People v Smith, from the Court of Appeals yesterday

by Jill Paperno, First Assistant Public Defender and author of  Representing the Accused: A Practical Guide to Criminal Defense

Among some of yesterday's disappointing Court of Appeals decisions there is one that can be useful to us - People v. Smith, et. al.  The Court recognized that police officers may be cross-examined about their tortious conduct in other situations, as described below.  Sadly, although the Court recognized error on the part of the trial courts in the three joined cases, the Court found errors in two of the three cases were harmless.

In the series of cases decided with Smith, the trial courts had precluded any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit.  In other words, the courts barred questioning of officers who were facing Section 1983 or other lawsuits based on allegations that they had violated defendants' civil rights in other cases through excessive use of force and other misconduct.  Happily (and rightly), the Court of Appeals recognized that police officers should not be subjected to special treatment.  As the Court said in citing past cases, "These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination."  

If you have tried to cross-examine police on allegations they face in civil rights cases, you may have found that a trial court prevented you from crossing if the allegations were merely in a complaint, or if they didn't allege a type of misconduct related to the misconduct you alleged in your case.  But the Court recognized that these limitations are wrong.

The Court reviewed the importance of cross-exam and impeachment, and noted "It is elementary that '(i)impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.  One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (cite omitted)."

The Court stated, "Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (cite omitted).  Likewise, a police witness's prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination.  Nor do allegations of police misconduct lose their relevance to a police witness's credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral..."

The Court continued by noting that if a lawsuit does not result in an adverse finding against an officer, defendants should not be permitted to ask a witness if s/he has been sued, if the case was settled if there was no admission of wrongdoing, or if criminal charges were dismissed.  "However, subject to the trial court's discretion, defendants should be permitted to ask questions abased on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness."

The Court provides a framework for analysis:  1.  Is there a good faith basis for inquiring (such as the lawsuit); 2.  Specific allegations relevant to the credibility of the officer must be identified; and 3.  the trial judge must exercise discretion in assessing whether inquiry would confuse or mislead the jury or create a substantial risk of undue prejudice to the parties."  The Court notes that a federal lawsuit alleging tortious conduct by police testifying as prosecution witnesses in the state case provides the good faith basis for raising the issue.

So when you are considering cross-examination of a police officer, don't forget to check PACER and County Clerk records.  Check the internet.  Be ready with this case when the prosecutor objects or the Court says allegations in a civil suit are not enough.  The trial court may still exercise discretion, but the discretion is not unlimited.

Trial Objections Checklist

Attached below is a checklist of trial objections prepared by Jill Paperno, First Assistant Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense

 

Trial Objections Checklist

Challenging the Use of Recorded Conversations of Pretrial Detainees

Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson  (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.

Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”

Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”

Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.

It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”

Gun Court - proposed voluntary discovery agreement

As correctly noted by my good pal Anonymous, I neglected to post the Gun Court voluntary discovery agreement - here it is: 

VOLUNTARY DISCLOSURE AGREEMENT 

CR # ________________ 

It is hereby agreed between the parties to the above-entitled action: 

1. For those criminal cases referred to the Monroe County Gun Crimes Part, the District Attorney of Monroe County will, as soon as practicable, provide pre-indictment discovery to the defendant’s attorney of record, for the purpose of facilitating potential plea discussions. Discoverable materials include those items set forth in CPL Section 240.20(1) and may include, where applicable, the defendant’s DCJS record, any relevant medical records which the District Attorney obtains, any warrants issued in connection with the case, any photographs shown to the witnesses in a procedure conducted to determine the identity of the perpetrator of the crimes charged and all police reports and memoranda relating to the criminal charges set forth under the above-referenced crime report number. The District Attorney of Monroe County, however, reserves the right to redact from the items listed above, any information which, she, in her complete discretion, deems confidential. 

2. The defendant will, as soon as practicable, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL Section 240.30(1) which may be material and relevant to the pre-indictment discussions. 

3. Each party may inspect, photograph, copy or test any item disclosed by the other party pursuant to paragraphs (1) and (2) above, upon an appointment made at least two (2) days in advance, provided that suitable arrangements are made to preserve the chain of custody and integrity of any items taken for testing. 

4. Both parties recognize that the duty of disclosure imposed by paragraphs (1) and (2) of this agreement is voluntary and is a continuing one. In the event that the above-referenced crime matter cannot be resolved by a Superior Court Information but rather, is presented to a Monroe County Grand Jury and an indictment or prosecutor’s information is returned, materials subject to disclosure as contemplated within this agreement, pursuant to CPL Section 240.20 (1), will be disclosed within thirty (30) days of arraignment. Moreover, the defendant shall, within thirty (30) days of arraignment, disclose to the District Attorney all materials discoverable by a prosecutor pursuant to CPL 240.30 (1). 

Materials subject to disclosure under this agreement which are obtained after the thirty (30) day periods specified herein, will be disclosed within fifteen (15) days after they are obtained, or prior to the commencement of trial, whichever occurs first. 

5. In the event that an indictment or prosecutor’s information is handed up by a grand jury and voluntary disclosure has been provided pursuant to paragraph (4) of this agreement, the defendant will not submit requests, demands or motions pursuant to CPL Sections 200.95; 240.20; or 240.40(1) seeking any particular discovery materials previously provided by the District Attorney and the District Attorney will not submit any demands or motions pursuant to CPL Sections 240.30 or 240.40(2)(a) seeking any particular discovery previously provided by the defendant; however either party may submit requests or demands for any materials subject to disclosure under CPL Article 240 which have not been previously provided under the agreement. Furthermore, either party may file a written motion within forty-five (45) days of defendant’s arraignment, except that such motion may, for good cause shown, be made at any time before commencement of trial. 

6. The District Attorney reserves the right to submit a written motion pursuant to CPL Section 240.40(2)(b) for the provision of non-testimonial evidence. 

7. The District Attorney consents to an enlargement of defendant’s time in which to serve a Notice of Alibi pursuant to CPL Section 250.20 until forty-five (45) days after defendant’s arraignment on the indictment or prosecutor’s information. 

8. The parties will exchange lists of the witnesses whom they expect to call in their direct cases at trial, immediately prior to the commencement of trial. 

Information on the new Monroe County Gun Court Part

The following description of the "Gun Crimes Part" was generated as a result of meetings with Supreme Court Justice Thomas Moran, District Attorney Sandra Doorley and Monroe County Public Defender Timothy Donaher, as well as several others.  We are sharing this with you so that you will become aware of the process.  This memo does not reflect any endorsement of the process by ETKS or its attorneys:

Gun Crimes Part

There is a new Supreme Court part designated to handle crimes involving guns.  The Court, named the “Gun Crimes Part”, began accepting cases during the last two months.  Defendants charged with Criminal Possession of a Weapon in the Second Degree or Criminal Possession of a Weapon in the Third Degree as top counts, or other felonies involving guns, will have their cases directed to this court, often referred to as “Gun Court.”  Supreme Court Justice Thomas E. Moran will preside over the court.

On Friday, December 4, 2015 Judge Moran, District Attorney Sandra Doorley and Dave Fluellen, a probation officer in charge of a component program  of the court (“Swift, Certain and Fair”) met with defense attorneys and some court personnel to discuss the program.  In subsequent meetings among the key players, issues relating to discovery and the contract have been addressed.  Although all details have not been finalized, in general, the following procedures will be used.  

Gun Crimes Part cases in general:

Defendants charged with CPW2, CPW3 or other felony charges involving guns occurring in the city of Rochester will be arraigned in Part 5.  The PH date will be set.  If during preliminary negotiations there is a possibility of a plea, attorneys can request an adjournment to “set” a PH as we often do now.  

Discovery was discussed preliminarily at the meeting, and in greater detail during later discussions between Sandra Doorley and Tim Donaher, the Monroe County Public Defender.  Ms. Doorley ultimately agreed that if the defense attorney signs a discovery agreement, discovery as set forth in the agreement will be provided.  (A copy of the discovery agreement is attached.  Note – defense counsel does waive the right to a Bill of Particulars, and certain other rights, so defense counsel should review the agreement before deciding whether to sign.)

Judge Moran will oversee all plea negotiations.  If there is an adjournment to set a preliminary hearing for the purpose of plea negotiations, the case will be forwarded to Judge Moran, who will handle the preliminary hearing if there is no plea agreement reached and the case has not been indicted.  Preliminary hearings will be at 9:00 a.m.

If the case is indicted on the CPW2 or CPW3 the case will be forwarded to Judge Moran.  At the indictment stage, cases will be tagged for Gun Crimes Part with a stamp on the indictment.

If you want to have a pre-plea investigation ordered during the course of negotiations prior to indictment, Judge Moran will be the judge to issue the order.

Sandra Doorley noted that prosecutors will have the discretion to offer reduced charges in appropriate cases, with supervisor approval.  

Judge Moran expressed a preference that cases in which there will be a reduction be pled before indictment, and that reductions after indictment would not be common.  He also indicated that one of the goals of the new court include quicker handling of cases.  So if you are trying to reach a resolution, since the case will be going to Judge Moran after indictment, you might want to try to resolve it before indictment with Judge Moran’s participation.

Indicted Cases:

Indicted cases will be stamped “Gun Crimes Part.”  They will be litigated before Judge Moran.  Nothing about this process limits the defense from engaging in any appropriate litigation on these cases.

Swift, Certain and Fair:

(Not kidding, this is really the name of the new initiative. Sounds like someone is trying to convince themselves). There is a new initiative involving interim probation supervision of certain defendants charged with CPW3, CPW2 and other violent felony cases called “Swift, Certain and Fair” which will be actively overseen by Judge Moran. This new program was the result of planning by the Monroe County District Attorney’s Office, Monroe County Probation, the Rochester Police Department, R.I.T., and DCJS.  As part of the DCJS GIVE initiative, the grant provides funding for one Probation Officer position and additional GPS monitoring capability.  

The program will accept up to sixteen cases of defendants who are between the ages of sixteen and twenty-four, not predicate felons and are considered to be at-risk, but potentially able to comply with program requirements. Participation in the program will be a disposition that defense counsel can request, and for which a client must be screened.  If a client is accepted to the program all parties will sign a contract, as they do in diversion courts. 

Defendants in this program will be placed on interim probation under the supervision of a unit headed by Dave Fluellen of the Probation Department.  They will have to plead to a felony at the outset and sign a contract that the defense attorney and prosecutor will negotiate.  Defendants in this program will have to wear ankle bracelets for the first six months of the interim probation.  They will be carefully monitored, provided case managers, and receive rewards for compliance and sanctions for noncompliance, based on a graduated scale of sanctions, as they progress through the program.  If a participant successfully completes the program within a year, s/he will be allowed to withdraw his/her initial plea and plead to a reduced charge with a probation sentence.  If the client violates a condition the “Swift, Certain and Fair” component kicks in – the client gets a notice, even if it is late at night, to appear before Judge Moran at 9:00 the next morning.  Attorneys will also be notified and expected to appear.

  

The existence of “Swift, Certain and Fair” will not preclude YO eligible defendants who are not considered as “at risk” or otherwise unable to obtain entry into “Swift, Certain and Fair”  from obtaining YO dispositions with probation as a sentence, or other defendants who may otherwise  be appropriate for a probation sentence from obtaining that disposition.

Miscellaneous:

All of the details have not yet been worked out, and there are still questions about aspects of the program, such as what will happen to a defendant who is on felony probation – where will the new VOP go?  Or what will happen if a person who has a felony charge pending picks up a new gun charge – will the older felony follow the defendant to gun court?  As more information is developed, it will be circulated.

Another successful challenge to denial of Parole Release.

        We've discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board's imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent's release in the Matter of Caufield v. NYS Division of Parole. In our representation of the respondent, our petition noted he was sentenced in July 2013 to an indeterminate term of 1 1/3 - 4 years on his plea to a Class D felony of DWI. At his appearance before the Parole Board in July 2014, he had already been awarded Merit Time pursuant to Corrections Law Section 805 and a Certificate of Earned Eligibility. He had completed the DWI program, received a favorable COMPAS Risk and Needs Assessment and provided the Board with favorable letters of support, a personal recovery statement and an offer of prospective employment. The respondent appeared via video conference with the Board, who denied his release and ordered a 24 month hold. Their determination recited the usual boiler plate"there is a reasonable probability that [petitioner] would not live and remain at liberty without again violating the law and his release at this time is incompatible with the welfare and safety of the community." 

         Our petition noted among other things that the Board's decision failed to consider his exemlary prison disciplinary record, positive programming, contributions to the prison community and support available upon release. It also failed to consider the sentencing Court's specific recommendation to the Board, encouraging the respondent's early release if he did complete all the available programs. 

          We argued the denial of release was irrational, arbitrary and capricious. The Supreme Court Decision determined the "twenty four month hold to be excessive and an abuse of discretion. Accordingly, the parole Board will vacate its imposition of a twenty four month hold, and instead impose a twelve month term."

           Keep fighting.

NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review

(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner. "The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI Examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed." "These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. "While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts." Norman L. Reimer, Executor Director of NACDL added, "It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions."        The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed. The Innocence Project and NACDL, with its partners David Koropp, Partner at Winston & Strawn LLP, and his colleagues, and Michael R. Bromwich, Managing Principal of The Bromwich Group, who served as the Inspector General of DOJ from 1994-1999, worked with the FBI and DOJ in determining the scope and protocols for the review. The review encompasses cases where FBI microscopic hair comparison was used to link a defendant to a crime and covers cases in both federal and state court systems. It does not, however, cover cases where hair comparison was conducted by state and local crime labs, whose examiners may have been trained by the FBI. The FBI has trained hundreds of state hair examiners in annual two-week training courses.  The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 - 96% of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change.  All but two of 28 FBI examiners provided testimony that contained erroneous statements or authored lab reports with such statements. The review has shown that the FBI Examiners testified in cases in 41 states.   In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps:       Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long. Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements. Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI. The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press.  The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.   Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.  Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence. Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.

Which Came First, the Chicken, the Egg, the Search or the Arrest?

by Jill Paperno, Esq., author of Representing the Accused:A Practical Guide to Criminal Defense

When you are handling probable cause hearings in which you are seeking to suppress evidence obtained as a result of a search, you must be acutely aware of the claimed (or potentially claimed) reason for any search, the timing of the arrest and the timing of the search.  If a search is justified as "incident to arrest" you should attempt to elicit testimony from the arresting officer that the arrest had not yet occurred at the time of the search.  If this may be an issue, be really strategic in planning your questions and cross.  Cops don't like to admit that people were under arrest too early in the investigation because they know that there may not have been probable cause at that stage.  

In People v. Graham Reid (2014 NY Slip Op 08759 [NY 12/14/14]), defendant was stopped for traffic violations and the officer's observations led him to believe defendant might have committed a DWI. The officer conducts a search and finds a switchblade knife, for which the defendant is then charged. When questioned by defense counsel about whether defendant was going to be arrested at the stage that the search was being conducted, the officer stated he was not (perhaps because the DWI observations resulted in a test, which resulted in a .0 BAC. and the cop knew that at the time of the hearing). The Court noted it was undisputed that there was PC to arrest for DWI, but the officer had testified he was not arresting for DWI at the time of the search. The search which produced the switchblade was justified by the prosecution as a search incident to arrest, but as the defendant had not yet been arrested, that didn't actually fly. Like chickens.

"THE COURT: At that point, were you going to arrest him?

"THE WITNESS: No.

"THE COURT: You weren't?

"THE WITNESS: No."

***

"THE COURT: So it's only because you ultimately found the switchblade that you arrested him?

"THE WITNESS: Yes, ma'am.

On this record the Court held that the search of a driver could not be justified as "incident" to the driver's arrest:"although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime."

Commencement of Counsel Upon Requests on Behalf of Indigents Being Questioned by Police

by 

Jill Paperno, Esq., 

author of  

Representing the Accused: A Practical Guide to Criminal Defense

And justice for all!

During a week when many of us are questioning the criminal justice system's handling of cases, I wanted to share one case reflecting that our continued struggle to eliminate disparities in how defendants are treated can pay off.

In People v. Rankin, a case in which Judge John DeMarco presided in Monroe County Court, Rochester New York, the question of whether an indigent defendant had the same right to counsel as one who could afford to retain was answered.  The decision, which can be found here - http://www.nycourts.gov/reporter/3dseries/2014/2014_24363.htm - though focusing largely on New York law, addressed principles applicable to indigent defense throughout the country.

(Full disclosure - I am a public defender employed by the office originally involved in this case. Mr. Rankin was successfully represented on this issue by Lawrence Kasperek, of Easton Thompson Kasperek Shiffrin LLP., whose arguments persuaded the court).

There are times that the Public Defender's office is contacted by friends or family members seeking representation for a loved one who has just been arrested and taken for questioning.  Sometimes individuals under investigation walk into the office seeking assistance.  While the County Law of New York provides guidance for how attorneys are appointed to indigent defendants once charges are filed, the pre-charge process is somewhat murkier.  So individual judges assigned to the court part that handles bail review, warrants and other criminal matters not assigned to a particular judge are often involved in appointing counsel in these cases. Some immediately appoint, while others may require affidavits and orders, all during those critical minutes and hours of interrogation.  Some judges, perhaps on the bench or otherwise unavailable, when in this part, may be difficult to reach as the clock ticks away.

Recognizing the importance of representation at those critical early stages, Judge DeMarco held that:

Effective assistance of counsel for indigent individuals demands the absence of suspect distinctions regarding the obtainment of counsel. Indeed, the American Bar Association (ABA) recommends that counsel be provided as soon as practicably possible after someone is taken into custody (see ABA Standards for Criminal Justice, Providing Defense Services, standard 5-6.1 [3d ed 1992], available at http://www.americanbar.org/publications/criminal_justice_section _archive/crimjust_standards_defsvcs_blk.html). Similarly, the New York State Bar Association (NYSBA) recommends that indigent individuals be afforded "early entry of representation" whenever counsel is requested for an indigent party under investigation or in custody (see NYSBA Revised Standards for Providing Mandated Representation, standard B-1 at 5 [2010], available at https://www.ils.ny.gov/files/Revised%20Standards%20For%20Providing%20 Mandated%20Representation.pdf). While the NYSBA states that the initial eligibility determinations shall be decided by the court (see id. standard C-3 at 6), they also declare that the "[p]rovision of counsel shall not be delayed while a person's eligibility...is being determined or verified" (id. standard C-5). These standards, applicable to all attorneys tasked with representing indigent individuals, demonstrate, objectively, that effective representation for indigent individuals entails representation without delay pending the judge's eligibility determination. The Court is not maintaining that a judge's order of appointment is without purpose or a practice that should be dispensed with. The Court is simply saying that there is no scenario under which indigent individuals would not be afforded an impaired quality of representation where the Public Defender's function as counsel is effectively disabled pending receipt of a judge's order of appointment. An overtechnical application of this measure, as urged by the People, would sanction the sort of "mechanical" requirement eschewed by the Court of Appeals in Grice, supra, in subversion of the right to counsel (see Grice, 100 NY2d at 323).

Important Decision on Interrogation of Suspects with Low IQs - Providing Guidance to Courts and Counsel

by

Jill Paperno, Esq.

author of  Representing the Accused: A Practical Guide to Criminal Defense

All too often, we represent defendants who are intellectually limited, due to genetic or birth defects, lead poisoning, traumatic brain injury or other causes. We struggle to persuade prosecutors and judges that these disabilities should be considered during plea negotiations. But sometimes we fail to recognize the effect that mental disabilities may have on a defendant's ability to understand Miranda warnings, knowingly and intelligently waive rights, and withstand coercive tactics of aggressive officers.

If a defendant with such disabilities has given a statement, or consented to a search, defense counsel must become familiar with the law relating to admissibility of statements made by these defendants. But knowing the law is not enough. We must obtain our clients' educational, psychological and social services histories, and consult with an expert, or even better, put on our own expert at suppression hearings and trial. We should consider whether the client had the capacity to understand the words of an officer reading Miranda, and whether the client had the capacity to understand abstract concepts such as constitutional rights.  We should consider whether the client is excessively compliant and more likely to simply agree with an officer's accusations. We should analyze the officer's questions and their impact on the particular responses. (Of course, this is all easier with a recorded interrogation.)

For a great example of the defense analysis and use of this information in a case in which the defendant, who had an IQ of 68, was convicted of numerous sex offenses, you must read the Fourth Department's decision  in People v Knapp (2014 NY Slip Op 07801 [4th Dept 11/14/14]).

 

In Knapp, Justice Peradotto, writing for a unanimous Court, provides a comprehensive analysis of the law relating to admissibility of statements of defendants who have mental disabilities.  The decision addresses both issues relating to Miranda as well as voluntariness, and recognizes the significance of defendant's highly compliant nature as tested by the expert, and the impact of the officer's tactics.  To repeat - it is a "must read."

Kudos to defense counsel and the expert, who understood the importance of testing and analyzing the defendant's intellectual abilities and compliance characteristics, and linked them to related aspects of interrogation.  The Court reversed the conviction, suppressed the defendant's statement, and dismissed certain counts, remanding others for retrial.

As we wait . . .

The result of the Ferguson, MO grand jury investigation into the shooting death of Michael Brown is scheduled to be announced any time now (authorities indicated that the results could be made public as early as yesterday). No one but the grand jury knows what that result will be. That would not be the case, were the situation reversed.  If a black man in Ferguson had shot a police officer (who, unlike Michael Brown, would have been armed) then other black men - members of the shooter's gang - surrounded the area a prevented the officer's body from being removed from public view for hours, there would be no question of the outcome of any grand jury investigation.  Those men, if they lived through the ordeal, would be charged and the shooter would not be at home with his family on paid administrative leave. Maybe there would be reasons not to charge the shooter in that case, but is there any chance, really, that those reasons could ever result in a vote not to charge the shooter? Maybe there are reasons for the Ferguson grand jury not to charge Michael Brown's killer. But if the grand jury votes not to do so, claims that a different, and double standard was applied, will be hard to refute.   

Ethan Nadelmann examines the failure of the war on drugs

Here's a provocative TED Talk, published today, by Ethan Nadelmann, former professor at Princeton University and founding executive director of the Drug Policy Alliance, "the largest and most influential organization promoting drug policies grounded in science, compassion, health and human rights." Mr. Nadelmann contends that the drug laws have more to do with the sublimation and control of disenfranchised groups of our society than the control of drug use and sale, contending, among other things, that if middle-aged white men were the primary consumers of smokeable cocaine and teenage black men were the primary consumers of Viagra, you would be able to get smokeable cocaine from your pharmacist with a prescription from your doctor and Viagra would get you a 5-10 year prison sentence.  

The groundwork of this presentation was laid here, at a debate between Mr. Nadelmann and Peter Bensinger, President & CEO, Bensinger, DuPont & Associates, at the "Rethinking the War on Drugs" symposium at Northwestern Law School on Feb. 20, 2014.

Why Innocent People Plead Guilty

Roughly 10% of those defendants who were later exonerated by DNA evidence through the efforts of the Innocence Project pled guilty to a crime they did not commit.  What would lead a person to do that?  Hon. Jed S. Rakoff, United States District Court Judge for the Southern District of New York examines that question in the above-entitled thought-provoking article (found here) in the November 20, 2014 issue of the New York Review of Books.  Judge Rakoff, both a prosecutor and a defense attorney before ascending to the bench, examines the institutional pressures that lead innocent people to plead guilty, including the threat of mandatory minimum sentences and the prosecutorial limitation of judicial sentencing discretion via charging (or not charging) offenses that carry such sentences, the imbalance of resources and available information between the prosecution and defense and, in federal court, the prohibition on judges' involvement in the plea negotiation process.  A short and interesting read. 

Overcriminalized: America's use of incarceration as a response to mental illness, substance abuse, and homelessness

This series of short YouTube videos by Brave New Films examines the overuse of incarceration and, in the case of the mentally ill, force - too often deadly physical force - as a means to control those who are unable to toe the imaginary line of the social compact, thereby frightening the rule-bound and risk-averse.  The first video, for example, examines the social and economic benefits to utilizing officers and agencies trained in crisis intervention training when responding to those in mental health crisis, an all-to-common component of modern police work.

Given the obvious benefits, "Why wouldn't you do this?" asks one of the implementers of the training program for officers. The answer, sadly, comes not infrequently from the officers required to participate the crisis intervention training: "I'm a cop, I'm not a social worker; I don't believe in this B.S.," which roughly translated, sounds like "a little more force will solve the problem," a mindset that sometimes leads to shooting unarmed teenagers or choking people to death outside of Staten Island convenience stores for the tax code violation of selling loose cigarettes.

H/T Paul Layton

Family Court: An under utilized resource for the criminal defense attorney

Family court proceedings can be the ultimate source of discovery for the criminal defense attorney. Where a child neglect/abuse petition is filed in family court against a parent of a child or a "person legally responsible" for a child, there is often a companion criminal case.  The allegations in both venues are often identical.  Despite this, criminal defense attorneys (in my experience) seldom contact a client's family court attorney or observe the family court proceedings.  The advantages of having a "companion" family court case are numerous.

Upon the filing of a child abuse/neglect petition under Article 10 of the Family Court Act, an initial court appearance is scheduled within days.  During this appearance, the Respondent (the parent or person "legally responsible" of/for a child) is entitled to an immediate evidentiary hearing (a "1027 hearing" pursuant to Section 1027 of the family Court Act) to determine whether that child should be legally removed from that parent's care during the pendency of the family court proceeding. Witnesses will be called at this hearing and will be subject to cross examination.  Hearsay is admissible at this stage of the proceedings, however the primary Child Protective Services case worker who conducted the "investigation" as to the allegations of child abuse/neglect will most often be the witness called to testify.  That case worker is usually the individual who conducted the interview of the child.

The family court attorney may decide not to request such a hearing on behalf of the client during theses early stages of the proceedings, opting instead to reserve the client's right to a hearing for the return of the child at some point in the future (usually to give the client an opportunity to begin substance abuse treatment for example if there are allegations of substance abuse leading to the initial removal of the child).  Such a hearing is referred to as a "1028 hearing" pursuant to Section 1028 of the Family Court Act.

It may be more advantageous to the client to have certain witnesses cross examined early on in family court in order to assist in the defense of the criminal charges, rather than to wait   The criminal defense attorney may be deciding whether to waive a case to the grand jury without the benefit of discovery.  The Family Court "1027 hearing" may assist a great deal in exploring the allegations.

In addition to the "1027 and 1028 hearings", the Respondent in Family Court child neglect/abuse proceedings is ultimately entitled to a "fact finding hearing" to determine whether the child or children have been abused or neglected by the Respondent(s).  Hearsay is not admissible at this stage of the proceedings, with the exception of a child's hearsay statements if such statements pertain to neglect or abuse and are corroborated.  Consequently, the criminal defense attorney has the potential to gain discovery from two separate evidentiary hearings during which there will evidence pertaining to the very same allegations forming the basis of the "companion" criminal charge(s).

There is more even.... The family court attorney has access to the entire file compiled by the Department of Human Services.  Such a file is truly invaluable.  The Child Protective Case Worker(s) assigned to the case complies the contents of this file.  Child Protective Case Workers write everything in their notes!! I am often surprised by the detail that is included, details of conversations and observations that are often not helpful to them or their case, and often very helpful to yours! Such notes will include details regarding the interview of the child that you will not see in any document generated by law enforcement.

ETKS Partner Lawrence L. Kasperek to receive the 2014 Jeffrey A. Jacobs Memorial Award

Congratulations to our partner Larry Kasperek, the 2014 Jeffery A. Jacobs Memorial Award recipient.  The award is to be presented on September 20, 2014 at the Defense Community Dinner at the Rochester Institute of Technology, sponsored by the Monroe County Public Defender’s Office and the New York State Defender’s Association.  

Jeff Jacobs is remembered as an outstanding attorney and person who was a fierce advocate for his clients and proud of having tried more than 100 felony cases in his career.  Many of his trials were complex cases requiring familiarity with novel scientific theories and the development of effective trial strategies.  In addition, Jacobs was a role model and mentor for younger assistant public defenders, generously giving his time and encouragement.

The award recognizes a criminal defense attorney from the Monroe County area who has demonstrated these qualities, including in particular, zealous client advocacy in complex criminal defense litigation, which may include the effective use of experts and litigating forensic or scientific issues, fearless advocacy on behalf of the client, and creativity in the presentation of the client’s defense.

Past award recipients include Second Assistant Monroe County Public Defender Jill L. Paperno (2010), ETKS partner William T. Easton (2011), Assistant Federal Public Defender Anne M. Burger (2012), and Assistant Monroe County Public Defenders Elizabeth A. Riley and Emily L. Rosmus (2013).

Prosecutors' ethical obligations to comply with Brady; Managerial and Supervisory Obligations of Prosecutors under ABA Model Rules of Professional Conduct 5.1 and 5.3

On September 8, 2014 the ABA released Formal Ethics Opinion #467 dealing with the Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3. The opinion begins by noting that prosecutors “must ‘make timely disclosure to the defense’ of exculpatory and mitigating evidence” [emphasis added], contrary to the familiar prosecutorial mantra that “impeachment material is not Brady.”  

The opinion makes clear that “supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations,” noting that “reports, court opinions, and other authorities have drawn attention to prosecutorial misconduct . . . [that] suggest a need for more guidance.”  The opinion goes on to recommend the establishment of office-wide policies, training, supervision, and the creation of a “culture of compliance.”  

The opinion is relatively short, worthy of a careful read and perhaps inclusion as an exhibit in your motions for disclosure of Brady material.  

HT: Donald Rehkopf

And speaking of Brady violations . . .

This article by Ernie Lewis, Executive Director, National Association for Public Defense:

It’s time for another list.  This time the focus is on prosecutors. Admit it, you have things you want to say about prosecutors.  Please join in with your own.   Of course, prosecutors come in all shapes and stripes.  There are plenty of good ones and plenty of, well, not so good ones.  But they all know, if they’re honest with themselves, the following ten things that apply to many if not most of their colleagues: 

10.  They don’t believe the cop either.  How could they?  Michelle Alexander recently wrote an article in the NY Times, concluding with this:  “The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, ‘get tough’ mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.”  Prosecutors and judges both know this, and tolerate it at best, encourage it at worst. 

9.  They can control their caseloads much easier than we can.  Sometimes when I advocated for lower caseloads in the Kentucky legislature, prosecutors would testify that they had far higher caseloads than we did.  County attorneys in particular would cite the tens of thousands of traffic “cases” they handled, compared to “only 495 cases for public defenders”, knowing full well they did little or nothing on those cases, most of which were prepaid.  Where prosecutors really control their caseloads occurs when they decide to dismiss cases, or to offer sweet-heart deals, knowing that their case is weak.  Prosecutors can force us to try cases we don’t want to try, and to plead cases we want to try. 

8.  They are helping to destroy the jury trial.  The fact that the prevalence of the jury trial is shrinking is well known.  One cause known by all of us is that the laws that have been advocated successfully by prosecutors, laws such as 3-Strikes, mandatory minimums, and such, have made it unwise in many cases to throw the dice and let a jury decide.  When the offer on a 5-30 is 1 year on a reduced charge, what’s a client going to do?  Many if not most states over the last 30 years have rewritten their sentencing laws so that the thumb is firmly on the side of forcing pleas.  And prosecutors are complicit in that. 

7.  Innocent people confess.  Just this week, it was revealed that two half-brothers had pled guilty over 30 years ago to a rape-murder of an 11 year old that they did not commit.  There were both intellectually disabled.  Yet, confess they did, and despite their recantations, they were convicted.  One of them lived for 30 years on death row for a crime he did not commit, the other was serving a life sentence.  They were only released when DNA proved their innocence.  The Innocence Project reports that in 30% of cases resulting in exoneration through DNA, the defendants confessed or pled guilty where they were innocent. 

6.  Private lawyers often get better deals than public defenders do.  This used to occur with regularity in my practice.  Private paid lawyers would get a sweetheart deal for their client, while the public defender client would be offered a much harsher sentence.  The only difference between the two cases, as far as I could tell, was the poverty of the latter.  Perhaps poverty wasn’t the governing factor.  Perhaps the relationship between the prosecutor and the private lawyer governed the plea offer.  But it still stunk. 

5.  Their office is the farm team for the judiciary.  The progression always seems to be assistant prosecutor to prosecutor to judge.  At the federal level, 45% of President Obama’s nominees for the federal judiciary have been former prosecutors.  40% of President Reagan’s had a similar background.  Only 15% of President Obama’s nominees had been public defenders.  And perhaps it goes both ways.  When Texas Judge Elizabeth Coker was caught sending helpful texts to a prosecutor during trial, she resigned her office and then followed that by announcing that she was running for district attorney.  Isn’t it time for balance on the bench? 

4.  Even if they don’t believe the death penalty is a deterrent, they continue to support it so they can get better pleas or a death-qualified jury.  In Kentucky, we have 60-90 death eligible cases each year, and in many of those the death penalty is noticed until a plea is entered.  We have only 2 or so death penalty verdicts per year, with 5-10 trials.  More recently, we have had only one death verdict in several years.  This is a pattern that is common throughout the nation in death penalty states.  Why?  Because states have aggravating circumstances that apply to a high percentage of homicides, allowing prosecutors to notice death in order to force a plea.  

3.  They could do something about over-incarceration.  A growing consensus is that we have become the “incarceration nation.”  We have grown our prison population from a little over 200,000 in 1970 to over 2.2 million today.  We incarcerate at a higher rate than any other nation in the world.  (And don’t get me started on Louisiana).  Yet, a voice largely missing at the table encouraging reform of our nation’s laws, from long prison sentences to 3-Strikes laws to mandatory minimums, is that of the prosecutors.  They are a powerful voice in most State houses.  Why don’t they step up and use those powerful voices to do something about over-incarceration? 

2.  There is not parity with public defender offices.  I often use the analogy of the Harlem Globetrotters and the Washington Generals when describing what many prosecutors want in their adversary.  Many prosecutors have and want to preserve a systemic advantage.  They want their budgets to be two and three times the public defender’s budget, despite the public defender representing 70-90% of the cases.  They want higher salaries.  They want loan forgiveness.  They don’t want to include law enforcement in their budgets, but count investigators in public defender budget comparisons.  They don’t want to include their forfeitures and federal grants in comparing their budgets with defender budgets.  And while the ABA Ten Principles call for parity between the prosecution and defense functions, prosecutors do not for the most part advocate actively for parity. 

1.  Brady violations are rampant and they know they can get away with it.  Rodney Balko recently wrote a piece for the Huffington Post, entitled “The Untouchables: America's Misbehaving Prosecutors, And The System That Protects Them.”  Need I say more? 

"The People are fully aware of their Brady obligations" - revisited

A recent Stanford Law Review article, "The Brady Colloquy" (http://www.stanfordlawreview.org/online/brady-colloquy), by visiting assistant professor Jason Kreag, “offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record.”  This procedure is proposed as a means to ameliorate the “distinctly vexing problem for the criminal justice system” of “wrongful convictions caused by prosecutorial misconduct,” in this case, prosecutorial failure to recognize or comply with Brady obligations. The suggested Brady colloquy includes 5 questions (four pretrial questions, the fifth at the conclusion of the prosecution’s case):   

1. Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense? 

2. Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense? 

3. Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material? 

4. Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard? 

5. Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?

As the article suggests, a Brady colloquy is “at a minimum . . . an idea worth testing – test that could be implemented today by any judge who wants to . . . actively protect the rule of law by ensuring that prosecutors meet their due process and ethical obligations.”  While the article notes that some judges may see this suggestion as too pro-defense, or overly as judicial meddling in the prosecution’s case, given the undeniable recurrence of wrongful convictions resulting from prosecutorial misconduct in this area, some meddling would seem to be warranted and salutary for the criminal justice system as a whole.

HT: Jill Paperno 

The People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.

by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP

Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses.

Mark Garrett was convicted after a trial by jury of two counts of murder in the second degree.  In addition to circumstantial evidence connecting Garrett to the crime, the People presented evidence of his confession.  Garrett maintained that his confession was false and coerced by the interrogating detectives.

In a CPL 440.10 motion to vacate his judgment of conviction, Garrett claimed the People committed a Brady violation by failing to disclose to him the federal civil rights action that had been filed against one of the interrogating detectives.  The complaint alleged that the detective had coerced a confession in an unrelated arson case.  The Court of Appeals disagreed.

In an opinion written by Judge Abdus-Salaam, the majority determined that, although the civil allegations were favorable to Garrett, given his own allegations that the detective coerced his confession, Garrett had not met his burden of proving the remaining elements of a Brady claim—i.e. that the People suppressed the information or that he was prejudiced by their non-disclosure.

First, the majority held the People had not suppressed the information because they had neither actual nor constructive knowledge of the civil allegations against the detective until after their Brady obligations had ceased.

Although the civil complaint was filed and answered more than a month before Garrett’s arrest, the files related to the civil case were sealed until after Garrett’s trial and sentencing had concluded.  Given that, the majority concluded that the People adequately proved they had no knowledge of the allegations until after sentencing, at which time they were not obligated under Bradyto disclose the information.

Yesterday’s decision therefore does not foreclose a defendant from arguing the People have an obligation to disclose civil allegations against a police witness if those allegations were unsealed prior to the defendant’s trial or sentencing.

(The majority did, however, explicitly reject Garrett’s argument that a prosecutor has a duty to ask his police witnesses whether any allegations were pending and a duty to conduct a cursory search through court dockets for any such allegations.)

When considering whether the People were imputed with constructive knowledge, the majority addressed several case-specific factors before holding they were not.

First, the civil allegations against the detective did not arise out of the detective’s investigation of Garrett’s case but instead arose out of the detective’s alleged misconduct in an unrelated case.  The majority made clear the People may be imputed with knowledge of any “bad acts” engaged in by a police officer during the course of his investigation of a defendant’s case. 

Second, according to the majority, the allegations were only collateral to Garrett’s case, at best, to the extent they may have provided him with impeachment material. 

Third, the majority emphasized that Garrett only argued that the detective’s knowledgeof the allegations against him were attributable to the prosecutor; he never alleged that imputation derived from the knowledge of any other police officer or member of the prosecution team.  This suggests that the holding may have been different if Garrett offered proof showing that a government agent other than the detective against whom the allegations were filed knew of the allegations.

Notwithstanding the suppression prong, the majority held that the undisclosed evidence did not meet the materiality standard required under Brady because Garrett previously tried and failed to admit similar impeachment evidence against the detective at both the suppression hearing and at trial—i.e. evidence that another interrogating detective had participated in case involving a false confession.  Both the suppression court and the trial court sustained objections to the line of questioning based on relevance grounds.  It seemed unlikely to the majority that Garrett would have had greater success with admitting the evidence at issue.

Again, this leaves open the possibility that a defendant may be successful in establishing prejudice and materiality if the suppression court or the trial court, in its discretion, allows similar impeachment evidence to be admitted.

Moreover, the majority admitted that the Court has never squarely addressed whether inadmissible evidence may be considered material under Brady if it could lead to admissible evidence, recognizing that some federal courts have held that it may.  Since Garrett failed to show what, if any, admissible evidence disclosure of the allegations against the detective would have led to, the majority again avoided addressing the issue.

Admissibility aside, the majority noted that the impeachment value of the undisclosed civil allegations was minimal at best because another interrogating detective gave corroborating testimony as to the voluntariness of and circumstances surrounding Garrett’s confession.

In the absence of such corroborating testimony, a defendant may be able to demonstrate the requisite prejudice and materiality to satisfy the third prong of a Bradyclaim.

Chief Judge Lippman wrote a concurring opinion, joined by Judges Smith and Rivera, agreeing with the majority that the civil allegations against the detective were not material under Brady.  However, they disagreed with the majority’s suppression analysis and would have held that the detective’s knowledge of the allegations pending against him should be imputed to the People because, as a member of the prosecution team, he had an independent obligation to disclose impeachment evidence.  Further, they believed that the majority erred in considering the materiality of the evidence in their suppression analysis.

Judge Smith also wrote a separate concurring opinion, joined by Judge Pigott, questioning whether the Court was even able to consider the materiality prong of the Brady claim given that the County Court did not consider it when it denied Garrett’s CPL 440.10 motion.