New York Law Review

Tag: People v. Colon

  • People v. Colon, 46 N.Y.2d 722 (1978): Admissibility of Negative Identification Testimony

    People v. Colon, 46 N.Y.2d 722 (1978)

    Negative identification testimony (i.e., testimony that a witness failed to identify the defendant in a prior lineup or viewing) is generally inadmissible as evidence-in-chief because it lacks probative value and constitutes bolstering, unless offered to rebut a specific defense claim.

    Summary

    In a rape and robbery case, the New York Court of Appeals addressed the admissibility of testimony that the victim failed to identify the defendant in a prior lineup where the defendant was not present. The Court held that such evidence was inadmissible because it was not probative and served only to bolster the victim’s in-court identification. The dissent argued that the defense’s objection was sufficient to preserve the issue for appeal and that the evidence was prejudicial. The Court of Appeals affirmed the lower court’s decision to admit the testimony, because the issue was not properly preserved for appeal.

    Facts

    The victim testified that she knew her attackers from previous encounters at her apartment, where they discussed potential employment opportunities. During the investigation, the police took the victim to the moving company where the alleged attackers worked. On two occasions, the victim viewed employees but did not identify the defendant or his co-defendant. Evidence was also presented that the victim failed to identify anyone in a “blank lineup” that did not include the defendant.

    Procedural History

    The defendant was convicted of rape and robbery. The defendant objected to the admission of the negative identification testimony, arguing it was irrelevant. The trial court overruled the objection. The New York Court of Appeals affirmed the conviction, holding that the issue of admissibility was not properly preserved for appellate review because the defense did not specifically object on hearsay grounds.

    Issue(s)

    Whether the trial court erred in admitting testimony that the victim failed to identify the defendant or others in prior lineups when the defendant was not present, and whether the defendant’s objection was sufficient to preserve the issue for appeal.

    Holding

    No, because the defendant’s objection at trial was not specific enough to preserve the issue of inadmissibility for appeal. The Court found that the objection needed to be based on hearsay grounds to alert the trial court to the specific nature of the error alleged.

    Court’s Reasoning

    The Court of Appeals majority held that the defendant’s general objection to the evidence as “irrelevant” was insufficient to preserve the issue for appellate review. The dissent argued that the basis of the objection (bolstering) was clear to the trial judge and that the evidence was both nonprobative and hearsay. The dissent stated, “Fairness to the defendant requires that, rather than turn aside his contention on the basis of the hairsplitting distinction which the majority makes, we hold it sufficiently preserved and, since it was both improper and prejudicial bolstering, that we reverse and remand for a new trial.” The dissent cited to People v Jung Hing, 212 NY 393, 402: “Testimony of nonidentification is admissible, if at all, only on rebuttal and even then is not admitted to prove or disprove any fact involved in the issues on trial, but solely to support the credibility of the witness”. The dissent argued the evidence was not relevant because it did not make any fact in issue more or less probable.

  • People v. Colon, 41 N.Y.2d 941 (1977): Defendant’s Right to be Present at Sentencing and Waiver

    41 N.Y.2d 941 (1977)

    A defendant’s right to be present at sentencing in a felony case, as provided by CPL 380.40(1), can be waived, but such waiver cannot be implied when the defendant is in a nearby detention pen and no effort is made to inform them of their right to be present or return them to the courtroom.

    Summary

    Defendant Colon pleaded guilty to burglary and was sentenced to six years imprisonment. However, the sentencing occurred while Colon was in a detention pen adjacent to the courtroom, not in the courtroom itself. The New York Court of Appeals reversed the sentence and remitted the case for resentencing. The Court held that while the right to be present at sentencing can be waived, no such waiver occurred here because the defendant was nearby but not informed of his right to be present, nor was an attempt made to bring him back to the courtroom. The court also noted potential prejudice arising from the defendant’s absence during discussions of other outstanding charges.

    Facts

    Defendant Colon pleaded guilty to the crime of burglary.
    After a colloquy with the court, Colon left the courtroom and was placed in a detention pen immediately adjacent to the courtroom.
    The sentence of six years’ imprisonment was imposed while Colon was in the detention pen and not in the courtroom.
    At the sentencing, Colon’s attorney asked the court to consider three outstanding charges against the defendant.
    The prosecution opposed considering these charges unless Colon admitted guilt in open court.

    Procedural History

    The defendant was sentenced in Supreme Court, New York County.
    The Appellate Division affirmed the sentence.
    The New York Court of Appeals reversed the Appellate Division’s order insofar as it affirmed the sentence and remitted the case to the Supreme Court for resentencing.

    Issue(s)

    Whether a defendant’s right to be present at sentencing is violated when the sentence is imposed while the defendant is in a detention pen adjacent to the courtroom, without being informed of the right to be present or an attempt to return them to the courtroom.

    Holding

    Yes, because while the right to be present at sentencing can be waived, no such waiver can be implied when the defendant is nearby but not informed of their right to be present, nor is an attempt made to bring them back to the courtroom. Further, the defendant’s absence during discussions of other charges could create potential prejudice.

    Court’s Reasoning

    The Court relied on CPL 380.40 (subd 1), which mandates the defendant’s presence at sentencing in felony cases. The court acknowledged that this right can be waived, citing examples like “obstreperous conduct.” However, the court distinguished the present case, stating that “where, as here, the defendant was in the detention pen immediately adjacent to the courtroom and no effort was made to apprise him of his right to be present, nor was there an attempt made to return him to the courtroom, waiver may not be implied.”

    The Court also noted the potential for prejudice, referencing discussions about three outstanding charges against Colon while he was absent. The prosecution’s insistence on an admission of guilt in open court highlighted the significance of Colon’s presence. The Court cited People v. McClain, 35 NY2d 483, 491-492, suggesting that the absence compounded the potential for prejudice.

    The Court highlighted that even the District Attorney joined in the request for resentencing, signaling a consensus on the impropriety of the original sentencing procedure.

    In essence, the Court emphasized that while the right to be present is not absolute, the circumstances surrounding Colon’s sentencing fell short of the standard required to establish a valid waiver. The lack of communication and the defendant’s proximity to the courtroom underscored the violation of his right. The possibility of prejudice during discussions of other charges further solidified the need for resentencing with the defendant present.

  • People v. Colon, 28 N.Y.2d 1 (1971): Sufficiency of Circumstantial Evidence in Stolen Property Cases

    People v. Colon, 28 N.Y.2d 1 (1971)

    In a prosecution for criminally buying, receiving, concealing, or withholding stolen property, the element of the property being stolen can be proven by circumstantial evidence, and the recent and exclusive possession of stolen property, if unexplained, justifies the inference that the possessor is a criminal.

    Summary

    The New York Court of Appeals addressed the sufficiency of evidence required to convict individuals for receiving stolen property, specifically focusing on whether the element of the property being stolen could be proven circumstantially. The court held that the prosecution was not required to prove that someone other than the defendants committed the theft. Recent and exclusive possession of stolen property, if unexplained or falsely explained, justifies the inference that the possessor is a criminal, and the jury can determine whether the defendant is guilty as a thief or as a receiver.

    Facts

    Richard Lo Cicero, a messenger for Paine, Webber, Jackson and Curtis, left his office with stocks and bonds valued at $370,000 for delivery but never delivered them and disappeared. Detectives, posing as prospective buyers, met with several defendants to negotiate the purchase of securities. The defendants offered to sell securities, claiming they were stolen from a messenger on Wall Street a month prior. During a meeting at an apartment, one detective examined the securities and determined they matched the description of the missing securities. The defendants were later arrested in connection with the stolen securities.

    Procedural History

    Defendants Colon, Lo Ciceros, and Morelli were convicted in a jury trial of criminally buying and receiving stolen property and criminally concealing and withholding stolen property. Carol Bice’s conviction on the same charges was reversed by the Appellate Division, which dismissed the indictment. The defendants appealed their convictions, and the People appealed the reversal of Bice’s conviction, bringing the case before the New York Court of Appeals.

    Issue(s)

    1. Whether the prosecution must prove beyond a reasonable doubt that the property had been previously stolen by someone other than the accused to sustain a conviction for criminally buying, receiving, concealing, and withholding stolen property.

    2. Whether the trial court erred in instructing the jury that it could consider a violation of Section 1300 of the former Penal Law (appropriating lost property) as the underlying larceny.

    3. Whether the People’s proof was insufficient as a matter of law on the issue of venue.

    Holding

    1. No, because the element of the property being stolen can be established through circumstantial evidence, and the recent and exclusive possession of stolen property, if unexplained, justifies the inference that the possessor is a criminal.

    2. No, because where the defense raises the possibility that the property was lost, the prosecution may comment on that possibility and inform the jury that the appropriation of lost property may constitute the underlying larceny.

    3. No, because the property was found in the defendant’s possession in Kings County, which allows the inference that the criminal receipt took place in that county.

    Court’s Reasoning

    The Court of Appeals reasoned that direct evidence of the theft is not required; circumstantial evidence is sufficient. The court cited People v. Berger, 285 N.Y. 811, and People v. Nazar, 305 N.Y. 751, to support this principle. The court emphasized that the unexplained disappearance of a large value of securities and the defendants’ attempts to sell them provided an adequate basis for the inference of theft. The court stated, “Surely $370,000 worth of securities do not by their own resources work their way into the possession of six individuals in Kings County.”

    The court also held that the trial court did not err in instructing the jury on Section 1300 regarding lost property, as the defense had introduced the possibility that the property was lost. The court further stated that under an indictment pursuant to Section 1308, it is not incumbent upon the prosecution to establish beyond a reasonable doubt that the property was not stolen by the accused. “It is the law that the recent and exclusive possession of the fruits of a crime, if unexplained or falsely explained, will justify the inference that the possessor is a criminal,” quoting People v. Galbo, 218 N.Y. 283, 290.

    Addressing the venue issue, the court found that there was no proof of possession or receipt by defendants in New York County, but the defendants were found in possession of the securities and attempted to sell them in Kings County. Thus, the court reasoned, the inference that the receipt took place in Kings County was proper. The court stated, “Spivak simply stands for the proposition, asserted and reasserted by this court, that receiving is a local offense and must be tried in the county where the receipt took place.”