Saturday, May 12, 2012

Trial Tip: Dealing With Inferential Hearsay or Bolstering


Jill Paperno, Special Assistant Monroe County Public Defender

Often the DA will try to introduce hearsay testimony as well as what is considered inferential hearsay and bolstering testimony at trial.  They may ask an officer, "Did you talk to the witness Mr. So and So" and then ask the officer, "And after talking to that witness, did you arrest the defendant."  The testimony is trying to get the jury to infer that based on the conversation, which was likely inadmissible hearsay and bolstering of other evidence, the officer learned information that provided a basis to arrest the defendant.  In other words, the witness told the officer the defendant did it.  Perhaps this initial conversation was had with a witness who is not testifying at trial, or might not come in any way.  So the DA is trying to backdoor that the defendant was identified as the culprit right at the scene. 

In People v. Spicola, 16 NY3d 441  the Court of Appeals  addressed the definition of "bolstering": 

In People v Buie, 86 NY2d 501 (1995), we considered whether the admission of a 911 tape under the hearsay exception for present sense impression, where the declarant was available and testified at trial, improperly bolstered his trial testimony. We explained that the term “bolstering” has “doctrinally referred to two distinct situations, both related to the rule against hearsay” (id. at 509–510). The first common use of the term arose “in the context of eyewitness identification, [where] the testimony of a third party (typically, a police officer) to the effect that the witness identified a defendant as the perpetrator on some prior occasion [was] generally inadmissible” because the “identification evidence [was] hearsay, not falling within any exception” (id. at 510,). Second, the term “bolstering” “refers to the fortification of a witness's testimony and credibility through the use of a prior consistent statement ... Such evidence may be admissible, but only to rebut a claim of recent fabrication ... A prior consistent statement is admitted under these limited circumstances as an exception to the hearsay rule” ( id. [citations omitted] ). 

You should consider objecting on hearsay, inferential hearsay and/or bolstering grounds when you hear this type of testimony coming at trial.  Sometimes courts will permit it as narrative or background information, but if that happens request an instruction that it is not to be considered for the truth of the alleged statement. 

If you object and some or all of the testimony is kept out, listen carefully to the prosecutor's summation (which you should be doing anyway).  As we all know, there are a lot of errors that constitute misconduct going on in summations here in the Fourth Department.  In a recent trial, the prosecutor in my case argued to the jury that "you heard that (complainant) identified the defendant at the scene."   They never heard any such thing, in part, due to the objections that were sustained.  They did hear that my client was arrested at the scene over my objection, and the judge, over my repeated argument about inferential hearsay and bolstering,  did allow the prosecutor to say that he was arrested at the scene. 

Do not let the prosecutor belittle or demean the defense strategy at trial by characterizing it inappropriately.  The prosecutor in my recent trial argued that the defense was merely an effort to confuse the jury.  The judge sort of sustained my objection to the DA's argument that "you heard the defendant was identified at the scene " - letting  him argue that he was arrested at the scene, but not that he was identified and that the jury's recollection is what counts.

Friday, May 11, 2012

Counsel's Options When Proof Is Insufficient To Prove Charged Offense, But Sufficient To Prove Lesser Included Offense

Jill Paperno, Special Assistant Monroe County Public Defender

When you make a TOD motion, if the proof is sufficient to sustain a lesser included charge, the court may not grant the TOD.  (CPL 290.10 ["the court may, except as provided...upon motion of the defendant, (a) issue a 'trial order of dismissal,' dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense..."])

What happens when the proof is clearly inadequate to support the top count, but you can't get a TOD because there is a view of the proof that supports the lower count?   You should ask the court to not submit the top count to the jury, but only the lesser.  CPL 300.40(1) states, "When the court 'submits a count' it must, at the least, submit the offense charged therein if such is supported by legally sufficient trial evidence (emphasis added), or if it is not, the greatest lesser included offense which is supported by legally sufficient trial evidence (emphasis added)."

There are two perspectives on whether you should make a TOD motion if the only argument is that the proof is insufficient to support the top count, but not a lesser.  On the one hand, there is the "better safe than sorry" view (which is my perspective, so I still make the motion).  That view will help alert the court and perhaps future appellate counsel to the issue, and perhaps confirm what you raised in earlier motions, hearings and argument.  The alternative view is that it may be a frivolous motion since the law does not support dismissal on such a TOD.  For a lengthier discussion of this issue, see
. My view - you should continue to make your TOD motions challenging the sufficiency of the prosecution's proof, even if it only gets you to a lesser, but also request the court not read the top count(s) not supported by the proof.

Tuesday, May 8, 2012

People v Kent - Important Child Pornography decision holds that viewing is not procurement, and "cache files" are not knowing possession

Today's Court of Appeals decision (People v Kent  #70, 5/8/12) has two very important components.

First - proving a defendant has "cache files" on his computer isn't enough to prove that he knew he had such files saved on his computer.
Second - "merely viewing" child pornography is not possession or procurement.

Cache files are created when a user visits a website.  The computer typically stores that page on the computer.  That way it doesn't need to be downloaded it the next time.  This makes web browsing faster.  Caches are typically created of images as well.  The CoA in Kent discussed "the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files.  We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."

In other words, if the People cannot prove that your client knew how web browsers work, at least to the extent that they store cache files, then they cannot prove their case.  This can be a serious problem - if the defendant knew how to prevent cache files from being generated, he might have prevented prosecution.  So in most cases, the DA needs to prove that defendant knew a little, but not a lot.  Even more importantly, looking at child pornography isn't enough to warrant prosecution under this section.  "We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law."

The facts are these: a professor complained that his computer didn't work.  IT people found kiddie porn on the computer.  The porn was "cached" (i.e. stored automatically) under a screen name matching the defendant's first name.  "There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache."  There was also a subfolder with the defendant's initials and "porndef" containing somewhere between 15,000-30,000 images of underage girls in lingerie. 

Then there were messages which the Court discussed:

"The JK folder held a file labeled "porndef.pb," which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient "P.B." As the Appellate Division noted, it is unclear whether these messages were ever sent.   The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as "sooner or later someone at this college is going to wonder why I keep looking at porno sites."  A final message dated July 11, 2001 states:

“Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion. “I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them. You have the URL's if you want to pursue it. “See you sooner or later, no doubt. Kent.”"

A graphic video of children engaging in sex acts would also prove to be something of a problem. 

The Appellate Division had upheld the conviction, although it was concerned with whether the "cache" was enough to prove possession.  The Court of Appeals noted that the"[AD] adopted the view, however, that 'a Web page stored in the cache is evidence of past procurement of the images on that page.'"  In other words, the cache wasn't so much possession in and of itself, it was simply proof that the defendant had accessed the images, and thus 'possessed' them earlier.  The key holding:

"Defendant argues that merely "accessing and displaying" Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15.  Defendant further contends that his possession convictions are invalid because Penal Law §263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache.  For the reasons that follow, we agree with defendant's first proposition.  We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache.  We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."

The court held: "that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession."  The court reviewed relevant Federal statutes.  Of course, the defendant didn't benefit much from the decision:

"We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the "Arina" video, and possession of 132 images of child pornography recovered from the unallocated space on his computer.  Investigator Friedman's testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them.  Thus, viewing the evidence in the light most favorable to the People, a rational fact finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]).  That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant's messages to "P.B." discussing the pornographic content of the images and sites defendant perused."

Judges Graffeo and Pigott dissented from the core holding.  Judge Smith addressed her position in a concurrence:

"Under Judge Graffeo's reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free -- someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer -- is subject to up to seven years in prison for a first offense (    see Penal Law § 70.00 [2] [d]).  This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs."

Monday, May 7, 2012

Licence Restored Where Video of Driver After Arrest Shows No Basis for Driving While Intoxicated and Driving While Impaired Charges

In Matter of Fermin-Perea v. Swarts (2012 NY Slip Op 03514 [First Dept 5/3/12], by a 3-2 vote the Appellate Division, First Department granted an Article 78 petition nullifying the DMV's revocation of a license after a refusal to submit to a chemical test, because the video of the defendant/Petitioner taken 25 minutes after his arrest did not display any indicia of impairment or intoxication. The majority explained
The arresting officer's refusal report, admitted in evidence at the hearing, indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and "a strong odor of alcoholic beverage on [his] breath." However, the field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with thearresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer's commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication. Certainly, the contents of the arresting officer's refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer's testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, where, as here, a field sobriety test conducted less than 30 minutes after the officer's initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent's determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] ["If the agency's determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled"]). A field sobriety test is "accepted within the scientific community as a reliable indicator of intoxication" (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent's determination is not supported by substantial evidence. ,,,,, it is simply unreasonable and uninferable that petitioner was intoxicated or impaired while operating his motor vehicle and yet, 25 minutes later he successfully and without any difficulty passed a field sobriety test. Matter of Whelan v Adduci (133 AD2d 273 (1987], lv denied 70 NY2d 616 [1988]) is inapposite. Matter of Whelan simply stands for the proposition that a police officer's observation of blood shot eyes and alcohol on an operator's breath constitute reasonable grounds to believe that the operator is intoxicated or impaired (id. at 273); a proposition with which we agree and is aptly supported by the case law (see Matter of Nolan, 166 AD2d at 278). However, as is the case here, the court in Matter of Whelan was never confronted with evidence that shortly after the officer's observations of intoxication or impairment, the operator successfully completed a field sobriety test.

Thursday, May 3, 2012

SORA Registration Requirement Need Not Be Challenged Via Article 78

The Court of Appeals today, in People v Liden (#67) determined that an Article 78 proceeding is not the only valid way to challenge a determination by the Board of Examiners of Sex Offenders that he must register as a sex offender.

Ordinarily such a determination is a simple matter of reading the statute.  If the defendant is convicted of certain listed crimes, he must register as a sex offender.  For out of state convictions, however, a determination must be made.  The Board, and Appellate Divisions, had taken the position that this was an administrative determination, which can only be challenged via article 78.  My own view was that this was an obvious due process violation, as the defendant's status as a sex offender was determined at a proceeding which denied him notice and an opportunity to be heard (much as the original SORA classification process struck down in People v David W, 95 NY2d 130 [2000] [holding that the availability of an Article 78 was insufficient to satisfy the requirements of due process as to the level of classification]).  If an article 78 is insufficient to secure the defendant's right to due process regarding what kind of sex offender he is, it seems to me that it is also insufficient to secure the defendant's right to due process regarding whether he is a sex offender at all.

The Court of Appeals today determined that permitting the defendant to challenge - during the SORA classification hearing - the Board's decision that he was required to register was simply a good policy.  It held that "A determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender's risk level." 

It helped that all of the parties agreed that the defendant should not have been required to register, and that he was classified a level three, the highest classification.