Author Archives: Jamie Caponera

Missing Witness Testimony: Expanding the “Noncumulative” Rule to All Four Departments

It is well-established in New York that a party may request and receive a “missing witness” jury instruction—i.e., that the jury may draw an unfavorable inference if the opposing party fails to call a witness who presumably has evidence that would aid that opposing party. People v. Smith (4th Dept. 6/29/2018) brought harmony to the Appellate Division by bringing the Fourth Department’s standard for a missing witness charge into conforming with the other three Departments.

In this case, the defendant was convicted by a jury at the lower court of Attempted Murder 2º, Assault 1º, and Criminal Use of a Firearm 1º. The defendant claims that his trial attorney rendered ineffective assistance of counsel, which the Court dismissed quickly, as the court determined defense counsel used a legitimate trial strategy.

What was at issue in this case is the contention by the defendant that Supreme Court erred in denying his request for a missing witness charge. In the First, Second, and Third Departments it is well-settled that the proponent of such a charge has the initial burden of proving that the missing witness has noncumulative testimony to offer on behalf of the opposing party.

In this case, the Court joined its sister departments and held that “when seeking a missing witness instruction, the movant has the initial, prima facie burden of showing that the testimony of the uncalled witness would not be cumulative of the testimony already given. In other words, it is the movant’s burden to establish, prima facie, that the missing witness’s testimony would not be ‘consistent with the other witnesses.'” (quoting People v Rivera, 249 AD2d 141, 142 (1st Dep’t 1998)).

In this case, the defendant failed to meet his burden. He does not argue otherwise, but simply contended that the burden was not his. The court rejected this approach in its adoption of the law, and therefore, the defendant’s conviction was affirmed.

Two Justices dissented, reading the Court of Appeals decision in People v. Gonzalez differently. They stated that the burden begins with the party seeking the charge to show entitlement, then shifts to the opposing party to demonstrate the charge would not be appropriate. In their view, it is only then that the issue of whether the testimony is cumulative would arise. (JC)

Defendant’s Waiver of Grand Jury Indictment

Initially, under the New York Constitution, criminal defendants were unable to waive an indictment by Grand Jury. However, in 1974, the Constitution was amended to permit  waiver so long as a waiver is signed in open court in front of defendant’s counsel. Recently, the Court of Appeals affirmed this practice in People v. Myers (Ct. App. 6/27/2018) (Wilson, J.) (5-2).

Mr. Myers waived his right to an indictment by the Grand Jury and immediately after pleaded guilty to Burglary 3º. Prior to this, Mr. Myers had an opportunity to confer with his counsel off the record, and while the judge called the other cases on the calendar, he had an opportunity to meet with his attorney at the lectern about the waiver form. The judge then asked Mr. Myers’ counsel if he was ready, and when he said yes, the judge signed the order approving the waiver after determining it met the statutory requirements.

Mr. Myers argued that the indictment was invalid because there was no evidence the waiver was executed in open court and there was no conversation with the court on the subject. The Appellate Division upheld the waiver.

New York Constitution, article I, section 6 allows for waiver of a grand jury indictment if it is consented by the district attorney, and “evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel.” In this case, the record shows that the waiver was signed in open court. Mr. Myers’ attorney notarized his signature on the waiver on the date of the court appearance.

The defendant’s argument that there was no inquiry by the court into whether his waiver was knowing and intelligent was unsupported by the New York Constitution, the Court held. Instead, the Court found that the requirements set forth in the statute (signed in open court, in the presence of counsel) were met. Thus, the Court declined to read into the statute the additional requirement of the judge conducting an oral inquiry on the record. The Court noted that “[c]ompliance with the constitutionally-specified waiver mechanism establishes the prima facie validity of the waiver of the right to prosecution by indictment.” There was no evidence on the record that the waiver was involuntary, unknowing, or unintelligent, so the prima facie showing was deemed by the Court to be conclusive.

Therefore, the Court affirmed the order of the Appellate Division but noted:

We emphasize, however, that the better practice—captured in the relevant model colloquy—is for courts to elicit defendants’ understanding of the significance of the right being waived, to minimize future challenges to the effectiveness of the waiver (see Waiver of Indictment; Superior Court Information Procedure & Colloquy, [accessed June 22, 2018]).

Judge Rivera dissented because she believed that “[n]o waiver is valid without sufficient judicial inquiry.” (JC)

The Necessity of Preservation for Appeal

While defendants may appeal certain rulings that took place during a trial, these issues must have been preserved properly for appeal. In People v. Bailey (Ct. App. 6/14/2018) (Rivera, J.) (6-1), the Court of Appeals held that in order to object to a trial court’s lack of inquiry following an outburst into a juror’s impartiality, the defendant must preserve the objection. Additionally, the Court found that testimony about gang customs and practices was not excessive.

This case stemmed from a trial in which defendant and two inmates were being prosecuted for assault of another inmate when they were all incarcerated at Manhattan Detention Complex. During the trial, defendant’s counsel sought to elicit statements that supported defendant’s theory that his assault was to protect himself after the complainant started a fight due to a codefendant using a racially derogatory term in his direction. On cross-examination, the defendant’s attorney asked if one of the codefendants provoked him and called him an “old n*****.” When complainant said he was not provoked and did not remember if that particular phrase was used, counsel persisted. Continue reading

Breathalyzer Results After Two Hours; An Issue of Consent

Oftentimes, when individuals refuse to submit to a breathalyzer test, there are consequences they must be warned of by police. However, these consequences are not absolute. In People v. Odum (Ct. App. 5/3/2018) (Stein, J.) (5-2), the Court of Appeals held that because the breathalyzer test was not administered pursuant to Vehicle and Traffic Law § 1194, and the defendant’s consent to take the test was not voluntary, the results of the test were properly suppressed.

The defendant in this case was arrested on multiple charges, including operating a motor vehicle while under the influence of alcohol. More than two hours after his arrest, he was asked by police to submit to a breathalyzer test. When defendant said no, he was given “refusal warnings” as set forth in Vehicle and Traffic Law § 1194. In pertinent part, these warnings indicate that if defendant refuses to submit to breathalyzer testing, his driver’s license would be revoked, whether or not he was guilty, and his refusal would be entered into evidence against him in any trial proceedings from the arrest. Following these warnings, the defendant agreed to take the breathalyzer test.

At the threshold, the Court of Appeals held that because the breathalyzer test was not performed within two hours of the defendant’s arrest, and the requirements necessary to obtain a court order pursuant to the Vehicle and Traffic Laws were not met, the tests results were not admissible under the statutory scheme. The Court then proceeded to an analysis developed in People v. Atkins, which states that the test results may still be admissible if the defendant voluntarily consented to take the test because the two hour limitation has no application when the defendant expressly consents to the test.  At issue in this case was whether the warnings given for refusal to consent were legally accurate, and thus, whether the defendant’s consent was indeed voluntary.

The Court noted that pursuant to Vehicle and Traffic Law § 1194 (2)(f), evidence of refusal to take a breathalyzer test is admissible. There is no time limit expressly enunciated in this provision. However, the Court of Appeals focused on the language of Vehicle and Traffic Law § 1194(2)(a), because § 1194 (2)(f) refers back to this section, which authorizes the chemical test. Vehicle and Traffic Law § 1194(2)(a) provides in turn that a defendant is deemed to have given consent to a chemical breath test so long as the test is administered within two hours after such person has been placed under arrest for driving while intoxicated.

Therefore, the Court of Appeals held that “because the warnings given to defendant were at least partially inaccurate — i.e., as to the admissibility at trial of his refusal to submit to testing — the courts below properly suppressed the results of the breathalyzer test on the ground that defendant’s consent to take the test was involuntary.”

Chief Judge DiFiore dissented because she believed that the only holding consistent with precedent, the purpose of the statute, and the record before the court is that the statutory two-hour rule has no applicability to the refusal warnings provided to a motorist who consents to a breath test. (JC/LC)