AD1: Decisions for May 1 & 3, 2007

Evidence of third-party fluid in rape victim's underwear properly excluded

People v Thomas, 2007 NY Slip Op 03775 [available here]

On trial for rape, Mr. Thomas offered evidence to show that "an amylase stain found on the victim's underwear contained DNA from an unidentified man other than defendant." (Thomas, 2007 NY Slip Op 03775.) The trial court refused to allow the evidence, and the First Department affirmed. The Court reasoned that since "it was undisputed that the victim's underwear had been removed prior to the sexual attack and that she never put it back on", Mr. Thomas could not have been the fluid donor and the evidence of third-party amylase was irrelevant. (Id. at __.) Since the third-party evidence had no probative value, the Supreme Court's decision in Holmes v South Carolina (547 US 319 [2006])--holding it was error for the trial court to preclude probative evidence a third-party culpability even in the face of overwhelming trial evidence of guilt--was not implicated.


Just the facts, officer (at least when defense counsel is doing the questioning)

People v Cestalano, 2007 NY Slip Op 03782 [available here]

Usually in a drug case, police officers are allowed to give an "expert" opinion on almost anything, be it the import of drug packaging, the significance of the recover of certain amounts and denominations of money--you name it, a narcotics officer can opine on the relative importance of most evidence in a drug case. This drives me nuts. So it warmed my heart to see the First Department hand down a decision curbing this "expert cop" free-for-all. "The officer's subjective opinions on the 'importance' of prerecorded buy money were not relevant and the court properly directed counsel to only ask questions that would elicit the facts of the case." (Cestalano, 2007 NY Slip Op 03782.)

Of course, the buy money in Cestalano was not recovered, and it was defense counsel who was questioning the narcotics officer about his opinion on the significance of the absence of the buy money. But I am sure the prosecutor would have been similarly constrained to eliciting "the facts of the case" from the narcotics officer on direct examination. And I am positive that the First Department would have reversed the defendant's conviction if the prosecutor had asked the officer to give his opinion about the relative importance of the evidence.

Umm . . .never mind. (People v Lopez, 288 AD2d 118, 119 [1st Dept 2001] ["The court properly exercised its discretion in admitting expert testimony on street-level narcotics transactions. The expert testimony was not based on speculation and was relevant to explain defendant's role in the transaction and the absence of drugs or pre-recorded buy money on defendant's person when arrested"]; See People v McNair, 26 AD3d 245 [1st Dept 2006] ["While the court should have provided limiting instructions at the time expert testimony was received regarding the practices of narcotics sellers, we find no basis for reversal"]; People v Rojas, 15 AD3d 211, 212 [1st Dept 2005] ["the court properly exercised its discretion in permitting the observing officer to give expert testimony concerning the roles of participants in street-level drug sales"].)