The Futility of Cross-Examinations in a World Where Past Recollections Recorded Are Admitted

In People v. Tapia (Ct. App. 4/2/19), the Court held that a testifying witness’s prior Grand Jury testimony was properly admitted as a past recollection recorded to supplement his trial testimony.

A police officer had testified, before the Grand Jury, as to the events of a violent altercation. However, at the time of trial, this officer, who had retired from law enforcement, revealed that the could not independently recall the details of the altercation. So, the People sought to have his prior Grand Jury Testimony admitted as a past recollection recorded. Defense counsel objected, claiming that such an admission would violate the Defendant’s Sixth Amendment right to confrontation since the officer would not be subject to cross-examination due to his lack of memory regarding the incident. Simultaneously, the Defendant requested a missing witness charge in the event that the officer would not take the stand. Considering these two rather contradictory arguments, the trial court found that the officer was available for confrontation as “[h]e is literally subject to cross-examination by being on the witness stand under oath and passed to [the defendant] as a witness for cross[-]examination.” The officer, therefore, testified at trial and read portions of his prior grand jury testimony into the record. On cross-examination, the officer admitted that he could not swear that he reviewed the court reporter’s transcript of his testimony for accuracy before the trial. The jury, considering all of the evidence presented, then convicted the Defendant of Attempted Assault 1°.

In considering the defendant’s appeal, the Court considered the basic requirements in admitting a past recollection recorded:

1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and 4) the witness must lack sufficient present recollection of the information recorded.

The Court determined that the trial court had not abused its discretion, and that the People properly satisfied all the requirements in the admission of the past recollection recorded in the case. During his direct examination, the officer stated that he testified truthfully before the Grand Jury, and since that testimony took place merely a few days after the alleged incident, his recollection of the altercation was fresh. The officer’s statement on cross-examination as to the court reporter’s accuracy was meritless in the eyes of the court – the court reporter certified the Grand Jury transcript as a true and accurate record of the testimony. The Defendant’s Confrontation Clause argument was similarly fruitless – after all, the purpose of the Confrontation Clause is to provide the Defendant to confront the witness “in a face-to-face encounter before the trier of fact,” which in fact happened here. Therefore, the Confrontation was not violated in this case, since the officer testified in court “even if [his] memory was faulty.” The trier of fact in this case was afforded the opportunity to assess the witness’s credence and reliability, based on his testimony during the trial itself and his grand jury testimony.

The dissent stressed that the admission of the officer’s grand jury testimony violated both CPL 670.10 and the Court’s prior decision in People v. Green. Judge Wilson, writing for the dissent, emphasized that the officer’s Grand Jury testimony had not been subject to cross-examination, and therefore, it was not “subject to vigorous truth testing.” As such, the “majority’s decision [took] a large step towards reinstating the very procedures the common law deemed illegitimate: trial by declaration or affidavit.” The majority’s decision, in fact, has the potential of setting dangerous precedent in which a defendant will no longer have the opportunity to challenge a witness’s recollection of events. Since the prosecution may admit testimony and evidence that was not subject to cross-examination, a witness with faulty memory will rely solely on what is written in the minutes or sworn affidavit. Therefore, the defendant will no longer be able to “confront” the witness, but rather will be left to “address” a document that the witness reads from in front of the fact-finder. In the case of this defendant, in particular, the dissent was largely concerned with the lack of evidence to convict the defendant of Attempted Assault 1°.

Criminal Contempt Conviction Upheld Even Without Order of Protection in Evidence

In People v. Simpson (App. Term 2d Dept. 11/29/2018), the defendant was charged with Stalking 4° for incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant’s husband. Defendant was also charged with Criminal Contempt 2° based on an incident that had occurred in October 2013, in which defendant had allegedly violated an order of protection in favor of the victim and against the defendant. After a jury trial, the defendant was convicted of Criminal Contempt 2°. The Appellate Term, Second Department, affirmed the defendant’s conviction, but the decision drew a dissent from Justice Brands.

At trial, the victim testified that in October 2013, she had been sitting in her car on the phone when the defendant approached her vehicle and asked the victim questions regarding her relationship with the defendant’s husband. The defendant then allegedly threatened the victim, telling her that “she would pay.” The victim filed a report with the police shortly after. After the People rested their case-in-chief, defense counsel unsuccessfully moved for a trial order of dismissal on the Stalking charge but also stated on the record that they could not in good-faith move to dismiss the Criminal Contempt 2º charge. Prior to summations, both parties stipulated that there was a valid order of protection in favor of the victim against the defendant at the time of the alleged incident. But a copy of the order of protection was not produced. Defendant was acquitted of the Stalking charge but convicted of Criminal Contempt 2°.

On appeal, Defendant contended that the People did not prove her guilty beyond a reasonable doubt of Criminal Contempt 2º because they failed to introduce into evidence the order of protection, and there was otherwise no proof of the conduct that it prohibited. The Court declined to review this, stating that Defendant’s claim was unpreserved when she failed to move to dismiss the charge at trial. Defendant also claimed on appeal the denial of effective assistance of counsel. Here, the Court held that the defendant was not denied effective assistance of counsel because defense counsel had extensively cross-examined the victim and brought out credibility issues that the jury took into account as well as getting an acquittal on the stalking charge.

Justice Brands would have reversed the conviction and ordered a new trial. As to the defendant’s first claim, Justice Brands agreed with the defendant’s contention that the People’s evidence was insufficient for a conviction on the criminal contempt charge. Even though it was stipulated into the record that there was a valid order of protection in place, the actual contents of the order of protection, namely delineating the type of order of protection and the conduct the defendant must refrain from doing, were not entered into the record. Without the contents of the order of protection, Justice Brands reasoned that there was no proof Defendant violated any of its terms. Because defense counsel did not move to dismiss the Criminal Contempt charge in the absence of an order of protection in evidence, Justice Brands stated that this alone would be enough to grant Defendant relief for ineffective assistance of counsel. Justice Brands stated that this case represents a “rare occasion” in which a single misstep by defense counsel can rise to the level of ineffective assistance. (MK/LC)

Preserve, Preserve, Preserve – And Don’t Threaten Eyewitnesses

In People v. Larregui (4th Dept. 9/28/18), the Fourth Department did not review many of the claims that the defendant raised based upon the fact that they were not preserved for review. The one issue the court did review revolved around the fact that a witness testifying about an event about a month following the robbery at issue.

In this case, the defendant was convicted by a jury of Robbery in both the First and Second Degree, and Assault in the Second Degree.  The case arose from an incident in which two women posing as prostitutes lured a victim into ambush by three masked men, who assaulted him, held a gun to his head and stole $200 cash.

The defendant in this case made several contentions that the court knocked down for lack of preservation: (1) that the evidence was legally insufficient to support a conviction because there was not corroborative evidence for the accomplice testimony; (2) the guilty verdict was repugnant because one of her accomplices was acquitted on all counts of the indictment; and (3) that prosecutorial misconduct deprived her of a fair trial inasmuch as she failed to object to any of the alleged improprieties.

The court noted that in order to preserve issues for review there must be objections “specifically directed at the alleged error.” Based upon the fact that there are so many issues that were dismissed on the basis that they were not preserved for review, it is clear that the Fourth Department values highly the notion of need to preserve issues for review. If an issue is not directly objected to, then it is not considered to be preserved for appellate purposes.  None of the issues were reversed in the interest of justice.

One issue that the court directly addressed was that the defendant objected to the trial court’s allowance of an eyewitness to testify regarding an incident that took place a month following the alleged robbery. The eyewitness testified that the defendant came to the eyewitness’s home, tried to break down the door, and threatened the eyewitness with violence for talking to the police. While the court does note that the defendant preserved the issue for review, it nevertheless rejected the defendant’s contention because evidence of threats made by the defendant against one of the People’s eyewitnesses, despite being prior bad acts, is admissible on the issue of consciousness of guilt. The Fourth Department noted that this was not an abuse of discretion because the probative value outweighed the prejudicial effect.  (JC/LC)

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)

Trustworthiness of Statements Against Penal Interest: How Far Should Courts Inquire?

In People v. Thibodeau (Ct. App. 6/14/18) (4-3), the defendant was convicted in 1995 of Kidnapping 1º after an 18-year-old convenience store clerk disappeared. At trial, the evidence provided that the missing clerk rang up the defendant’s brother for a pack of cigarettes just minutes before she disappeared. Eyewitness testimony also provided an account of two men and a women in the parking lot of the store near a “whitish blue van.” Other incriminating testimony offered at trial included self-declared admissions by the defendant to his inmates, including that the clerk was “killed with his shovel and mutilated.” Nineteen years later, the defendant moved to vacate his conviction because of newly discovered evidence, namely third-party admissions of three men in connection with the clerk’s disappearance.

The lower court found the new evidence lacking; it found that the third-party admissions to be inadmissible hearsay. The Appellate Division affirmed, with one dissenting Justice who granted the defendant leave to further appeal. The Court of Appeals considered whether the defendant’s motion was improperly denied by analyzing the newly admitted evidence standard.  A split 4-3 Court held that the motion was properly denied.