Category Archives: Evidence

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.

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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

Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person. Continue reading