by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable.

In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote

"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process."

(People v Santorelli, 95 NY2d 412, 420-21 [2000].)

On December 31st, the Fourth Department decided two cases in which it found that the prosecutor made improper remarks in summation.  Both were decided on appeal from judgments of conviction for sex offenses.  And in both the court exercised its discretion to review the issue of prosecutorial misconduct in the interests of justice because it was not properly preserved.

In the first, People v Gibson (2015 NY Slip Op 09722), the defendant appealed from a judgment of conviction for sexual abuse and other crimes.  The prosecutor engaged in misconduct in summation by (1) referring to facts not in evidence, (2) commenting on how difficult it was for the complainant to recount her ordeal, thereby improperly appealing to the jury's sympathy and bolstering the complainant's credibility, and (3) suggesting "that the jury experiment on themselves to see how quickly bite marks fade."  The court admonished the prosecutor, reminding him that "prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process."  Nevertheless, the court did not reverse the defendant's conviction on that ground, concluding that "it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law."

In the second, People v Jones (2015 NY Slip Op 09773), the defendant appealed from a judgment of conviction for attempted rape and other crimes.  The prosecutor in summation (1) "repeatedly invoked a 'safe streets' argument," even after the trial court sustained defense counsel's objection to that argument, (2) "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed" and improperly characterized the defense "as being based on a 'big conspiracy' against defendant" by the prosecution, (3) "denigrated the fact that defendant had elected to invoke his constitutional right to a trial," and (4) "mischaracterized and overstated the probative value of the DNA evidence."  The court found this latter act of misconduct the most egregious because of the obvious danger "posed to defendant when DNA evidence is presented as dispositive of guilt."  Finding that the prosecutor's misconduct caused substantial prejudice to the defendant and that the evidence of the defendant's guilt was "less than overwhelming," the court reversed the defendant's conviction.

These two cases serve to both provide examples of prosecutorial misconduct in summation and reiterate my earlier point that many defense attorneys are unclear about what amounts to misconduct, or, at least, do not properly preserve instances of misconduct for appeal--that is, by objecting to each instance, specifying why the comment was improper, and by taking exception to any curative instruction given if it was not sufficient to "cure" the prejudice created by the comment.

To provide a non exhaustive overview, taken from my running list, it is improper for a prosecutor to do any of the following in summation:

• refer to facts not in evidence;
• shift the burden of proof;
• refer to the defendant as a liar;
• denigrate the defense, defendant, or defense counsel or equate the defense to a conspiracy claim;
• offer a personal opinion as to the defendant's guilt;
• comment on the defendant's request for a lawyer;
• comment on the defendant's post-Miranda silence;
• arouse the jury's sympathy for the complainant or witnesses or otherwise inflame the passions and prejudices of the jury;
• infer that the community would be unsafe if the jury did not convict the defendant;
• equate a not guilty verdict with a finding that a witness perjured his or herself; and
• vouch for the credibility of the complainant or witnesses.

As the Gibson court noted, New York courts have taken the stance that "reversal is an ill-suited remedy for prosecutorial misconduct," preferring instead that prosecutorial misconduct be addressed internally or by each appellate division's disciplinary committee.  That being said, the appellate division will reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  And the appellate division measures whether substantial prejudice has occurred requiring reversal by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" (see Jones).

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable.

In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote

"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process."

(People v Santorelli, 95 NY2d 412, 420-21 [2000].)

On December 31st, the Fourth Department decided two cases in which it found that the prosecutor made improper remarks in summation.  Both were decided on appeal from judgments of conviction for sex offenses.  And in both the court exercised its discretion to review the issue of prosecutorial misconduct in the interests of justice because it was not properly preserved.

In the first, People v Gibson (2015 NY Slip Op 09722), the defendant appealed from a judgment of conviction for sexual abuse and other crimes.  The prosecutor engaged in misconduct in summation by (1) referring to facts not in evidence, (2) commenting on how difficult it was for the complainant to recount her ordeal, thereby improperly appealing to the jury's sympathy and bolstering the complainant's credibility, and (3) suggesting "that the jury experiment on themselves to see how quickly bite marks fade."  The court admonished the prosecutor, reminding him that "prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process."  Nevertheless, the court did not reverse the defendant's conviction on that ground, concluding that "it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law."

In the second, People v Jones (2015 NY Slip Op 09773), the defendant appealed from a judgment of conviction for attempted rape and other crimes.  The prosecutor in summation (1) "repeatedly invoked a 'safe streets' argument," even after the trial court sustained defense counsel's objection to that argument, (2) "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed" and improperly characterized the defense "as being based on a 'big conspiracy' against defendant" by the prosecution, (3) "denigrated the fact that defendant had elected to invoke his constitutional right to a trial," and (4) "mischaracterized and overstated the probative value of the DNA evidence."  The court found this latter act of misconduct the most egregious because of the obvious danger "posed to defendant when DNA evidence is presented as dispositive of guilt."  Finding that the prosecutor's misconduct caused substantial prejudice to the defendant and that the evidence of the defendant's guilt was "less than overwhelming," the court reversed the defendant's conviction.

These two cases serve to both provide examples of prosecutorial misconduct in summation and reiterate my earlier point that many defense attorneys are unclear about what amounts to misconduct, or, at least, do not properly preserve instances of misconduct for appeal--that is, by objecting to each instance, specifying why the comment was improper, and by taking exception to any curative instruction given if it was not sufficient to "cure" the prejudice created by the comment.

To provide a non exhaustive overview, taken from my running list, it is improper for a prosecutor to do any of the following in summation:

• refer to facts not in evidence;
• shift the burden of proof;
• refer to the defendant as a liar;
• denigrate the defense, defendant, or defense counsel or equate the defense to a conspiracy claim;
• offer a personal opinion as to the defendant's guilt;
• comment on the defendant's request for a lawyer;
• comment on the defendant's post-Miranda silence;
• arouse the jury's sympathy for the complainant or witnesses or otherwise inflame the passions and prejudices of the jury;
• infer that the community would be unsafe if the jury did not convict the defendant;
• equate a not guilty verdict with a finding that a witness perjured his or herself; and
• vouch for the credibility of the complainant or witnesses.

As the Gibson court noted, New York courts have taken the stance that "reversal is an ill-suited remedy for prosecutorial misconduct," preferring instead that prosecutorial misconduct be addressed internally or by each appellate division's disciplinary committee.  That being said, the appellate division will reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  And the appellate division measures whether substantial prejudice has occurred requiring reversal by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" (see Jones).

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).

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.