In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [June 25, 2009]), the United States Supreme Court held that the Confrontation Clause requires that in order for the prosecution to be able to introduce a forensic laboratory report at trial, the prosecutor must present a live witness to testify to the truth of the statements made in the report subject to cross-examination.

Today, in Bullcoming v New Mexico (see _US_ [6/23/11]), the Court decided the related issue of whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. By a 5-4 vote, the Court held that "surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."

Last year I noted concern that Melendez-Diaz, itself a 5-4 decision, may not survive the replacement of Justice Souter, who was part of the majority in Melendez-Diaz, by Justice Sotomayor (see). In Bullcoming, Justice Sotomayor provide the key fifth vote, but but did not join the main opinion and, instead, wrote a concurring opinion emphasizing the limits of the Court's holding, and suggesting that that perhaps a supervisor who had some connection to the test might be an acceptable witness and that many tests would not be testimonial.

So one can expect further testing of the contours and limits of Crawford v Washington (541 U.S. 36 [2004]), particularity by prosecutors who can be expected to use Justice Sotomayor's opinion as a road map as to how to win her vote, and thus, a majority.

It is not coincidental that this difficult 5-4 win was achieved by Jeffrey Fisher, who was the successful advocate in Crawford, and seven other criminal cases at the Supreme Court prior to winning Bullcoming. That would be incredible even if Fisher was not born in 1970. Those of us a bit older who attempt to make careers as appellate counsel are in awe.

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [June 25, 2009]), the United States Supreme Court held that the Confrontation Clause requires that in order for the prosecution to be able to introduce a forensic laboratory report at trial, the prosecutor must present a live witness to testify to the truth of the statements made in the report subject to cross-examination.

Today, in Bullcoming v New Mexico (see _US_ [6/23/11]), the Court decided the related issue of whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification— made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. By a 5-4 vote, the Court held that "surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."

Last year I noted concern that Melendez-Diaz, itself a 5-4 decision, may not survive the replacement of Justice Souter, who was part of the majority in Melendez-Diaz, by Justice Sotomayor (see). In Bullcoming, Justice Sotomayor provide the key fifth vote, but but did not join the main opinion and, instead, wrote a concurring opinion emphasizing the limits of the Court's holding, and suggesting that that perhaps a supervisor who had some connection to the test might be an acceptable witness and that many tests would not be testimonial.

So one can expect further testing of the contours and limits of Crawford v Washington (541 U.S. 36 [2004]), particularity by prosecutors who can be expected to use Justice Sotomayor's opinion as a road map as to how to win her vote, and thus, a majority.

It is not coincidental that this difficult 5-4 win was achieved by Jeffrey Fisher, who was the successful advocate in Crawford, and seven other criminal cases at the Supreme Court prior to winning Bullcoming. That would be incredible even if Fisher was not born in 1970. Those of us a bit older who attempt to make careers as appellate counsel are in awe.

The provision in CPL § 210.30(6) authorizing denial of appellate review of a motion to dismiss an indictment for insufficiency of grand jury minutes “from an ensuing judgment of conviction based upon legally sufficient trial evidence” does not preclude appellate review of defective grand jury procedures. Thus, in People v Calkins (2011 NY Slip Op 05314 [4th Dept 6/17/11]) the Appellate Division Fourth Department held that deficient instructions to the grand jury required reversal despite a finding that the defendant had been convicted on legally sufficient proof.

In Calkins the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person with respect to the charge of assault in the second degree, the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree. The grand jury voted not to indict defendant for assault but did indict him for criminal mischief.

The Court concluded that the

defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person (see People v Huston, 88 NY2d 400, 409). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises (see § 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges...

The provision in CPL § 210.30(6) authorizing denial of appellate review of a motion to dismiss an indictment for insufficiency of grand jury minutes “from an ensuing judgment of conviction based upon legally sufficient trial evidence” does not preclude appellate review of defective grand jury procedures. Thus, in People v Calkins (2011 NY Slip Op 05314 [4th Dept 6/17/11]) the Appellate Division Fourth Department held that deficient instructions to the grand jury required reversal despite a finding that the defendant had been convicted on legally sufficient proof.

In Calkins the prosecutor properly charged the grand jury regarding justification based on the use of physical force in defense of a person with respect to the charge of assault in the second degree, the prosecutor failed to instruct the jury that such defense was also applicable to the charge of criminal mischief in the third degree. The grand jury voted not to indict defendant for assault but did indict him for criminal mischief.

The Court concluded that the

defendant was exposed to the possibility of prejudice by the deficiencies in the prosecutor's charge regarding justification based on the use of physical force in defense of a person (see People v Huston, 88 NY2d 400, 409). That error was compounded by the fact that the prosecutor also failed to charge the grand jury regarding justification based on the use of physical force in defense of premises (see § 35.20 [3]). In addition, the possibility of prejudice was increased by the failure of the prosecutor to inform the grand jury of defendant's request to call a witness to the incident giving rise to the charges...

In People v Lopez (16 NY3d 375 [2/22/11]) the Court of Appeals held that an

officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant's representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

(see).

But there is a limit to that holding- a custodial conversation with a suspect brought from his jail cell who was actually known to be represented by counsel did not violate the right to counsel where the officer

did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response (see e.g. People v Ferro, 63 NY2d 316, 321 [1984], cert denied 472 US 1007 [1985]). The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind" (People v Havrish, 8 NY3d 389, 395 [2007], cert denied 552 US 886 [2007]).

Smoking is bad for your health and your freedom. If one needs further convincing about the relationship between smoking and freedom , consider the case of Lerio Guerrero, who also was arrested based his DNA on the butt of a cigarette he had been smoking. As described in the New York Times (see), this demonstrates "a heretofore unspoken peril of smoking."

In People v Lopez (16 NY3d 375 [2/22/11]) the Court of Appeals held that an

officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant's representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

(see).

But there is a limit to that holding- a custodial conversation with a suspect brought from his jail cell who was actually known to be represented by counsel did not violate the right to counsel where the officer

did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response (see e.g. People v Ferro, 63 NY2d 316, 321 [1984], cert denied 472 US 1007 [1985]). The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind" (People v Havrish, 8 NY3d 389, 395 [2007], cert denied 552 US 886 [2007]).

Smoking is bad for your health and your freedom. If one needs further convincing about the relationship between smoking and freedom , consider the case of Lerio Guerrero, who also was arrested based his DNA on the butt of a cigarette he had been smoking. As described in the New York Times (see), this demonstrates "a heretofore unspoken peril of smoking."

In People v LaFontaine (92 NY2d 470 [1998]) the Court of Appeals held that the Appellate Divisions cannot affirm a lower court's decision for reasons which were rejected by that lower court. The lower court in LaFontaine had refused to suppress the drugs in question, but for the wrong reason, rejecting the correct reason. The Appellate Division affirmed, basing its holding on the correct rationale, which the lower court had rejected. The Court of Appeals held that this was improper, explaining that CPL 470.15 (1) bars the Appellate Divisions from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court. The Court noted

that it had previously "construed CPL 470.15 (1) as a legislative restriction on the Appellate Division's power to review issues either decidhttp://www.blogger.com/img/blank.gifed in an appellant's favor, or not ruled upon, by the trial court," citing People v Romero (91 NY2d 750, 753-753 [1998]) and People v Goodfriend (64 NY2d 695, 697-698 [1984]) (92 NY2d at 474). Because [the Court] agreed with the Appellate Division's unanimous rejection of Supreme Court's reason for denying suppression — the "only reviewable predicate for a lawful arrest" — we reversed the Appellate Division's order affirming the judgment of conviction and sentence.

In the years since LaFontaine was decided it has been largely ignored or forgotten by both attorneys and appellate courts. But the Court of Appeals in People v Concepcion (2011 NY Slip Op 05110 [6/14/11]) reminded us that LaFontaine remains good law, and the Legislature had not amended CPL 470.15 (1) in the years since LaFontaine was decided, despite an explicit invitation by the Court to do so. Judges Smith and Pigott dissented urging that LaFontaine be overruled.