CA: no Wharton exception to 710.30 notice where "initial police viewing . . . was fleeting,unreliable and susceptible of misidentification"

People v Boyer, __ NY3d __, 2006 N.Y. Slip Op. 02290 [2006] [available here]

In the other criminal decision of note from the Court of Appeals this week, Hon. Chief Judge Kaye writes for the majority and refuses to exempt a showup identification procedure from the notice requirements of CPL 710.30 where the showup involved a police officer eyewitness and "the initial encounter . . .[was] at night, while defendant [was] stopped for a few seconds on a fire escape some 40-to-50 feet above the ground"; based on that brief encounter, the Court could "not conclude that the circumstances of [the officer's] initial viewing were such that, as a matter of law, the subsequent identification could not have been the product or undue suggestiveness." (People v Boyer, __ NY3d at __.)

The People in this case were asking the Court of Appeals to extend the Court's prior decision in People v Wharton (74 NY2d 921 [1989]), where the Court ruled that the identification of defendant by a trained undercover officer within moments of participating in a drug sale with defendant was not subject to the notice requirements of CPL 710.30 because there was virtually no chance of the identification being the product of undue suggestion. (See Wharton, 74 NY2d at 922-923.) The Court in Boyer refused to extend Wharton, instead clarifying that Wharton only applies "when the identifying officer's observation of the defendant is so clear that the identification could not be mistaken." (Boyer, __ NY3d at __.) As the Court explains, "the quality of the officer's initial viewing must be a critical factor in any Wharton-type analysis", and where the initial opportunity to observe is sketchy, the People must put the defense on notice of the identification procedure under 710.30 (and thereby give the defense an opportunity to request a Wade hearing to challenge the identification procedure). (Id. at __.)

Hon. Judge R.S. Smith dissented because (in his words) "I think that requiring a Wade hearing in cases like this one, where the chance that the hearing will lead to the suppression of evidence is vanishingly small, is a waste of time and puts an unjustified burden on the criminal justice system." (Id. at __.) Essentially, Judge Smith argues that, while police officers may conduct identification procedures in an unduly suggestive manner when dealing with civilians, in no case would an police officer due anything unduly suggestive when the showup identification procedure involved a fellow officer as the eyewitness. According to Judge Smith, "[t]he difference between police officers and civilians is significant here. An officer is much less likely than a civilian to be swayed by the assumption that a suspect who is in police custody must be guilty." (Id. at __.)

Nicole at Sui Generis has an extensive post on this decision here.

CA: "Affidavit of Regularity/Proof of Mailing" testimonial hearsay

People v Pacer, __ NY3d __ [available here]

The Court of Appeals handed down a decision today (written by Judge Rosenblatt) affirming the Fourth Department's application of Crawford v Washington to exclude as testimonial hearsay a simple DMV "affidavit of regularity/proof of mailing". I posted on the Fourth Department's decision in Pacer here. Given that the affidavit was "admittedly prepared at the People's request for use at trial", and that the affidavit was the only proof that defendant had been provided notice of his license suspension, Judge Rosenblatt found the affidavit inadmissible under Crawford; from the decision:

Faced with evidence of this type, defendants have no means of challenging the People's proof on a critical element. Without an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant's 'information and belief' that the Department mailed the notice. Defendant had no chance to inquire whether the Department sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department's database with the same name as defendant to whom the Department might have mailed the notice; to what address the affiant believed, based on her information, the Department had mailed the notice; whether the notice might have been returned undelivered; or whether the affiant could testify reliably about procedures as they existed 16 years in the past. In short, the lack of a live witness to confront eliminated defendant's opportunity to contest a decisive piece of evidence against him. This is exactly the evil the Confrontation Clause was designed to prevent.

(Id. at __.)

One other interesting note: Judge Rosenblatt notes in a footnote that "Defendant here has neither preserved nor argued any claim based on our State Constitution." (Id. at __.) Whether this is a subtle hint to criminal defense lawyers to start raising Crawford-like arguments based on the state constitution's confrontation clause is anyone's guess, although the only reason the issue would be reached under the state constitution is if the Court of Appeals was willing to provide more protections under the state confrontation clause than SCOTUS has done with Crawford under the federal constitution. Reaching the issue under the state constitution would allow the Court of Appeals to give "testimonial" a broader definition than the Supreme Court, and would also insulate New York somewhat from any subsequent Supreme Court cases that restrict the definition of testimonial (and thus the reach of Crawford).

AD 4: Sexual Abuse in the First Degree not inclusory concurrent count of Sodomy in the First Degree

People v McLaurin, __ AD3d __ [available here]

In a bit of housekeeping, the Fourth Department holds in People v McLaurin that "sexual abuse in the first degree is not a lesser included offense of sodomy in the first degree . . . [r]ather, counts charging sexual abuse in the first degree and sodomy in the first degree are noninclusory concurrent counts 'and thus both charges and convictions can stand'." (People v McLaurin, __ AD3d at __.) The Court is not breaking any new ground here--the Court of Appeals confronted this issue over 15 years ago, and held in People v Ford that, since sexual abuse requires a showing of sexual contact for the purposes of sexual gratification, and it "is possible to commit the crime of sodomy without the actor having as a purpose the gratification of either party's sexual desire", the jury "could properly convict the defendant of both crimes based on the same conduct." (People v Ford, 76 NY2d 868, 870 [1990].)

So far, nothing notable--just the Fourth Department following clear Court of Appeals precedent. What makes this case interesting is the fact that as recently as 2001, and in spite of the clear Court of Appeals precedent in Ford, the Fourth Department dismissed a count of sexual abuse in the first degree as a lesser included offense of sodomy in the first degree because "[t]here was no evidence of separate acts of sexual abuse independent of the acts of sodomy." (People v Rising, 289 AD2d 1069, 1070 [4th Dept 2001].) Thus the Court in McLaurin had to clarify that, "[t]o the extent that our prior decisions in People v Rising and People v Morello hold otherwise, they are no longer to be followed. (McLaurin, __ AD3d at __.)

AD4: no right to confront "history and character" witnesses at persistent felony offender hearing

People v Redden, __ AD3 __ [4th Dept 2006] [available here]

In another decision touching on the application of Crawford v Washington, the Fourth Department holds in People v Redden that "hearsay evidence concerning defendant's uncharged criminal conduct was properly considered by the court in determining defendant's status as a persistent felony offender" because CPL 400.20[5] specifically allows "any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence" to be considered at a PFO hearing. (Redden, __ AD3d at __; CPL 400.20[5].) Moreover, the Court essentially held that the Sixth Amendment confrontation rights apply only at trial, and a defendant "has no Sixth Amendment right to confront witnesses with respect to his history and character" at a PFO hearing. (Id. at __.)

Note that it is still an open question as to whether a defendant's Confrontation rights apply at that portion of a persistent felony offender hearing where the prosecutor has to establish the fact of a defendant's prior convictions. In that case, section 400.15[7][a] of the CPL sets forth the "[m]anner of conducting [the] hearing," and requires the People to prove the fact of a defendant's prior convictions beyond a reasonable doubt "by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Since the Supreme Court's holding in Crawford v Washington is now a "rule applicable to a trial of the issue of guilt" in New York, it would seem that Crawford would apply to exclude testimonial hearsay unless the declarant is available for cross-examination or has previously been subject to cross.

And on a practical note: if you have a "loaded and operable .45 caliber semiautomatic weapon" in the backseat, it is probably not a good idea to drive your "substantially damaged vehicle in reverse and in the wrong direction on a one-way street". (Redden, __ AD3d at __.)

Speaking of Crawford, the United States Supreme Court heard arguments yesterday in two significant cases that should help clarify what statements are "testimonial" and thus fall within the holding of Crawford. Specifically, one case deals with the admission of 911 tapes, and the other with the admission of statements of the victim contained in a police report. The New York Times has an article on the arguments here. Professor Friedman at the Confrontation Blog argued on behalf of the defendant in the "police reports" case, and he has posted links to the Reply briefs filed in both cases (arguing that 911 calls and police reports containing victim statements are testimonial hearsay).

AD4: defendant denied fair trial where parole status put before jury and trial court refused to suppress pre-Miranda statements made during transport

People v Ramos, __ AD3d __ [4th Dept 2006] [available here]

In a rare substantive reversal based (at least in part) on an exercise of its "interest of justice" jurisdiction, the Fourth Department held in People v Ramos that a defendant was denied a fair trial "because Supreme Court allowed the People to elicit testimony indicating that defendant was on parole at the time of his arrest and because the court failed to suppress prearrest statements that he made while being transported in a police vehicle." (People v Ramos, __ AD3d at __.) The trial court's first error--allowing the prosecutor to put defendant's parole status before the jury--illustrates the useful point that a door is rarely open as widely as a trial court perceives it to be. In Ramos, the defendant's parole officer was also his arresting officer, and thus testified at trial. The defendant's mother testified in a manner that contradicted certain parts of the parole/arresting officer's testimony, and the trial court "ruled, sua sponte, that the testimony of defendant's mother opened the door to the introduction of testimony concerning defendant's status as a parolee." (Id. at __.) Exercising typical restraint, "the prosecutor referred on at least 10 occasions to the status of defendant as a parolee and the fact that the arresting officer was his parole officer." (Id. at __.) The Fourth Department held that the mother's testimony "in no way misled the jury with respect to the prior criminal history or current status of defendant" and therefore the door was not opened and it was a mistake for the trial court to allow the defendant's status as a parolee before the jury. (Id. at __.)

The Court then went on to reach defendant's unpreserved suppression issue in the interest of justice, holding defendant was in custody for Miranda purposes when "handcuffed and seated in the back of the police vehicle" and that the officer engaged in "interrogation" when he "confronted defendant with the fact that a gun had been found in a plastic bag in [defendant's] bedroom [...]." (Id. at __.) Since the custodial interrogation was not preceded by Miranda warnings, suppression was required. A nice decision by the Court, all the more so because of the Court's willingness to reach clear error in the interest of justice.

AD4: What not to say at sentencing (attorney edition)

People v Lawrence, __ AD3d __ [available here]

This is not what you want your attorney to say on your behalf at sentencing:

Yes. [Defendant], pursuant to a deal we made, was supposed to get a determinant [sic] sentence of four years but [he] failed to contact me, failed to appear in court and has failed to do any other of the responsibilities that you outlined for him back when we were in court back in March. And I have explained that to him several times. I could not reach [defendant]. And in my experience with [defendant], he has showed up in my office intoxicated, threatening me and my secretary. That is all I have, your Honor.

(People v Lawrence, __ AD3d at __.)

The Fourth Department vacated the sentence based on ineffective assistance of counsel at sentencing, noting that defense counsel "'essentially[] became a witness against [defendant] and took a position adverse to him,' thereby denying him effective assistance of counsel." (Id. at __.) With defense attorneys like this, who needs prosecutors?

AD4: Autopsy report "does not for the most part constitute testimonial evidence"

People v Bryant, __ AD3d __ [available here]

In a decision handed down today, the Fourth Department has ruled that an autopsy report is only to be considered "testimonial" hearsay to the extent the report contains "the opinions of the pathologist." (People v Bryant, __ AD3d __ [4th Dept 2006].) Otherwise, according to the Court, an "autopsy report . . .does not for the most part constitute testimonial evidence." (Id. at __.) I have previously posted on this case here. I cannot disagree strongly enough with the Fourth Department's analysis. There is simply no rational basis for distinguishing between the factual findings of a pathologist contained in an autopsy report and the pathologist's ultimate opinion concerning the cause and manner of death. In a murder case, the entire autopsy report--both the factual findings and the opinion content--is prepared with the reasonable expectation that the report will be used prosecutorially and will be available for use at a later trial. At a murder trial, the factual findings of an autopsy report--i.e. information about the type and extent of a victim's injuries--are relied on by the testifying medical examiner as a basis for any opinion testimony. It seems if the right of confrontation demands the opportunity to cross-examine a pathologist concerning the ultimate opinion as to the cause of death, the confrontation right must also provide the opportunity to test the factual underpinnings of that opinion by cross-examination. The distinction drawn by the Fourth Department seems rather arbitrary, and unfortunately the three sentences devoted to explaining the Court's reasoning do not provide much illumination.

It is also difficult to square the Fourth Department's decision with the recent Court of Appeals decision in People v Goldstein (__ NY3d __ [previously discussed here]). In Goldstein, the Court of Appeals found that statements made by witnesses to the People's expert psychiatrist were "testimonial" under Crawford because the witnesses "should reasonably have expected their statements to be used prosecutorially or to be available for use at a later trial." (People v Goldstein, __ NY3d __.) Certainly the Court of Appeals drew no distinction between purely fact-based statements and opinions--rather, the only relevant question is whether a witness should expect the statement to be used by the prosecution at a subsequent trial. Under that simple test, an autopsy report--both the factual portion and any opinion content--is testimonial. The Fourth Department's decision in Bryant does not address Goldstein or otherwise attempt to justify its reasoning.

The Fourth Department also found that statements made by the victim in response to police questioning and reduced to a written deposition by the interviewing police officer were not "testimonial" because "[t]hose statements were made by the victim outside the context of any 'structured police questioning', and thus those statements did not constitute testimonial evidence." (Bryant, __ AD3d at __ [quoting Crawford].) It is not clear how much more "structured" the questioning would have to be before the Fourth Department would hold such responses testimonial. But again the Court of Appeals' decision in Goldstein seems at odds with the Fourth Department's decision--a crime victim who is responding to questions from a police officer and who signs a deposition written out for her by the police officer based on her responses should "reasonably have expected their statements to be used prosecutorially." (Goldstein, __ NY3d at __.) Again, the Fourth Department's decision does not deal with Goldstein.

Also puzzling is the Fourth Department's holding in Bryant that a statement given by an assault victim, some 9 hours after the alleged assault and where it can be inferred that the victim was sleeping for all or most of that time, was nonetheless an "excited utterance" for hearsay purposes. (See Appellant's Brief (on file with the Fourth Department) at 18-22; Respondent's Brief at 22.) The test for an excited utterance is whether the statement is made "while the nervous excitement may be supposed to still dominate the reflective powers." (People v Brown, 70 NY2d 513, 518 [1987].) I would think the fact that the victim was able to fall asleep is evidence that whatever "nervous excitement" may have been caused by the assault had dissipated. The Fourth Department does not address the fact that the victim was asleep or that over 9 hours passed between the assault and the statement; nor does the Fourth Department discuss the Court of Appeal's recent holding that there is no "injury" or pain exception to the hearsay rule. (See People v Johnson, 1 NY3d 302, 307 [2003].)

A note on this blog.

You have probably noticed a periodic lull in posts around here, mainly between terms of the Fourth Department. I have decided to keep a narrow focus for this blog, and I usually post only about new decisions from the Fourth Department and the Court of Appeals. Thus, no new decisions, no new content. The Fourth Department is handing down decisions for its February term on St. Patrick's Day (Friday, March 17), and I anticipate some new Court of Appeals decisions between now and then.