New York Law Review

Tag: Prosecutorial Misconduct

  • People v. Arce, 42 N.Y.2d 179 (1977): Corroboration of Accomplice Testimony and Prosecutorial Misconduct

    People v. Arce, 42 N.Y.2d 179 (1977)

    A defendant’s conviction based on accomplice testimony can be upheld if there is sufficient corroborating evidence connecting the defendant to the crime, and prosecutorial misconduct, while improper, does not warrant reversal if the trial court provides adequate curative instructions.

    Summary

    George Arce and Efrain Nieto Camara were convicted of murder and conspiracy related to a hired shooting. The prosecution’s case relied heavily on the testimony of Rafael Martinez Perez, an accomplice. The defense argued insufficient corroboration of Perez’s testimony and prosecutorial misconduct. The Court of Appeals affirmed the convictions, holding that there was sufficient corroborating evidence to connect Arce to the crime. While acknowledging instances of prosecutorial misconduct, the Court found that the trial judge’s curative instructions were adequate to mitigate any prejudice, and thus the defendants received a fair trial.

    Facts

    John Morales and Manuel Carrero were fatally shot on the Palisades Parkway. The prosecution alleged that Arce hired Camara and Perez to kill Morales for $10,000. Perez testified that Arce introduced himself the day before the shooting and that Arce identified Morales’ car at a diner prior to the shooting. Camara claimed he was merely present and that Perez shot the victims during an argument. Henry Goldman and Rocco Marino testified to witnessing the shooting. Feliz Burgos and Minerva Cuadros placed Arce, Camara, and Perez together the night before the shooting. The murder weapon was traced back to Arce. Burgos testified Arce confided in him months before that he was “going to get” Morales.

    Procedural History

    Arce and Camara were convicted of murder and conspiracy. The Appellate Division affirmed the convictions. Arce and Camara appealed to the New York Court of Appeals, arguing trial errors, including issues with accomplice testimony and prosecutorial misconduct.

    Issue(s)

    1. Whether the testimony of accomplice Rafael Martinez Perez was sufficiently corroborated to sustain Arce’s conviction.

    2. Whether the trial court erred in refusing to charge Feliz Burgos as an accomplice as a matter of law.

    3. Whether the prosecution’s attempt to elicit the fact that Camara remained silent at the time of his arrest warranted a mistrial.

    4. Whether the trial judge improperly interjected during the defense’s cross-examination of Perez regarding potential leniency for his testimony.

    5. Whether the alleged prosecutorial misconduct deprived the defendants of a fair trial.

    Holding

    1. No, because there was sufficient corroborating evidence from multiple sources connecting Arce to the crime, satisfying the statutory standard under CPL 60.22.

    2. No, because different inferences could reasonably be drawn from the disputed testimony regarding Burgos’s involvement, making the issue of whether he was an accomplice a question of fact for the jury.

    3. No, because the trial court sustained the objection to the question and provided an immediate curative instruction that effectively mitigated any potential prejudice to Camara.

    4. No, because the trial judge’s interjection was intended to clarify any possible misconceptions and did not prevent defense counsel from continuing to probe Perez’s motivations for his plea.

    5. No, because the trial court repeatedly sustained objections to the prosecutor’s improper questions and provided curative instructions to the jury, mitigating the impact of any potential prejudice.

    Court’s Reasoning

    The Court reasoned that CPL 60.22 requires corroborative evidence to connect the defendant to the crime, not to prove the crime itself. The corroboration of Perez’s testimony was deemed sufficient, stemming from multiple sources, including the direct connection between the murder weapon and Arce, Arce renting the car used by the perpetrators, and the testimony of Minnie Cuadros. Regarding Burgos, the court determined that conflicting inferences regarding his role made his status as an accomplice a question of fact for the jury.

    While acknowledging that the prosecution’s questioning of Camara regarding his silence at the time of arrest was improper under Doyle v. Ohio, the Court emphasized the curative instruction given by the judge, which was deemed sufficient to eliminate prejudice. The court stated, “[T]hough all trials must be fair, very few are perfect and many imperfections may be cured or alleviated by a wise and timely curative course on the part of the court.”

    The Court found the trial judge’s limited interjection during cross-examination of Perez was intended to clarify facts and did not impede the defense’s ability to probe the witness’s motivations. While acknowledging the prosecutor’s use of improper questioning techniques and prejudicial comments during summation, the Court noted the trial judge’s curative instructions and the defense’s failure to object to most of the comments. As such, the Court concluded that the defendants were not deprived of a fair trial.

  • Anonymous v. Andrews, 49 A.D.2d 423 (1975): Limits on Article 78 Proceedings in Criminal Matters

    Anonymous v. Andrews, 49 A.D.2d 423 (1975)

    Article 78 proceedings are generally not available to review alleged errors or defects in pending criminal actions, especially concerning prosecutorial misconduct, unless the court lacks subject-matter jurisdiction or exceeds its jurisdictional powers.

    Summary

    This case addresses whether an Article 78 proceeding (prohibition) is an appropriate method to challenge alleged prosecutorial misconduct in a pending criminal case. The petitioner argued that the Special Prosecutor’s actions in simulating a crime to investigate corruption warranted terminating the perjury actions against him. The Court of Appeals held that Article 78 relief was inappropriate because the trial court had jurisdiction, and the alleged misconduct, while potentially relevant as a defense, did not divest the court of its fundamental power to hear the case. The Court emphasized that orderly procedure dictates that such challenges be raised within the existing criminal action, not through collateral proceedings.

    Facts

    A Special Prosecutor, investigating judicial corruption, orchestrated a simulated robbery (the “Vitale” case) without the knowledge of the court or the District Attorney. This simulation aimed to create a scenario where judges and intermediaries might solicit bribes. The petitioner was subsequently indicted for perjury based on testimony given during the investigation related to the simulated robbery. The petitioner sought to halt the perjury prosecution, arguing the Special Prosecutor’s deceptive tactics tainted the entire case.

    Procedural History

    The petitioner initiated an Article 78 proceeding seeking to prohibit the perjury prosecution. The Appellate Division dismissed the petition. The petitioner appealed to the Court of Appeals, also seeking review of the denial of a motion made under Section 149 of the Judiciary Law (related to the conduct of the Grand Jury).

    Issue(s)

    1. Whether an Article 78 proceeding is an appropriate method to review alleged prosecutorial misconduct that occurred outside the scope of the pending criminal action, where the trial court has subject-matter jurisdiction.
    2. Whether the denial of a motion made pursuant to subdivision 2 of section 149 of the Judiciary Law is separately appealable.

    Holding

    1. No, because Article 78 proceedings are inappropriate to review errors or defects within a pending criminal action when the court has jurisdiction; the alleged misconduct should be raised as a defense within the criminal action itself.
    2. No, because the denial of such a motion is not separately appealable, and an Article 78 proceeding cannot be used to bypass this non-appealability.

    Court’s Reasoning

    The Court reasoned that Article 78 relief (prohibition) is reserved for instances where a court acts outside its jurisdiction or exceeds its powers. Here, the trial court had jurisdiction over the perjury charges. The alleged prosecutorial misconduct, while concerning, did not affect the court’s fundamental power to hear the case. The Court emphasized the importance of orderly procedure in criminal matters, stating that challenges to evidence or prosecutorial tactics should be raised within the criminal action itself, such as through motions to suppress evidence. Allowing Article 78 proceedings in these circumstances would disrupt the established process and encourage piecemeal appeals. The court cited Matter of State of New York v. King, noting that even serious errors should be addressed through established criminal procedure. The Court also addressed the attempt to appeal the denial of the Judiciary Law motion, emphasizing that such intermediate determinations are not appealable and cannot be circumvented via an Article 78 proceeding. The court also declined to rule on the validity of a perjury prosecution where the proceeding was designed solely to produce perjury, stating this issue involved questions of fact and should be raised as a defense in the criminal action. The court acknowledged the disadvantages of delaying resolution of intermediate issues, but reiterated that criminal actions are designed to dispose of all issues within the action itself, discouraging appeals except from a final judgment. As Chief Judge Breitel stated, “[R]espect for the rule of law which would be required of the Special Prosecutor is appropriate here too. Hence, judicial restraint must be applied in this proceeding.”

  • People v. Schneider, 36 N.Y.2d 708 (1975): Prosecution Cannot Call Witness Solely to Force Invocation of Privilege

    36 N.Y.2d 708 (1975)

    A prosecutor engages in misconduct by calling a witness who they know will invoke their Fifth Amendment privilege against self-incrimination, if the sole purpose is to create a negative inference against the defendant.

    Summary

    Alvin Schneider, a police officer, was convicted of statutory rape. A key element of the prosecution’s case involved the testimony of Maggio, a fellow officer who had previously corroborated Schneider’s version of events but later recanted and indicated he would assert his Fifth Amendment privilege. The prosecution called Maggio as a witness, knowing he would invoke his privilege. The Court of Appeals reversed Schneider’s conviction, holding that the prosecution engaged in misconduct by calling Maggio solely to allow the jury to draw a negative inference from his silence.

    Facts

    Alvin Schneider, a New York City police officer, was accused of statutory rape of a 15-year-old girl. Schneider claimed he was merely helping the girl, who was having trouble at home. He testified that he took her to a motel but left shortly thereafter. To support his story, Schneider claimed that Maggio, a fellow police officer, was with him. Maggio initially corroborated Schneider’s story during a police disciplinary investigation. However, Maggio later recanted and faced his own disciplinary proceedings. Before trial, the prosecution knew Maggio would assert his Fifth Amendment privilege if called to testify.

    Procedural History

    Schneider was convicted after a jury trial. He appealed. The Appellate Division reversed the conviction. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecution committed prejudicial misconduct by calling a witness, Maggio, knowing that he would invoke his Fifth Amendment privilege against self-incrimination, when the primary purpose was to allow the jury to draw an adverse inference against the defendant.

    Holding

    Yes, because calling a witness solely to have them invoke their Fifth Amendment privilege, thereby inviting the jury to draw adverse inferences against the defendant, constitutes prosecutorial misconduct and warrants a new trial.

    Court’s Reasoning

    The Court of Appeals agreed with the dissenting justices at the Appellate Division who believed that the prosecution’s use of Maggio’s testimony was improper. The dissent argued that the prosecution knew Maggio would invoke his Fifth Amendment privilege. The court found that calling Maggio served no legitimate purpose other than to prejudice the jury against Schneider by implying that Maggio’s silence was an admission of Schneider’s guilt. The court emphasized that the prosecution cannot make a “conscious and flagrant attempt to build [a] case out of inferences arising from [Maggio’s] use of the testimonial privilege.” The court contrasted the situation with cases where the witness’s testimony served some other legitimate purpose, such as providing direct evidence or being subject to cross-examination on other matters. In this case, Maggio’s invocation of the privilege denied Schneider a fair opportunity to rebut the negative inference created by his silence. The dissent in the Court of Appeals argued that Schneider injected Maggio into the case and opened the door to Maggio’s testimony; therefore, no error occurred. The majority rejected this argument and reversed the conviction, ordering a new trial.

  • People v. Blakley, 34 N.Y.2d 311 (1974): Plea Bargaining and Waiver of Speedy Trial Rights

    People v. Blakley, 34 N.Y.2d 311 (1974)

    A prosecutor cannot condition a plea bargain on the defendant’s waiver of their right to a speedy trial, as this is inherently coercive, and an unreasonable delay in bringing a defendant to trial violates their right to a speedy trial under the Sixth Amendment and relevant state statutes.

    Summary

    George Blakley was indicted for assault and firearm possession in 1966, but his trial did not begin until 1969. During the trial, the prosecutor offered a reduced plea deal on the condition that Blakley withdraw his motion to dismiss the indictment for lack of speedy trial. Blakley accepted, but appealed, arguing his right to a speedy trial was violated. The New York Court of Appeals held that conditioning a plea bargain on waiving speedy trial rights is inherently coercive and violates public policy. Furthermore, the Court found Blakley’s right to a speedy trial was indeed violated due to the significant delay and lack of good cause shown by the prosecution.

    Facts

    George Blakley, Jr. was arrested on November 15, 1965, and indicted on January 11, 1966, for assault and possession of a loaded firearm. The charges stemmed from an incident on November 14, 1965, where Blakley allegedly shot and wounded two individuals. The case experienced significant delays and did not proceed to trial until February 4, 1969, over three years after the indictment. During the trial, after the testimony of the victims, Blakley offered to plead guilty to two counts of assault in the second degree.

    Procedural History

    Blakley was indicted in January 1966. In February 1968, Blakley moved to dismiss the indictment for failure to prosecute. The County Court denied the motion. Blakley then pleaded guilty during trial after a plea bargain conditioned on withdrawing the speedy trial motion. He appealed the judgment of conviction, arguing his speedy trial rights were violated. The New York Court of Appeals reversed the order and dismissed the indictment.

    Issue(s)

    1. Whether a prosecutor may condition a plea offer on the defendant withdrawing a speedy trial claim.
    2. Whether the delay between indictment and trial violated the defendant’s right to a speedy trial.

    Holding

    1. No, because conditioning a plea bargain on waiving a speedy trial claim is inherently coercive and against public policy.
    2. Yes, because the prosecution failed to show good cause for the significant delay in bringing the defendant to trial.

    Court’s Reasoning

    The Court reasoned that the right to a speedy trial is not solely for the defendant’s benefit, but also serves a societal interest. Conditioning a plea bargain on waiving this right allows prosecutors to submerge speedy trial challenges, potentially leading innocent defendants to plead guilty to avoid an unfair, delayed trial. The Court emphasized that “the criminal justice system should scrupulously avoid the possibility that a plea of guilty may be tainted by unfairness.” The Court also found the purported waiver of the speedy trial claim ineffectual due to the coercive nature of the plea bargain.

    Regarding the speedy trial claim, the Court applied Section 668 of the Code of Criminal Procedure, which required the prosecution to show “good cause” for delays. The Court also considered the factors outlined in Barker v. Wingo: the length of the delay, the reasons for the delay, the defendant’s assertion of the right, and the prejudice to the defendant. The Court found the 34-month delay between indictment and the defendant’s change of attorney was excessive. While calendar congestion and a missing witness were cited as reasons for the delay, the Court found them insufficient. The Court noted the witness (Young) was available for a significant period and the District Attorney’s office did not diligently attempt to secure his presence. Ultimately, the Court concluded that the length of the delay and the defendant’s assertion of his right outweighed the reasons offered by the prosecution, thus violating Blakley’s right to a speedy trial.

  • People v. Session, 34 N.Y.2d 254 (1974): Sufficiency of Allegations for Coram Nobis Relief

    People v. Session, 34 N.Y.2d 254 (1974)

    A defendant seeking coram nobis relief (now a motion to vacate judgment) must provide supporting evidentiary facts, not just conclusory allegations, to warrant a hearing; these facts must include the substance of potential witness testimony and how it would have benefited the defendant.

    Summary

    Josh Session appealed the denial of his coram nobis relief petition, arguing that the supporting affidavits from his codefendants warranted a hearing. These affidavits alleged an Assistant District Attorney threatened the codefendants with increased charges if they testified on Session’s behalf. The New York Court of Appeals held that Session’s allegations were insufficient because the affidavits lacked specific details about the potential testimony and its relevance to his defense. The Court affirmed the denial but granted Session leave to renew his application with proper affidavits.

    Facts

    Josh Session sought coram nobis relief, claiming prosecutorial misconduct. He presented affidavits from three codefendants alleging that an Assistant District Attorney (ADA) threatened them with increased charges if they testified on his behalf. The affidavits stated the ADA’s threats, but did not describe the substance or content of the testimony the codefendants would have provided.

    Procedural History

    Session’s initial petition for coram nobis relief was denied. He appealed this denial. The Appellate Division affirmed the lower court’s decision. Session then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the allegations contained in Session’s petition and supporting affidavits, specifically regarding prosecutorial misconduct, are sufficient to require a hearing for coram nobis relief.

    Holding

    No, because Session’s affidavits contained only conclusory allegations and lacked supporting evidentiary facts detailing the substance of the potential witness testimony and how it would have benefited his defense.

    Court’s Reasoning

    The Court of Appeals emphasized that a judgment of conviction is presumed valid, and the defendant bears the burden of presenting allegations sufficient to create a factual issue. While contrary evidence can eliminate the presumption of regularity, bare allegations are insufficient. The court stated, “In a coram nobis application, it is not enough to make conclusory allegations of ultimate facts; supporting evidentiary facts must be provided.” The court reasoned that Session failed to provide the substance of the testimony his potential witnesses would have given and how that testimony would have helped his case.

    The Court acknowledged that the ADA’s denial and defense counsel affidavits placed the question of intimidation in issue but did not conclusively refute Session’s allegations. However, because Session failed to meet his initial burden of providing sufficient evidentiary facts, he was not entitled to a hearing. The Court noted that it did “not condone the alleged intimidation” but affirmed the denial of relief because of the insufficient submission. The court granted leave to renew the application with proper affidavits, implicitly setting a standard for future petitions. The Court contrasted this case with situations where documentary evidence conclusively refutes a defendant’s claims, warranting denial without a hearing.

  • People v. Stridiron, 33 N.Y.2d 287 (1973): Limits on Cross-Examination and Prosecutor’s Duty to Disclose

    People v. Stridiron, 33 N.Y.2d 287 (1973)

    While a defendant has a Sixth Amendment right to confront witnesses, including cross-examination to reveal potential biases, curtailing such cross-examination is harmless error if other evidence supports the verdict and the jury is aware of the witness’s potential incarceration.

    Summary

    William Stridiron was convicted of second-degree manslaughter for the stabbing death of Leonard Wilson during a bar fight. Stridiron appealed, arguing that the trial court improperly limited his cross-examination of a prosecution witness and that the prosecutor failed to disclose favorable evidence. The New York Court of Appeals affirmed the conviction, holding that while limiting cross-examination was error, it was harmless beyond a reasonable doubt due to other eyewitness testimony and the jury’s awareness of the witness’s incarceration. The Court also found no suppression of evidence, as the defense received the witness information at the close of the prosecution’s case.

    Facts

    During a bar fight, William Stridiron stabbed Leonard Wilson, resulting in Wilson’s death. The altercation began over a stolen coat. Stridiron drew a knife after Wilson refused to drop the subject and punched him. Stridiron stabbed Wilson multiple times, even chasing him out of the bar while brandishing the knife. Police arrested Stridiron, who admitted to having a knife and possibly stabbing someone. Two eyewitnesses, Basden and Gatewood, testified for the prosecution. Stridiron’s mother and her companion testified that Wilson attacked Stridiron with a pool cue.

    Procedural History

    Stridiron was indicted for first-degree manslaughter and convicted by a jury of second-degree manslaughter in the Supreme Court, Queens County. He was sentenced to an indeterminate prison term with a maximum of 10 years. The Appellate Division unanimously affirmed the conviction. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court’s restriction on cross-examination of a prosecution witness regarding his incarceration at Rikers Island violated the defendant’s Sixth and Fourteenth Amendment rights to confront witnesses?

    2. Whether the prosecution’s failure to call certain eyewitnesses and alleged suppression of evidence favorable to the defense denied the defendant a fair trial?

    3. Whether the defendant’s guilt was proven beyond a reasonable doubt?

    Holding

    1. No, because while it was error to restrict cross-examination, it was harmless beyond a reasonable doubt given the existence of other eyewitness testimony and the jury’s awareness of the witness’s incarceration.

    2. No, because the prosecution has no duty to call every witness, and the defense received the witness information and chose not to call them.

    3. Yes, because there was ample evidence from which the jury could conclude that the defendant recklessly caused the death of the victim and was not justified in using deadly force.

    Court’s Reasoning

    The Court acknowledged the defendant’s right to cross-examine witnesses to show potential bias, including whether the witness’s testimony was affected by fear or promise of favor stemming from their detention. However, the Court distinguished this case from Smith v. Illinois, where the curtailed cross-examination concerned the sole prosecution witness. Here, two eyewitnesses testified, and the defense elicited that the witness had been interrogated at Rikers Island, allowing the jury to infer incarceration.

    Regarding the prosecution’s failure to call certain eyewitnesses, the Court stated that there is “no duty on the prosecutor to call at trial every witness to a crime or to make a complete and detailed accounting to the defense of all law enforcement investigatory work.” The Court emphasized that the names, addresses, and statements of these witnesses were provided to the defense at the close of the prosecution’s case, and the defense chose not to call them. Therefore, there was no suppression of evidence. The Court cited Brady v. Maryland, stating the prosecutor has a duty to disclose information in his possession that is favorable to an accused and material to guilt or punishment. However, that did not occur here.

    The Court found sufficient evidence to prove guilt beyond a reasonable doubt, including eyewitness testimony and the defendant’s admission. The Court also noted that the defendant failed to retreat before using deadly force and chased the decedent out of the bar. The Court stated, “As there was no evidence that the two companions of the decedent were about to use deadly force on the defendant, he was not entitled to a charge to the effect that the use of deadly physical force would be justified if he reasonably believed that the deceased or others acting in concert with him were about to inflict grievous bodily harm.”

  • People v. Washington, 27 N.Y.2d 401 (1971): Defendant’s Prior Knowledge as a Bar to Relief for Perjured Testimony

    People v. Washington, 27 N.Y.2d 401 (1971)

    A defendant with prior knowledge of a witness’s perjury regarding promises of leniency from the prosecution, who fails to disclose this knowledge to the court or jury, is barred from later seeking relief based on that perjury.

    Summary

    Washington sought coram nobis relief, arguing that a prosecution witness, Anderson, falsely testified he had no expectation of leniency. The prosecutor knew this was false but did not correct it. Normally, this would warrant a new trial. However, Washington knew of the promises to Anderson *before* his trial. Despite this knowledge, Washington did not reveal it when questioned about Anderson’s motives. Washington’s counsel also confirmed that Washington had told him about the promises before the trial. The court held that because Washington knew of the perjury and failed to act, he was barred from relief. The court emphasized it would be punishing the People rather than protecting legitimate interests of the defendant.

    Facts

    1. Martin Anderson, a key prosecution witness in Washington’s trial, testified he had no reason to expect leniency in exchange for his testimony.
    2. This testimony was false; Anderson had received assurances of leniency from the prosecutor.
    3. After Washington’s trial, the indictment against Anderson was dismissed based on his cooperation in Washington’s trial.
    4. Prior to his own trial, Washington was informed by Anderson about the promises of leniency.
    5. During his trial, when questioned about Anderson’s motives, Washington was evasive and did not disclose his knowledge of the promises.

    Procedural History

    1. Washington was convicted based, in part, on Anderson’s testimony.
    2. Washington then filed a coram nobis application, claiming that Anderson’s false testimony warranted a new trial.
    3. The lower court denied the application.
    4. The New York Court of Appeals affirmed the denial.

    Issue(s)

    1. Whether a defendant, who knew before his trial that a prosecution witness perjured himself regarding promises of leniency and failed to disclose this knowledge, is entitled to coram nobis relief based on that perjury.

    Holding

    1. No, because both the defendant and his counsel, with knowledge of the facts, stood silently by and did nothing themselves to remedy the situation; the court will not merely punish the prosecution and thus penalize the People, where there cannot be said to be legitimate interests of the defendant to be protected.

    Court’s Reasoning

    The Court of Appeals acknowledged the prosecutor’s failure to correct Anderson’s false testimony would normally warrant reversal under People v. Savvides. However, the court distinguished this case because Washington knew of the perjury before his trial and failed to disclose it. The court reasoned that allowing Washington to benefit from this situation would be unfair because he knowingly withheld information that could have been used to impeach Anderson’s testimony. The court stated, “Where, however, as here, both the defendant and his counsel, with knowledge of the facts, stood silently by and did nothing themselves to remedy the situation, we would make a very limited exception to the Savvides rule. To do otherwise, in our view, would be merely to punish the prosecution, and thus to penalize the People, where there cannot be said to be legitimate interests of the defendant to be protected.” The court emphasized the need to protect the integrity of the trial process and prevent defendants from strategically withholding information to secure a later advantage. The court declined to penalize the People when the defendant possessed, and failed to utilize, the pertinent exculpatory information.

  • People v. Caserta, 19 N.Y.2d 18 (1966): Admissibility of Composite Sketches in Criminal Trials

    People v. Caserta, 19 N.Y.2d 18 (1966)

    A witness may not testify to an extrajudicial identification of a composite sketch of the defendant; however, the sketch can be used in suppression hearings regarding probable cause or during cross-examination to highlight inconsistencies in identification.

    Summary

    Caserta was convicted of robbery, and the prosecution presented testimony from an identifying witness who had worked with a police artist to create a composite sketch of the suspect four days after the crime. The admission of the composite sketch and testimony about its creation was challenged on appeal. The New York Court of Appeals reversed the conviction, holding that the introduction of the composite sketch through the identifying witness was prejudicial error. The court reasoned that it violated the established rule against bolstering a witness’s identification with prior consistent statements or extrajudicial identifications of photographs. The court also found that the prosecutor’s prejudicial misstatements during summation warranted a new trial.

    Facts

    The defendant, Caserta, was accused of robbery.
    An identifying witness testified at trial.
    Four days after the robbery, the witness collaborated with a police artist to create a composite sketch of the suspect.
    Over the defense’s objection, the trial court admitted the composite sketch into evidence, and the witness testified about creating it.
    During summation, the prosecutor made statements implying the defendant altered his appearance after the robbery.

    Procedural History

    The defendant was convicted of robbery in the trial court.
    The defendant appealed the conviction, arguing that the admission of the composite sketch and the prosecutor’s statements were errors.
    The New York Court of Appeals reviewed the case.

    Issue(s)

    Whether the admission of the composite sketch and testimony regarding its creation constituted reversible error.
    Whether the prosecutor’s prejudicial misstatements during summation warranted a new trial.

    Holding

    Yes, because a witness cannot testify about an extrajudicial identification of a composite sketch, similar to the rule against extrajudicial photo identifications, and the sketch’s admission was prejudicial, given that identification was key to the case.
    Yes, because the prosecutor’s statements were not supported by evidence and demonstrably influenced the jury, and the court failed to cure the prejudice.

    Court’s Reasoning

    The Court of Appeals reasoned that allowing the identifying witness to testify about the composite sketch and admitting the sketch itself was similar to allowing testimony about extrajudicial photo identifications, which is prohibited under New York law because it improperly bolsters the witness’s testimony. The court stated, “The rule is settled in this State that a witness may not testify to an extrajudicial identification of a photograph of the defendant.” The court extended this rule to composite sketches, stating, “The reason for that rule applies with greater force in the case of a composite sketch.” The court acknowledged that other jurisdictions have varying rules on the admissibility of composite sketches but adhered to the established New York precedent. The court clarified that composite sketches could be used in suppression hearings to establish probable cause or during cross-examination to highlight inconsistencies.

    The court also addressed the prosecutor’s statements during summation, finding them to be prejudicial because they implied that the defendant had altered his appearance to avoid identification and that the statements were unsupported by evidence. The court noted the jury’s interest in the alleged alteration, demonstrated by their request for a magnifying glass, indicating the prosecutor’s statements influenced their deliberations. The court stated that the trial court erred by not allowing the defendant to rebut the prosecutor’s statements or instructing the jury to disregard them, citing precedent such as People v. Fleischman, 10 N.Y.2d 1025 (1961).

  • People v. Kass, 32 N.Y.2d 123 (1973): Admissibility of Cross-Examination Regarding Prior Bad Acts and Destruction of Evidence

    People v. Kass, 32 N.Y.2d 123 (1973)

    A prosecutor may cross-examine a testifying defendant about prior immoral, vicious, or criminal acts relevant to credibility if the questions have a good faith basis in fact; however, a new trial is warranted if the prosecution misled the defense regarding the destruction of original evidence and substitution with retranscribed notes.

    Summary

    Defendant Kass, an attorney, was convicted of bribery and conspiracy. The prosecution’s case hinged on Sergeant Hoelzer’s testimony that Kass paid him for police protection. On cross-examination, the prosecutor asked Kass about misappropriating diamonds. Kass argued this was improper. The court held the cross-examination permissible, finding a good-faith basis. However, the court reversed the conviction and ordered a new trial because Kass received retranscribed notes of Sergeant Hoelzer and was misled into believing he possessed the original notes, which had been destroyed after a prior trial. The court reasoned that the destruction of the original notes prejudiced the defense’s ability to effectively cross-examine the key prosecution witness.

    Facts

    • Kass, an attorney, was charged with bribery and conspiracy related to payments for police protection.
    • Sergeant Hoelzer testified that Kass agreed to pay him $500 weekly for protection of illegal activities and made the first payment.
    • Kass admitted many events but denied wrongdoing.
    • During cross-examination, the prosecutor asked Kass if he had “misappropriated two diamonds worth about $4,000 from a jeweler.”
    • Original notes of Sergeant Hoelzer regarding his investigation were given to Kass at a previous trial but were destroyed after the first trial. At the second trial, he was provided with retranscribed notes.

    Procedural History

    • Kass was initially tried on charges related to conspiracy and bribery of Sergeant Hoelzer but was acquitted.
    • He was then separately tried and convicted on a second indictment charging him with conspiracy to bribe and bribery of a public officer.
    • Kass appealed, arguing the cross-examination about the diamonds was improper and that he was misled regarding the notes.

    Issue(s)

    1. Whether the prosecutor’s cross-examination of Kass regarding the alleged misappropriation of diamonds was proper.
    2. Whether the destruction of Sergeant Hoelzer’s original notes and the provision of retranscribed copies to the defense warrants a new trial.

    Holding

    1. Yes, because the prosecutor demonstrated good faith and had a factual basis for asking about the diamond misappropriation.
    2. Yes, because Kass was misled into believing he possessed the original notes, hindering his ability to effectively cross-examine the key prosecution witness.

    Court’s Reasoning

    • Cross-Examination: The court stated that a testifying defendant may be cross-examined about immoral, vicious, or criminal acts bearing on credibility, even if not similar to the charged crime, provided there is a good faith basis in fact. The court found the prosecutor showed good faith by stating he’d been informed by the jeweler’s attorney that Kass received the diamonds on consignment and failed to return them. The jeweler’s concern and willingness to travel to the trial supported the prosecutor’s good faith. The court cited People v. Schwartzman, 24 N.Y.2d 241, 244 and People v. Alamo, 23 N.Y.2d 630.
    • Destruction of Notes: The court acknowledged Kass’s right to examine a witness’s prior statements relating to their testimony under People v. Malinsky, 15 N.Y.2d 86, 90, and People v. Rosario, 9 N.Y.2d 286. While Kass received notes, he was misled into believing they were original. The court reasoned this prejudiced Kass, as he could not inquire into the circumstances of the destruction to test Hoelzer’s credibility. The court mandated that at the new trial, the jury be instructed to weigh Hoelzer’s testimony considering the unavailability of the original notes for cross-examination.

  • People v. Damon, 24 N.Y.2d 256 (1969): Prosecutorial Misconduct and Tainted Identification Procedures

    People v. Damon, 24 N.Y.2d 256 (1969)

    A criminal conviction will be reversed when prosecutorial misconduct during summation creates a risk of prejudice, and when pre-trial identification procedures are so suggestive as to taint subsequent in-court identifications.

    Summary

    Richard Damon was convicted on multiple charges, including carnal abuse and burglary. The prosecution’s summation contained inflammatory remarks and improper attacks on the defense counsel. Additionally, the initial lineup procedure was unduly suggestive. The New York Court of Appeals reversed the conviction, holding that the prosecutorial misconduct risked prejudice and that the tainted lineup procedure potentially influenced the in-court identifications. The Court emphasized the need for a fair trial and the careful handling of identification evidence.

    Facts

    Two incidents occurred in Depew, New York: a man broke into a home and molested a nine-year-old girl on October 13, 1965, and a man attempted to enter a home where a fourteen-year-old girl was alone on October 16, 1965. In both instances, the perpetrator was seen leaving in a white Cadillac convertible. Damon, a 39-year-old bartender who drove a white Cadillac convertible, became a suspect. Three days after the second crime, Lieutenant Maccarone brought Damon to the police station. The two victims identified Damon in an informal lineup and a formal lineup. The younger girl’s father also identified Damon. Damon’s defense was mistaken identity, presenting alibi witnesses who placed him at work around the time of the second crime, and evidence making it impossible for him to have committed the first crime.

    Procedural History

    Damon was convicted of carnal abuse, assault, and burglary based on two indictments. He appealed, arguing prosecutorial misconduct and improper identification procedures. The appellate court considered these arguments and the totality of the circumstances of the trial.

    Issue(s)

    1. Whether the prosecutor’s summation was so inflammatory and prejudicial as to warrant a new trial.

    2. Whether the lineup procedures used in this case violated the defendant’s due process rights.

    3. Whether the trial court erred in directing the defense to supply the prosecution with prior statements of defense witnesses.

    Holding

    1. Yes, because the prosecutor’s improper comments and attacks on defense counsel during summation created a risk of prejudice to the jury.

    2. Yes, because the informal lineup was unduly suggestive, potentially tainting the subsequent formal lineup and in-court identifications.

    3. No, because the defendant is not being compelled to produce self-incriminating statements. The statements were those of witnesses offered by the defendant.

    Court’s Reasoning

    The Court found that the prosecutor’s summation included improper references to the heinous nature of the crimes, possible deviate behavior, and attacks on defense counsel. Even though objections were not made to all statements, sufficient protest was recorded to preserve the issue for review. The Court reasoned that in a case of this nature, which tends to arouse emotions, it could not be certain that the summation did not prejudice the jury. Referencing People v. Adams, 21 N.Y.2d 397, 401-402 and People v. Mleczko, 298 N.Y. 153, 163, the court emphasized the need to avoid any sense of insecurity regarding potential prejudice.

    Regarding the lineup procedures, the Court determined that the initial informal lineup, where the victims viewed Damon through a mirror while he stood at the complaint desk, was “clearly improper, constituting little more than a showup” (citing People v. Brown, 20 N.Y.2d 238). Because of this, the subsequent formal lineup was deemed suspect. The Court directed that a hearing should be held outside the presence of the jury to determine whether the in-court identifications were tainted by the suggestive circumstances surrounding the informal lineup, and the People must demonstrate by clear and convincing evidence that the in-court identification was not the product of suggestive circumstances surrounding the ‘informal’ lineup.

    Regarding discovery, the Court stated, “We have recognized the defendant’s right to obtain and inspect statements of prosecution witnesses for possible use in cross-examining them (see People v. Rosario, 9 Y 2d 286). There is neither reason nor justification for not allowing the Peoplg to procure from the defendant statements taken from his witnesses for the same purpose of cross-examining them.”