment of my client in City Court on a felony complaint. Unfortunately, that meant nothing in terms of getting the prosecution to question the quality of the proof in the case.

GRAND JURY?

Although you may choose to request that the alibi witnesses be heard by the grand jury, consider this option carefully. If the prosecutor is unlikely to seek dismissal based on an alibi, will that influence how the grand jury hears the witnesses? Will presentation of the witnesses create inconsistencies for use by the prosecutor later in the case, even if the witnesses are telling the truth?

250.20 AND THE STATUTORY PERIOD

You are required to serve notice after indictment, within eight days of when you receive a request for notice from the prosecution. Take a look at the 710.30 notice that comes attached to indictments – at least in Monroe County- even when there are no statements or ID witnesses. Guess what – there’s a request for notice of alibi! So it is likely that you are going to receive the request, at least on a felony charge, at the arraignment on the felony.

But what if you do not know whether you have an alibi defense at that stage – perhaps you are still investigating, or perhaps you do not learn of it until later in the case? The statute provides a court with discretion to extend the period for alibi notice. I will sometimes advise a court that I am exploring a defense and ask for an extension of time. (But rarely, since it’s rare that I would consider such a defense.)

In People v. Mensche, 276 AD2d 834, the Fourth Department stated:

Although the trial court has the discretion to extend the period in which the defendant must file and serve his notice of alibi, an application for such an extension may be denied where the defendant does not appropriately demonstrate good cause for the delay ( see, People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506; People v. Davis, 193 A.D.2d 885, 886-887, 597 N.Y.S.2d 780, lv. denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314). Although the late entry of defense counsel into the case may provide the required reasonable excuse for delay in service of the notice of alibi ( see, People v. Davis, supra ), here, the tardiness of the notice of alibi prejudiced the People's ability to adequately investigate defendant's claims prior to trial. Further, the tardiness of the service of the notice of alibi was not cured when defendant renewed his application to present the alibi witnesses based upon his contention that the People had, in fact, interviewed those witnesses, since County Court properly found the notice facially inadequate because it failed to advise the People of the places at which defendant claimed to be at the time of the commission of the crimes, hampering the People's opportunity to thoroughly investigate defendant's claim. Accordingly, County Court's denial of defendant's application to present alibi witnesses was not an abuse of discretion.


If the prosecutor somehow does not serve you with a request pursuant to CPL 250.20(1), it seems there is no obligation to notify. But I’ve never had a felony case without a request, and I’m not sure of how confident I would be that a trial judge would find the lack of request precluded an obligation on my part. Tricky question.


If you fail to serve the notice within the statutory period, argue to the Court that your client has a right to present a defense as protected by the New York State and United States Constitutions, as well as rights to due process and a fair trial also protected by the Constitutions. You may lose, but there are times that the constitutional rights will trump statutory requirements (though not always). See, e.g. Davis v. Alaska, 415 US 308.

If the prosecution intends to offer rebuttal witnesses, it must serve you with notice (CPL 250.20(2). But they get up to ten days before trial. The statute contains a continuing obligation to provide additional witnesses (CPL 250.20[3]).

If you are serving a 250.20 notice, consider what you are statutorily required to offer in the notice. You must include the place or places the defendant claims to have been at the time, and the names, residential addresses, places of employment and those addresses for all witnesses. Strangely, you do not have to include phone numbers. Or e-mail addresses. Or what your client was doing at the time.

DAWSON

In People v. Dawson 50 NY2d 311 the Court of Appeals found that there was no per se due process prohibition against questioning alibi witnesses as to why they did not come forward earlier. The Court set forth a foundation that could be used by the prosecutor prior to questioning the witnesses, stating, in footnote 4,

In most cases, the District Attorney may lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

But the Court also recognized that there are times a witness may choose not to come forward to inform the police of an alibi. One of those times may be if defense counsel advises them not to. So consider whether, if you are aware of the witnesses within a short time of the offense, you want your witnesses coming forward early in the case. If you advise them not to, argue that the prosecutor should not be permitted to question them about not coming forward, citing Dawson. If your witnesses have not come forward early in the case for other reasons, consider whether, under Dawson, those reasons should bar questioning about failure to come forward.

You should be aware that if the witnesses did not come forward early in the case, and the prosecution is permitted to question on it, or the Dawson considerations lead the Court to believe it’s fair to instruct on it, the alibi instruction does contain a paragraph that permits a jury to draw a negative inference.


WITNESSES WHO DO COME FORWARD

Occasionally, witnesses do come forward to the police, and if your client has still been charged, either they were deemed incredible by the police, or the police just didn’t care enough to consider whether what they had to say was the truth.

If the prosecutor gets to ask about failure to promptly come forward, shouldn’t we be able to establish that the witnesses did come forward? If you believe you may face objections about hearsay and bolstering if you try to elicit the prompt disclosure of the alibi to authorities, consider making an argument that due process, as protected by the New York State and United States Constitutions, entitles you to present this evidence. Here’s the argument you may want to include in any moving papers:

The defense will be presenting alibi evidence in Mr. Smith’s case. On (date), the date that Mr. Smith was arrested, Investigator Jones took Mr. Smith’s statement, in which Mr. Smith stated he was in (location) at the time of the crime. He told the investigator who he was with. The investigator failed to follow up on the information.

As this Court is aware, if an alibi witness fails to come forward prior to trial, or early in a case, under some circumstances a jury is read a jury instruction which permits an adverse inference, stating when applicable, “You may, however, consider the witness’ failure to come forward with such information earlier than he/she did only insofar as that failure is inconsistent with his/her alibi testimony at this trial, and casts doubt upon the truthfulness of that testimony.” The instruction cites to People v. Dawson, 50 NY2d 311. In Dawson, the Court recognized that “the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’s exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a ‘prior inconsistent statement’ by the witness. As has been observed by one noted commentator, ‘(a) failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact…There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency’ (cite omitted). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements maybe used as a means of impeaching his testimony at trial (cite omitted).”

It is defendant’s contention that if the prosecution may elicit testimony in alibi cases concerning witnesses who have not come forward, and an adverse inference is permitted when there is a failure of the witness to come forward early in the case (and the foundational requirements of Dawson have been met), then Mr. Smith’s due process rights as protected by the New York State and United States constitutions require that the defense be permitted to introduce testimony that the alibi information was provided on the date of defendant’s arrest by (the witness), and was available to the police from that date on. In other words, if it may be held against a defendant if an alibi witness does not come forward early, then it should be permissible for the defense to introduce testimony that a witness did.

If the prosecutor does not call the witnesses and give the defendant an opportunity to establish that the witnesses were available and that they attempted to “come forward” on the first date they learned of Mr. Smith’s charges –the date of his arrest, then the jury may be left with the questions anticipated by the Court in Dawson - why would his then-girlfriend not come forward? Is there something unbelievable about this account? Whether or not the jury is given an instruction about failure to come forward, the natural inclination to speculate about a failure to come forward when it would have been natural to do so might operate against Mr. Smith.

The right to introduce evidence of a witness coming forward in order to dispel jury speculation is permitted the prosecution under other circumstances. In sex offense cases, a prosecutor is permitted to introduce evidence of prompt complaint. One of the reasons prompt outcry is permitted was noted by the Court of Appeals in People v. McDaniel 81 NY2d 10. The Court stated, “(t)he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being “natural” for an “outraged female (cites omitted).” Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint ( cites omitted ), the admissibility of prompt outcry remains viable because ‘our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.’ ( cite omitted.)” 81 NY 2d at 16-17.

Thus, both McDaniel and Dawson recognize the potential harm that may arise from jury speculation about a lack of evidence on a topic in which witnesses might be expected to behave differently. Defendant respectfully submits that pursuant to his rights to Due Process as protected by the New York State and United States Constitutions, he is entitled to elicit testimony that the witness provided alibi information to the police on the date Mr. Smith was arrested, and that witness information was made available to the police on that date, but was not investigated.

THE ALIBI INSTRUCTION

The current alibi instruction is found on the Office of Court Administration website (as are the other jury charges generally used by trial judges). http://www.nycourts.gov/cji/

As with all jury instructions, you should read them well before your trial. It seems to me that the current jury instruction does not necessarily comport with the requirement of People v. Victor, 62 NY2d 374, which requires that the trial court unequivocally instruct the jury that the alibi must be disproven beyond a reasonable doubt. (How awesome is that?) But the current instruction does not require that language. At least one person agrees with me that the instruction does not comport with Victor, as that issue was raised (and lost by the defense) before the Court of Appeals this year in People v. Melendez 16 NY3d 869. The Court found that the objection to the instruction was not preserved. The Court also pointed out that the instruction had recently been changed, so it seems this may be a basis to either get the instruction or to preserve an issue for appeal.

ALIBI AND IDENTIFICATION

In an alibi case, you are also challenging the identification of your client. All of the issues that come into play in an ID case are therefore present in the alibi trial. Make sure you are familiar with the current state of the law on identification, as well as issues relating to how ID procedures are conducted, experts on ID, and the expanded identification jury charge contained on the jury charge website. (Consider looking at the recent New Jersey case, State v. Larry Robinson, decided by the New Jersey Supreme Court on August 24th, as well as the New York State Justice Task Force report, “Recommendations for Improving Eyewitness Identifications”. (Consider asking for an ID charge before the witnesses testify, or perhaps a cross-racial ID charge before they testify and at the end of the case.)

by
Jill Paperno
Second Assistant Monroe County Publiv Defender

Every now and then, we as defense attorneys are confronted with the possibility, and perhaps the necessity, of introducing evidence of alibi (at the time of the commission of the crime charged the defendant was at some place or places other than the scene of the crime). For most of us, our initial inclination is to run for cover. But in that rare case where alibi is the defense of choice, defense counsel has to know the law, investigate and prepare well. (Wait- isn’t that what we’re supposed to do in all cases?)

FIRST – WHAT TO DO WHEN THE INFORMATION IS PRESENTED TO YOU

If you are informed by your client or other people – perhaps family members or friends – that your client could not have been present at the time of the incident because he or she was some other place, think like a cop or prosecutor – what are the holes in the story? Are there things that don’t make sense? Can you prove the alibi?

In this age of technology, you may be able to prove an alibi with documents generated as a result of purchases, travel or even internet usage. (Uh-oh – make sure you are not generating other charges.) Or you may be able to obtain video recordings from cameras monitoring businesses or even street corners. For much of this kind of proof, time is of the essence. So if you learn of a possible alibi, get an investigator and get moving. Begin to accumulate any evidence there may be – receipts, travel documents, etc. When you acquire the documents, make sure you preserve them in a way that you can retrieve them later for trial, and establish a chain of custody.

TO TELL OR NOT TO TELL?

Do you let the prosecutor know of your alibi early in the case before it is statutorily required? It depends on the quality of the alibi, the prosecutor, and the policies of the prosecutor’s office. Although CPL 250.20 requires notice to the prosecutor within eight days of the receipt of a prosecutor’s demand for notice of alibi (and this will be discussed further below), what do you do if you know you have an alibi before indictment? The 250.20 requirement does not come into play until there is an indictment. So you have to judge whether you are likely to head off the moving train by presenting the information to the prosecutor, or if you will just be giving away your defense before you have your witnesses prepared to deal with prosecutor witnesses.
In a case I recently handled, I presented the information to the prosecutor within three days of the arraignment of my client in City Court on a felony complaint. Unfortunately, that meant nothing in terms of getting the prosecution to question the quality of the proof in the case.

GRAND JURY?

Although you may choose to request that the alibi witnesses be heard by the grand jury, consider this option carefully. If the prosecutor is unlikely to seek dismissal based on an alibi, will that influence how the grand jury hears the witnesses? Will presentation of the witnesses create inconsistencies for use by the prosecutor later in the case, even if the witnesses are telling the truth?

250.20 AND THE STATUTORY PERIOD

You are required to serve notice after indictment, within eight days of when you receive a request for notice from the prosecution. Take a look at the 710.30 notice that comes attached to indictments – at least in Monroe County- even when there are no statements or ID witnesses. Guess what – there’s a request for notice of alibi! So it is likely that you are going to receive the request, at least on a felony charge, at the arraignment on the felony.

But what if you do not know whether you have an alibi defense at that stage – perhaps you are still investigating, or perhaps you do not learn of it until later in the case? The statute provides a court with discretion to extend the period for alibi notice. I will sometimes advise a court that I am exploring a defense and ask for an extension of time. (But rarely, since it’s rare that I would consider such a defense.)

In People v. Mensche, 276 AD2d 834, the Fourth Department stated:

Although the trial court has the discretion to extend the period in which the defendant must file and serve his notice of alibi, an application for such an extension may be denied where the defendant does not appropriately demonstrate good cause for the delay ( see, People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506; People v. Davis, 193 A.D.2d 885, 886-887, 597 N.Y.S.2d 780, lv. denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314). Although the late entry of defense counsel into the case may provide the required reasonable excuse for delay in service of the notice of alibi ( see, People v. Davis, supra ), here, the tardiness of the notice of alibi prejudiced the People's ability to adequately investigate defendant's claims prior to trial. Further, the tardiness of the service of the notice of alibi was not cured when defendant renewed his application to present the alibi witnesses based upon his contention that the People had, in fact, interviewed those witnesses, since County Court properly found the notice facially inadequate because it failed to advise the People of the places at which defendant claimed to be at the time of the commission of the crimes, hampering the People's opportunity to thoroughly investigate defendant's claim. Accordingly, County Court's denial of defendant's application to present alibi witnesses was not an abuse of discretion.


If the prosecutor somehow does not serve you with a request pursuant to CPL 250.20(1), it seems there is no obligation to notify. But I’ve never had a felony case without a request, and I’m not sure of how confident I would be that a trial judge would find the lack of request precluded an obligation on my part. Tricky question.


If you fail to serve the notice within the statutory period, argue to the Court that your client has a right to present a defense as protected by the New York State and United States Constitutions, as well as rights to due process and a fair trial also protected by the Constitutions. You may lose, but there are times that the constitutional rights will trump statutory requirements (though not always). See, e.g. Davis v. Alaska, 415 US 308.

If the prosecution intends to offer rebuttal witnesses, it must serve you with notice (CPL 250.20(2). But they get up to ten days before trial. The statute contains a continuing obligation to provide additional witnesses (CPL 250.20[3]).

If you are serving a 250.20 notice, consider what you are statutorily required to offer in the notice. You must include the place or places the defendant claims to have been at the time, and the names, residential addresses, places of employment and those addresses for all witnesses. Strangely, you do not have to include phone numbers. Or e-mail addresses. Or what your client was doing at the time.

DAWSON

In People v. Dawson 50 NY2d 311 the Court of Appeals found that there was no per se due process prohibition against questioning alibi witnesses as to why they did not come forward earlier. The Court set forth a foundation that could be used by the prosecutor prior to questioning the witnesses, stating, in footnote 4,

In most cases, the District Attorney may lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

But the Court also recognized that there are times a witness may choose not to come forward to inform the police of an alibi. One of those times may be if defense counsel advises them not to. So consider whether, if you are aware of the witnesses within a short time of the offense, you want your witnesses coming forward early in the case. If you advise them not to, argue that the prosecutor should not be permitted to question them about not coming forward, citing Dawson. If your witnesses have not come forward early in the case for other reasons, consider whether, under Dawson, those reasons should bar questioning about failure to come forward.

You should be aware that if the witnesses did not come forward early in the case, and the prosecution is permitted to question on it, or the Dawson considerations lead the Court to believe it’s fair to instruct on it, the alibi instruction does contain a paragraph that permits a jury to draw a negative inference.


WITNESSES WHO DO COME FORWARD

Occasionally, witnesses do come forward to the police, and if your client has still been charged, either they were deemed incredible by the police, or the police just didn’t care enough to consider whether what they had to say was the truth.

If the prosecutor gets to ask about failure to promptly come forward, shouldn’t we be able to establish that the witnesses did come forward? If you believe you may face objections about hearsay and bolstering if you try to elicit the prompt disclosure of the alibi to authorities, consider making an argument that due process, as protected by the New York State and United States Constitutions, entitles you to present this evidence. Here’s the argument you may want to include in any moving papers:

The defense will be presenting alibi evidence in Mr. Smith’s case. On (date), the date that Mr. Smith was arrested, Investigator Jones took Mr. Smith’s statement, in which Mr. Smith stated he was in (location) at the time of the crime. He told the investigator who he was with. The investigator failed to follow up on the information.

As this Court is aware, if an alibi witness fails to come forward prior to trial, or early in a case, under some circumstances a jury is read a jury instruction which permits an adverse inference, stating when applicable, “You may, however, consider the witness’ failure to come forward with such information earlier than he/she did only insofar as that failure is inconsistent with his/her alibi testimony at this trial, and casts doubt upon the truthfulness of that testimony.” The instruction cites to People v. Dawson, 50 NY2d 311. In Dawson, the Court recognized that “the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’s exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a ‘prior inconsistent statement’ by the witness. As has been observed by one noted commentator, ‘(a) failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact…There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency’ (cite omitted). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements maybe used as a means of impeaching his testimony at trial (cite omitted).”

It is defendant’s contention that if the prosecution may elicit testimony in alibi cases concerning witnesses who have not come forward, and an adverse inference is permitted when there is a failure of the witness to come forward early in the case (and the foundational requirements of Dawson have been met), then Mr. Smith’s due process rights as protected by the New York State and United States constitutions require that the defense be permitted to introduce testimony that the alibi information was provided on the date of defendant’s arrest by (the witness), and was available to the police from that date on. In other words, if it may be held against a defendant if an alibi witness does not come forward early, then it should be permissible for the defense to introduce testimony that a witness did.

If the prosecutor does not call the witnesses and give the defendant an opportunity to establish that the witnesses were available and that they attempted to “come forward” on the first date they learned of Mr. Smith’s charges –the date of his arrest, then the jury may be left with the questions anticipated by the Court in Dawson - why would his then-girlfriend not come forward? Is there something unbelievable about this account? Whether or not the jury is given an instruction about failure to come forward, the natural inclination to speculate about a failure to come forward when it would have been natural to do so might operate against Mr. Smith.

The right to introduce evidence of a witness coming forward in order to dispel jury speculation is permitted the prosecution under other circumstances. In sex offense cases, a prosecutor is permitted to introduce evidence of prompt complaint. One of the reasons prompt outcry is permitted was noted by the Court of Appeals in People v. McDaniel 81 NY2d 10. The Court stated, “(t)he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being “natural” for an “outraged female (cites omitted).” Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint ( cites omitted ), the admissibility of prompt outcry remains viable because ‘our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.’ ( cite omitted.)” 81 NY 2d at 16-17.

Thus, both McDaniel and Dawson recognize the potential harm that may arise from jury speculation about a lack of evidence on a topic in which witnesses might be expected to behave differently. Defendant respectfully submits that pursuant to his rights to Due Process as protected by the New York State and United States Constitutions, he is entitled to elicit testimony that the witness provided alibi information to the police on the date Mr. Smith was arrested, and that witness information was made available to the police on that date, but was not investigated.

THE ALIBI INSTRUCTION

The current alibi instruction is found on the Office of Court Administration website (as are the other jury charges generally used by trial judges). http://www.nycourts.gov/cji/

As with all jury instructions, you should read them well before your trial. It seems to me that the current jury instruction does not necessarily comport with the requirement of People v. Victor, 62 NY2d 374, which requires that the trial court unequivocally instruct the jury that the alibi must be disproven beyond a reasonable doubt. (How awesome is that?) But the current instruction does not require that language. At least one person agrees with me that the instruction does not comport with Victor, as that issue was raised (and lost by the defense) before the Court of Appeals this year in People v. Melendez 16 NY3d 869. The Court found that the objection to the instruction was not preserved. The Court also pointed out that the instruction had recently been changed, so it seems this may be a basis to either get the instruction or to preserve an issue for appeal.

ALIBI AND IDENTIFICATION

In an alibi case, you are also challenging the identification of your client. All of the issues that come into play in an ID case are therefore present in the alibi trial. Make sure you are familiar with the current state of the law on identification, as well as issues relating to how ID procedures are conducted, experts on ID, and the expanded identification jury charge contained on the jury charge website. (Consider looking at the recent New Jersey case, State v. Larry Robinson, decided by the New Jersey Supreme Court on August 24th, as well as the New York State Justice Task Force report, “Recommendations for Improving Eyewitness Identifications”. (Consider asking for an ID charge before the witnesses testify, or perhaps a cross-racial ID charge before they testify and at the end of the case.)