Sunday, September 29, 2013

Statutory Language Cannot Be Simply Ignored By Prosecutors

One would think that the proposition that District Attorney cannot ignore or flaunt unambiguous statutory language is not a remarkable proposition. Indeed, as attorneys who prosecute others for acting as though adherence to the the strict requirements of law is only optional, one would think that prosecutors would be sticklers for compliance with statutory language. As detailed below, however, the Monroe County District Attorney's office apparently believed that it could ignore the statutory provisions regarding a defendant's right to testify at the grand jury and instead, unilaterally impose its own set of requirements and conditions for a defendant's right to testify. Even worse, trial judges, and many defense attorneys in Monroe County acquiesced in this lawless deprivation of defendants' rights. Finally, as detailed below, the Appellate Division, Fourth Department, in People v Brumfield (2013 NY Slip Op 06120 [4th Dept  9/27/13]), held that the District Attorney cannot validly refuse to permit a defendant to testify at the grand jury where the defendant has complied with the statutory requirements, but refused to agree to the additional waivers sought by the District Attorney.

The Criminal Procedure Law provides that a defendant had a right to testify at a grand jury if a defendant serves upon the People a notice of his intent to testify before the grand jury, appears at the appropriate time and place, and signs and submits to the grand jury "a waiver of immunity pursuant to [CPL] 190.45," the defendant "must be permitted to testify before the grand jury" (CPL 190.50 [5] [b]). CPL 190.45 (1) provides that a waiver of immunity "is a written instrument" in which a person who is to testify before the grand jury stipulates that he or she "waives [the] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to [CPL] 190.40, as a result of giving evidence in such proceeding."

The Monroe County District Attorney has a waiver of immunity form that added six paragraphs of waiver of rights not set forth in the statute.  Included in this form are paragraphs in which the defendant states (1) that he understands "that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or area of conduct; (2) that he understands that by signing the form he gives "up all immunity and privilege to which [he] would otherwise have been entitled under the provisions of the United States Constitution, the Constitution of the State of New York, as well as any applicable statutory provisions"; and (3) he does "consent and agree tot he use of any testimony given by me before the Grand Jury or evidence hereby produced by me upon any investigation, hearing, trial, prosecution, or proceeding."

There is nothing wrong with the prosecutor seeking to have defendants waive additional rights. But it is difficult to understand why the defendant would want to sign that form when there is nothing offered to the defendant in exchange for giving up additional rights. Yet, most attorneys in Monroe County acquiesced to this request and had their clients sign the Monroe County District Attorney's form.

On attorney who resisted was Assistant Monroe County Public Defender John Bradley, who saw no reason for his client to waive more that the statue requires and who did not believe that the prosecutor could ignore that statute and unilaterally impose additional conditions before his client could testify. His client, Mr. Brumfield, agreed.So when the ADA presented Brumfield with the Monroe County District Attorney's waiver of immunity form containing three parapgraph not required by statute, Brumfield deleted six paragraphs from that form and then signed the form before a notary public.

Despite Mr.Brumfield having fully complied with the statutory conditions for him to testify at the grand jury, the The District Attorney refused to permit Brumfield to testify before the grand jury. Brumfield then moved to dismiss the indictment obtained against him on the ground that his right to testify at the grand jury had been violated.Seems like a fairly easy motion pursuant to CPL 190.50 [5] [c]. Disappointingly, however, the trial court judge, denied the motion finding that  the signed waiver of Brumfield's privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40 was not a valid waiver.

This decision was reversed on appeal by the Appellate Division, Fourth Department,  which held that
the paragraphs in the waiver of immunity form that defendant left intact stated that defendant waived his privilege against self-incrimination and any immunity to which he would otherwise be entitled pursuant to CPL 190.40. Thus, defendant signed a waiver of immunity form that complied with the requirements of CPL 190.45 (1) and was therefore required to be permitted to testify before the grand jury (see CPL 190.50 [5] [b]). It is well settled that a defendant's statutory right to testify before the grand jury " must be scrupulously protected' " (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant's motion to dismiss the indictment. We therefore reverse the judgment of conviction, grant the motion, and dismiss the indictment...
There is nothing in this decision which precludes the District Attorney from continuing to use the form. Hopefully, however, attorneys  will  no longer agree to sign this waiver form and defendants who refuse to sign the form will no longer be penalized.

Great work by David Juergens on the appeal.

Sunday, September 22, 2013

Crime and Punishment, Part 2; Where you end up usually depends on where you start

The other catalyst was Steve Earle’s “Ellis Unit One,” written from the perspective of a regular-Joe, death row prison guard who’s not handling the stress of his job real well:

. . .Last night I dreamed that I woke up with straps across my chest,
And something cold and black running through my lungs,
And even Jesus couldn’t save me, though I know he did his best,
But he don’t live on Ellis Unit One.

So he sees elements of his condemned charges in himself, and visa versa.  But the juries who condemned the same men did not experience this same level of commonality.  Instead, those juries saw not shared traits, but “otherness” sufficient to warrant exterminating the menace.  But what is the capacity of juries asked to weigh mitigation evidence to truly appreciate and consider another’s circumstances? According to David Eagleman, PhD, a neuroscientist at the Baylor College of Medicine and director of the Laboratory for Perception and Action ( and the Initiative on Neuroscience and Law (, it’s pretty limited.  In his thought-provoking 2012 article for The Atlantic titled “Brain on Trial,” ( he addresses the precepts of accountability, responsibility, and the punishments that flow from what science is revealing to be the flawed assumptions upon which the criminal justice is grounded:
Many of us like to believe that all adults possesses the same capacity to make sound choices. It’s a charitable idea but demonstrably wrong.  People’s brains are vastly different. 
Every mitigation jury needs to hear this, if not verbatim, than in sum and substance.  What follows is the best two-page summary of how biologically-imposed impediments to free will compel consideration of mitigation evidence in criminal justice sentencing that I have seen.  This section concludes with the following:
It is problematic to imagine yourself in the shoes of someone breaking the law and conclude “Well, I wouldn’t have done that” – because if you weren’t exposed to in utero cocaine, lead poisoning, and physical abuse, and he was, then you and he are not directly comparable.  You cannot walk a mile in his shoes. 
Of course you wouldn’t have done that.  Who would? And why? Eagleman’s article and his research included on the above websites provides science-based answers to these questions that juries asked to evaluate mitigation evidence wrestle with.

He examines not only the concept of free will, but just as importantly, “free won’t” – whether one has the ability not to act, and the concept of “choice” as affected by the spectrum of an individual’s neurobiology, and how those limitations butt up against the mostly one-size-fits-all approach to accountability based on a defendant’s “choices.”

I read in the article a challenge for criminal defense practitioners to do a better job of educating jurors concerning the reasons why the criminally accused acted as he or she did, which not infrequently, as Eagleman notes, are based on “the unique pattern of neurobiology inside each of our heads [that] cannot qualify as choices; these are the cards we’re dealt.”  So are the defendant's deficiencies a product of nature or nurture?  It doesn't matter, as Eagleman notes when consdering accountability, since the defendant had no choice in either one.

Maybe even more important is the idea of helping jurors understand why they are particularly poorly-equipped to accurately weigh the extent and effect of a defendant’s limitations.  I think we generally do a sub-par job of this, perhaps because many of our assumptions and stuff we think we know (assumptions shared by, and taken for granted by jurors as true) are proven, as science advances, to be just plain wrong (think factors in reliability of eye-witness identification: mind like a video camera/never forget a face/better powers of observation under stress ).

David Eagleman’s research provides a empirical basis to address the “pull yourself up by your own bootstraps/self-determinism/wholly independent actor” arguments that, while appealing to juries, are misleading and just plain wrong.  Next time you have to think about mitigation, you could do worse than spending an afternoon on the websites listed above.

Crime and Punishment, Part 1

A couple of things (not counting but maybe not unrelated to the new Pope’s turn toward inclusiveness – what Frank Bruni in this morning’s NYT called “a refreshing example of humility in a world with too little of it”) got me thinking about crime and punishment, forgiveness (or not), how our criminal justice system deals with offenders, and whether the results are equitable, or rational, or based on sound premises.

This was the first.  Alan Rosenthal, of the Center for Community Alternatives, passed along this petition in support of compassionate release for nearly-74-year-old attorney Lynn Stewart, who is dying in prison of stage 4 cancer.  As Alan noted:
I have had friends and clients who have died in prison, separated from family and loved ones. The very thought that we allow this to happen is shockingly inhumane and deplorable in a “civilized” society.  Beyond politics and personal disagreements, this is about humanity - our humanity . . . What I [] ask is that you each, in a time of quiet reflection, ask yourself if anyone should be left to die in the darkness and loneliness of prison.  
New York City attorney and fellow NYSACDL member Paul Layton went on to note that:
Even if one disagrees with Lynn’s politics and abhor the conduct that led to her conviction as I do, it was in my opinion, a travesty for her sentence to have been enhanced and more importantly, Lynn would sign for you because she believes in standing together as lawyers for colleagues.  I know her family and they are warm wonderful people.  I know Lynn and she is warm and courageous and took cases and fought them and gave ‘em hell.  She was a great lawyer and remains one of our Bar's heroic warriors.  So I signed, and consider setting aside any differences of opinion regarding her politics, as I did,  to stand with her family and with one of our own. We can afford compassion, which has become rare in some circles, but remains the touchstone of the criminal defense Bar.
The petition can be found here:

Tuesday, September 17, 2013

A turn for the worse - pretext stops and the 99 foot signal

By Jill Paperno
Second Assistant Monroe County Public Defender

As the weather turns, it appears that the Rochester Police Department is embracing new methods of engaging in pretext stops.  So we see less stops for walking in the street when the sidewalk was available, and failure to have a bell on a bike (which are only ticketed in certain parts of the city as far as I can tell – I haven’t seen any in the Browncroft, Park Avenue or South Wedge areas, for example).  And we are now becoming familiar with the requirements for when to signal a turn (also apparently not an issue in the aforementioned areas).  Unfortunately, New York law permits pretext stops and turns a blind eye to the racial disparity in how the stops are conducted (People v. Robinson, 97 N.Y.2d 341, 346 [2001])

The most common pretext stop I have seen recently is the “failure to signal a turn within 100 feet.”  These are cases in which our clients have signaled a turn, but the officer claims it wasn’t soon enough.  This violation is set forth in 1163(b) of the Vehicle and Traffic Law, which states that:
(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section eleven hundred sixty, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided. (b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. 
Of course, sometimes people decide to turn at the last minute.  And many of us do not signal a turn prior to 100 feet, or do not even know what the 100 feet distance looks like.  And I’m guessing, if you live in a suburb (or the aforementioned areas) you can turn at the last minute and not know how to measure 100 feet without getting stopped.  But there are segments of our population who are stopped every day, and then detained for lengthy periods, as police create excuses for searching their vehicles following the failure to signal prior to 100 feet.  (My favorite recent excuse for a search - the passenger was moving his hands toward the center console while the car was being driven!)

Although police may stop a vehicle when there is a legitimate traffic violation, their authority to detain the vehicle and search are not unfettered.  We often cite People v. Marsh when opposing these extended stops and searches.  In Marsh the Court of Appeals stated:
The search for weapons is a special exception to the proscription against warrantless searches, and it should not be extended beyond its purpose of securing the safety of the officer and preventing an escape. A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted. We can only conclude that, even though the ‘rules of criminal law are generally applicable’ to traffic violations (People v. Byron, 17 N.Y.2d 64, 66), the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction. (cites omitted).
People v. Marsh, 20 N.Y.2d 98, 101-02 (1967). 
Once the police stop a vehicle for a traffic violation, if there is no additional basis for stopping, detaining and searching, the police must issue the traffic ticket and let the person continue on his or her way.  In People v. Banks the Court of Appeals stated:
A traffic stop constitutes a limited seizure of the person of each occupant (cites omitted). For a traffic stop to pass constitutional muster, the officer’s action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance (emphasis added, cites omitted) . While the stop was justified in the instant case, the length and circumstances of the detention were not. Consequently, the evidence ultimately seized must be suppressed (cite omitted). 
Trooper Cuprill’s observations of Jones’ seat belt violation justified the initial stop of Jones and defendant in the vehicle. However, once Cuprill’s license and stolen vehicle radio check came back negative and he prepared the traffic tickets for the seat belt violations, the initial justification for seizing and detaining defendant and Jones was exhausted (cite omitted). The Trooper nevertheless retained their licenses, effectively forcing them to remain at the scene while he awaited the appearance of the backup Trooper he had requested. This continued involuntary detention of defendant and Jones and their vehicle constituted a seizure in violation of their constitutional rights, unless circumstances coming to Cuprill’s attention following the initial stop furnished him with reasonable suspicion that they were engaged in criminal activity (cites omitted)Contrary to the holdings of the courts below, defendant’s nervousness and the innocuous discrepancies in his and Jones’ answers to the Trooper’s questions regarding the origin, destination and timing of their trip did not alone, as a matter of law, provide a basis for reasonable suspicion of criminality (cites omitted).  
People v. Banks, 85 N.Y.2d 558, 562 (1995).

In People v. May, the Second Department further detailed what police may and may not do during a traffic stop, citing Banks:
To begin, the officers’ initial approach of the Impala, their request for limited information and documents, and their detention of the vehicle for purposes of calling in a computer check and drawing up a summons were proper based upon the traffic violation (cites omitted). However, a traffic stop constitutes a limited seizure of a vehicle’s occupants (cites omitted), and the length of any subsequent detention must be reasonably related to the circumstances which first justified the stop (cites omitted).
In Banks, the Court of Appeals reversed a denial of the defendant’s suppression motion where the defendant’s car was pulled over on the Thruway for a seat belt violation, and thereafter detained while the Trooper who stopped them called for back-up to search the vehicle. The Court held that
the defendant’s nervousness and the innocuous discrepancies between the driver’s and the passenger’s answers regarding the origin, destination and timing of their trip did not provide a basis for reasonable suspicion of criminality (cite omitted). In Barreras, this Court reversed the denial of the defendant’s suppression motion, where the defendant’s car had been pulled over for going through a stop sign, and although his papers were in order, the officer, suspecting further illegality but unable to supply an objective reasonable foundation for his suspicion, continued his questioning and then asked for permission to search the car. We held that “ ‘[o]nce defendant’s papers were all found to be in order, the officers, without more, were obligated to issue the stop-sign summons and allow defendant to resume his journey, i.e., the initial justification for seizing and detaining defendant ... was exhausted’ (253 A.D.2d at 373, 677 N.Y.S.2d 526).” 
People v. May, 52 A.D.3d 147, 150-51 (2008).

What can be done do to challenge these stops short of a New York City style class action?  Investigate and litigate.

First, when you get one of these cases, check to see if there are any city surveillance videos in the area, and even perhaps red light cameras.  To determine whether there is an RPD video camera nearby, contact Corporation Counsel and email your request to the attorney who handles RPD matters, asking whether there was a camera in the area, and asking that any video be preserved.  You should do this as soon as possible, as the video is only preserved for a limited time.  You must then obtain a judicial subpoena duces tecum to obtain the video.  Even if the video does not reflect the signal or lack of signal, it might reflect other facts inconsistent with the officers claims about your client’s conduct.

Next, consider having an investigator measure the distance of 100 feet in the area, and getting aerial views of the area.  Check the local businesses to see if they have video cameras.  I am guessing that the police are overestimating the 100 feet distance.  So, if Wikipedia is right and a full size car is 197 inches, then the distance is about 6 car lengths.  Then note the buildings and other landmarks in the area.  Can the officer identify where the signal was first turned on?  Of course they can’t - first, because they won’t remember the area, and second, probably, because your client actually did signal enough in advance.

Make sure you move for the suppression hearing.  This is going nowhere if you aren’t moving to suppress whatever was seized.  And remember, if your client is a passenger, you have a right to challenge the stop of the car.  (People v. Millan, 69 NY2d 514).

At the hearing,  consider introducing the overhead map of the location and having the officer mark where the stop occurred if you believe the officer cannot do it, or if the officer is likely to estimate incorrectly.  Have your investigator ready to testify to the location of the 100 feet mark.  Consider whether there are other reasons the defendant may not have signaled - they had just decided to turn for some reason (not to do with the police following them - left the potato salad on the counter, forgot to put the garage door down, hankering for an ice cream).  If you have videos, review them before the hearing and listen for whether the officer’s testimony is inconsistent with the video.  Consider introducing the video as evidence to discredit the officer as to locations, times, actions, physical features of the area, etc.  If the officer followed the defendant for a lengthy period just waiting for an opportunity to stop him/her (probably him), cross examine the officer about all of the things your client did right - stopping at lights or signs, signalling other times, etc.

Remember that even if the police had a right to stop the car for the traffic violation, the stop must be limited, and the police cannot ask if the defendant had a weapon based solely on the traffic stop.  “Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.”  People v. Garcia, 20 N.Y.3d 317, 324 (2012).

The language of People v. Edwards, where the Court of Appeals injected “objective reasonableness” into this morass of race-based traffic stops presents a formidable hurdle to get over when challenging such stops:

“The initial stop of defendant’s vehicle was permissible and the police officers’ subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers’ actions (see, People v. Wright, 98 N.Y.2d 657, 658–659 [2002]; People v. Robinson, 97 N.Y.2d 341, 350 [2001]).” People v. Edwards, 14 N.Y.3d 741, 742 (2010).

Saturday, September 14, 2013

When, if ever, can a prosecutor properly argue that the type of evidence they normally rely on to obtain convictions is unreliable?

By Jill Paperno
Second Assistant Monroe County Public Defender

A prosecutor may not intentionally mislead and does not have unfettered discretion as to how to present or characterize evidence in a case, due to the prosecutor’s dual role as both an advocate for the prosecution and public officer.  Although we often cite People v Pelchat, 62 NY2d 97, in our motions relating to grand jury review, it is worth rereading the case that related to a prosecutor’s failure to clarify misleading information before the grand jury.

Some important language from the case:
It is familiar doctrine that a prosecutor serves a dual role as advocate and public officer. He is charged with the duty not only to seek convictions but also to see that justice is done. In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts, a duty which he violates when he obtains a conviction based upon evidence he knows to be false. Such misconduct may impair a defendant's due process rights and require a reversal of the conviction (see, e.g., People v Robertson, 12 NY2d 355; People v Savvides, 1 NY2d 554; People v Creasy, 236 NY 205; Napue v Illinois, 360 US 264; Alcorta v Texas, 355 US 28). 
People v Pelchat, 62 NY2d 97, 105 [1984].

With respect to information clearly known to the prosecutor, the law is clear – a prosecutor may not misrepresent.  The Supreme Court in Miller v Pate, 386 US 1, 6-7 (1967) stated:
The prosecution deliberately misrepresented the truth.  More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v Holohan, 294 US 103. There has been no deviation from that established principle. Napue v People of State of Illinois, 360 US 264; Pyle v State of Kansas, 317 US 213; cf. Alcorta v State of Texas, 355 US 28.  There can be no retreat from that principle here.
In People v Whalen the Court of Appeals, reversed the conviction and addressed the prosecutor’s mischaracterization of facts not even presented to the jury (defense counsel’s issuance of a notice of alibi):
Defendant, however, raises another argument that does require reversal. The prosecutor's conduct during summation was improper and prejudicial to defendant. The prosecutor repeatedly characterized defendant's alibi as a fabrication concocted during trial, notwithstanding the notice received months earlier and his knowledge that both defendant and his wife had been advised by counsel not to discuss anything with the police. This in itself violated the  prosecutor's obligation to seek justice, rather than conviction (see Code of Professional Responsibility, EC 7–13). 
People v Whalen, 59 NY2d 273, 280-81 [1983].

Similarly, a prosecutor may not create a false impression concerning evidence or facts.  In People v Wise, 74 AD2d 929 the Second Department reversed defendant’s conviction because the prosecutor created the false impression that the defense expert’s failure to review grand jury minutes was a failure in professionalism, implying grand jury minutes were always available to the defense.

In People v Novoa the Court of Appeals found the prosecutor’s mischaracterization of a benefit conferred on a witness, in addition to other prosecutorial misconduct, required reversal:
The trial assistant’s failure to reveal the promise in the first instance, her failure to correct Ortiz's misstatement that she had been promised nothing with respect to her pending case, and her own affirmative mischaracterization in the summation (emphasis added) constituted both a denial of defendant's rights and a breach of her own obligations as an officer of the court (see, People v Pelchat, 62 NY2d 97).
People v Novoa, 70 NY2d 490 [1987].

In People v Cotton, the Second Department reversed based on the prosecutor’s argument which was premised on inaccurate factual assertions:
The interest of justice is disserved when, as here, a prosecutor during summation advances a theory premised on a fact that he knows to be false in order to discredit the defendant's justification defense (see, People v Lantigua, 228 AD2d 213). It is undisputed that the prosecutor knew that the .32 caliber gun, which the defense contended the decedent aimed at the defendant, was inoperable. Yet, in attacking the defendant's justification defense, the prosecutor argued on summation that if the decedent had drawn a gun as the defendant contended, the defendant would not have had time to turn around, take two or three steps, receive a gun from someone in the crowd, turn back and fire four bullets before the decedent was able to fire a single shot. 
People v Cotton, 242 AD2d 638 [1997].

The Seond Department reversed another conviction in People v Spann, where the evidence did not clearly establish the particular location of a gun.  In Spann, the court criticized the prosecutor’s claim that the gun was found beneath the passenger seat:

As there was no evidence to establish that the handgun was found beneath the front passenger seat as opposed to the front driver's seat, the prosecutor misstated the evidence during summation when he told the jury on 14 occasions that the handgun had been found beneath the front passenger seat where the defendant was sitting (see People v Brown, 256 AD2d 414, 416; People v Cotton, 242 AD2d 638, 638–639; People v Cobb, 104 AD2d 656, 657).

People v Spann, 82 AD3d 1013, 1015-16 [2011].

In Spann the Second Department seemed to address the more subtle situation presented when the evidence is not directly inconsistent with a prosecutor’s claim, but the prosecutor argues facts that are not supported by the evidence.

A similar type of error occurs when a prosecutor argues different and inconsistent theories of culpability in codefendants trials.  In such situations, the prosecutor may be relying on evidence that exists in the case, but characterizes it differently depending on what suits the prosecutor’s theory, even if the arguments made in both cases are  mutually inconsistent (see, e.g., Smith v Groose, 205 F3d 1045, 1050 [8th Cir 2000]; Thompson v Calderon, 120 F3d 1045 [9th Cir 1997], rev’d on other grounds 523 US 538; United States v Salerno, 937 F2d 797, 812 [2nd Cir 1991], rev’d on other grounds, 505 US 317 [1992].

A prosecutor is, however, permitted on summation to make fair comment on the evidence and to respond to defense arguments – within the bounds of their ethical obligations (People v Hilliard, 279 AD2d 590 [2001]).

If the prosecutor makes assertions at trial or creates impressions that are counter to the  records you have from discovery or other information that the prosecutor is aware of, even if that information is not in evidence, consider making a motion for a mistrial pursuant to Pelchat, as well as your client’s right to a fair trial and due process as protected by the New York State and United States constitutions.  When you make the motion, mark and make a part of the record the police reports or other documents that demonstrate the information the prosecutor has that contradicts what they are claiming.

Thursday, September 12, 2013

CPL 710.30 - Observations about observations

By Jill Paperno
Second Assistant Monroe County Public Defender

CPL § 710.30 requires the prosecutor to provide notice to the defense within a statutory period when the prosecutor intends to offer a witness who has previously engaged in a police arranged identification procedure, when the witness will be testifying to…what?

We know that if the identification procedure was not confirmatory, the identifying witness cannot engage in an in-court identification of the defendant if there has been a previous out-of-court identification procedure. Or if the procedure was suggestive and there was no independent basis.  But can a witness come in, describe events, describe the appearance of the person they observed, and not identify, if there has been no § 710.30 notice or Wade hearing?

Since this happened in a recent case, prosecutors may be seeking to skirt the § 710.30 rules in future cases and I wanted to offer some suggested responses.

CPL § 710.30 states that:
Whenever the people intend to offer at a trial…(b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered. [emphasis added]
The statute does not state that the notice is only required if there is going to be an in-court identification.  So if a witness comes in and describes someone engaging in conduct, and describes the appearance of that person who apparently shares physical characteristics with your client, but doesn’t identify your client, that is still testimony that requires a prior 710.30 notice?  If the testimony was not an observation of the defendant, then it wouldn’t be relevant to your case and therefore inadmissible on that basis, right?  

If you hear that an eye-witness is about to testify at trial and there has been no § 710.30 notice, but there was an identification procedure, move to preclude the testimony on § 710.30 grounds, as a violation of your client’s right to due process as protected by the New York State and United States constitutions, and on relevance grounds, because if the observation didn’t relate to your client, the testimony is not relevant.  Do not ask for a Wade hearing in the middle of trial, as you will then forfeit your preclusion issue on appeal (and you’re not likely to win a Wade hearing, are you?).

Pursuant to People v Kirkland, 89 NY2d 903, 904-05 [1996]:
When the People intend to offer identification testimony from a witness, a notice of intent must be served upon the defendant specifying the evidence which the People intend to offer” (CPL § 710.30). The notice requirement is excused when a defendant moves for suppression of the identification testimony (CPL § 710.30[3]; People v Merrill, 87 NY2d 948; see also, People v Lopez, 84 NY2d 425).  Since the defendant here moved to suppress the identification testimony and received a full hearing on the fairness of the identification procedure, any alleged deficiency in the notice provided by the People was irrelevant.
If you find yourself in a situation where the witness is allowed to testify not only to the events, but that the individual he saw bore a resemblance to a famous star (say, a famous rapper), consider obtaining a picture of the rapper, marking it as a court exhibit and making it part of the record, as well as a photo of your client – preferably the one viewed by the witness to demonstrate the similarity – so that it is clear to the appellate court that this was not only testimony about observations of your client, but also clearly identification testimony.  I am not suggesting the photo be displayed to the jury – to the contrary – but just that you preserve the picture for the appellate court’s consideration.

If you lose these arguments, you may wish to append that photo to a motion for a mistrial.  

A prosecutor might argue that People v Grajales stands for the proposition that a § 710.30 notice is not required prior to such quasi-identification testimony.  If so, you might consider the following from People v Nolasco, 70 AD3d 972 [2nd Dept 2010]:
Contrary to the People’s contention, the Court of Appeals’ decision in People v Grajales, 8 NY3d 861, does not excuse their failure to provide such notice. In Grajales, the People provided timely notice pursuant to CPL 710.30(1)(b) that they intended to offer identification testimony from a complainant who had previously made a point-out identification, but the notice failed to mention a pretrial photographic identification made by the same complainant (Id. at 862).  The Court in Grajales held that since the People could not have intended to offer the inadmissible photographic identification at trial, the notice pursuant to CPL § 710.30(1)(b) omitting that information was not inadequate for failing to specify this identification (Id.).  Here, no statutory notice whatsoever was given by the People as to their intent to offer “testimony regarding an observation of the defendant ... at the time or place of the commission of the offense” to be given by Jose, “a witness who has previously identified him as such” (CPL 710.30[1][b]; see People v Smothers, 20 Misc3d at 658–659).  Furthermore, and contrary to the People’s contention, inasmuch as the only motion made by the defendant that could be deemed a motion to suppress Jose’s identification testimony was based on an incident in the courtroom during trial that was wholly unrelated to any pretrial identification, this case does not fall under the exception to the preclusion rule set forth in CPL § 710.30(3) (cf. People v Kirkland, 89 NY2d 903, 904–905). Accordingly, the denial of the defendant’s motion to preclude Jose’s in-court identification deprived him of a fair trial.

Wednesday, September 11, 2013

When jurors don't hear all the testimony

Judiciary Law § 510 provides that to be qualified as a juror a person must: (1) be a citizen of the United States, and a resident of the county, (2) be not less than eighteen years of age, (3) not have been convicted of a felony, and (4) be able to understand and communicate in the English language.  Under this section, a hearing impaired juror may sit, but only if he or she “is capable of doing what jurors are supposed to do,” including hearing and evaluating the testimony through lip-reading, use of assistive devices, or other means (People v Guay, 72 AD3d 1201, 1202 [3rd Dept 2010], citing People v Guzman, 76 NY2d 1, 5 [1990]; see CPL § 270.20 [1][a]; Judiciary Law § 510).

In Guay, the Third Department affirmed defendant’s conviction after the trial court dismissed a prospective hearing-impaired juror over defense objection, who the court determined would likely be unable to hear the testimony.  Affirming the Third Department’s holding, the Court of Appeals held that “this case is not akin to Guzman where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim,” since in Guay, no alternative accommodations were requested or discussed (People v Guay, 18 NY3d 16, 23 [2011]).

Along these lines, the Fourth Department noted that “[i]t is well established that ‘[a] juror who has not heard all the evidence is grossly unqualified to render a verdict’ ” (People v Jean-Philippe, 101 AD3d 1582 [4th Dept 2012], citing People v Hymes, 70 AD3d 1371, 1372 [4th Dept 2010], lv denied 15 NY3d 774 [2010] and People v Williams, 202 AD2d 1004 [4th Dept 1994]).

In Jean-Philippe, the trial court made a valiant but unsuccessful attempt to save the conviction when it quizzed a sleeping juror about whether she “missed any relevant or important . . . parts . . . of the testimony” and “heard everything that [she] need[ed] to know thus far” (while she was sleeping?).   The Fourth Department noted that “because there were no alternate jurors at the time, the dismissal of a juror would have required a mistrial” however “it was incumbent upon the court to dismiss that juror, even though that dismissal would have necessitated a mistrial.”  Even though it was really, really hard.  Even though it meant starting all over.  Even though the temptation to press on as if things were OK must have been overwhelming.

A juror who cannot hear the testimony is unable to understand the testimony and is therefore incapable of “doing what jurors are supposed to do.”  Such a juror is unqualified to serve under Judiciary Law § 510 and must be excused.

In an interesting aside, defense counsel is not held to this same lofty standard.  Not until counsel has been “repeatedly unconscious through not insubstantial portions” of even capital murder trials will prejudice to the defendant be presumed (see, Muniz v Smith, 647 F3d 619 [6th Cir 2011]; Burdine v Johnson, 262 F3d 336, 340-41 [5th Cir 2001]; Tippins v Walker, 77 F3d 682, 685 [2nd Cir 1996]).  But one juror taking a little cat nap (it’s warm in those courtrooms, had a big lunch, counsel drones on, 11 others to pick up the slack, what’s the big deal?) requires reversal?  Doesn’t seem right.

And speaking of guns . . . How much is the gun industry worth?

Check out the “The Business of Guns, recently published by Minute MBA at:  This short but informative video illustrates the financial might of the gun industry in the United States.  So much for a "well regulated" militia.  Thanks to Minute MBA for passing this along.

Shotspotter - Now you see it, now you don't

By Jill Paperno
Second Assistant Monroe County Public Defender

The NSA is not the only organization that monitors the day to day activities of citizens.  But you already knew that.  One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.”  The company that created this device refers to it as a “gunshot detection system.”

The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds.  Shotspotter was created and is run by a company in California.  The website is

Although Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial.  Conversely, don't let the DAs get it in without a fight if it hurts your case.

Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired.  In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum.  (The company is not a governmental agency.)  Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.

After initially being told service would be accepted, I forwarded a subpoena to the company.  After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots.  The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots.  What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial.

Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records.  I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer.  So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past.  However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation.  And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness.  No worries – we were told that members of Rochester Police Department could lay the foundation.  Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another.  Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!!

The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted.  (The number of shots might have established the difference between a shootout and what they described as an execution.)

My understanding of how the system presently works in Rochester (and this may differ from the past)  is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.

According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts  Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”

What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology.  During my trial the representatives in California said RPD owned it and California cannot certify.  And eventually they stopped communicating with me completely.  But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program.

So if you have a case with Shotspotter in which you want the Shotspotter information in:

1.  Contact Shotspotter in California and ask if they have the records;.
2.  Find out who you must subpoena (see if they have a New York liaison);
3.  Do the subpoena;
4.  Do this all well in advance;
5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative).
6.  Review other states'  Frye cases to support your claim of admissibility.  You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye”  failed to produce cases that addressed admissibility under Frye/Daubert.  One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)

If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording.  (Yes – they get the records somehow.  And they listen to the recordings.)  But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.

More often, we're trying to keep the information out.  If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling.  Challenge the admissibility of any Shotspotter information and request a Frye hearing.  Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works.  According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible.  Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information.  (And if it is not, please let me know!)

Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records.  According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring.  (Interesting, since they claim to have no control over the system…)  The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns.  Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department.

This quote can be found on the website at:

So don't forget to also subpoena camera footage from the city (with a judicial subpoena duces tecum).  This should be done as quickly as possible after entering the case - don't wait for responses from Shotspotter. You can determine whether city surveillance cameras were nearby by contacting Corporation Counsel's office. If they were, request that the RPD Corporation Counsel liaison preserve the footage, and get a quick subpoena out.