New York Law Review

Tag: Witness Unavailability

  • People v. Davis, 19 N.Y.3d 265 (2012): Limits on De Facto Grand Jury Dismissals

    People v. Davis, 19 N.Y.3d 265 (2012)

    A prosecutor’s withdrawal of a case from a grand jury due to witness unavailability is not a de facto dismissal requiring court authorization for re-presentation unless the grand jury has fully considered the evidence and charges.

    Summary

    Defendants Davis and McIntosh were indicted for assault after an incident at a nightclub. The prosecution initially presented evidence to a grand jury against McIntosh only, as Davis had not yet been apprehended, but withdrew the case due to witness unavailability. Later, both Davis and McIntosh were indicted by a second grand jury. The Court of Appeals held that the withdrawal from the first grand jury was not the functional equivalent of a dismissal requiring court authorization before re-presentation, because the first grand jury had not fully considered the evidence and charges against both defendants.

    Facts

    Lynn Walker was severely injured in an altercation at a nightclub, allegedly instigated by Davis and joined by McIntosh. McIntosh was arrested shortly after the incident, while Davis was apprehended later. The People began presenting evidence to a grand jury against McIntosh before Davis was arrested, advising the jury that it was a “continued case.” Walker testified that both Davis and McIntosh assaulted her. The People withdrew the case due to witness unavailability and the grand jury’s term expiring. Later, the People presented evidence to another grand jury against both Davis and McIntosh, who were subsequently indicted.

    Procedural History

    The Supreme Court denied the defendants’ motions to dismiss the indictment. Davis was convicted of assault, while McIntosh was acquitted of first-degree assault but convicted of second-degree assault. The Appellate Division reversed the judgments, holding that the withdrawal from the first grand jury was the functional equivalent of a dismissal under People v. Wilkins, requiring court permission before re-presentment. The Court of Appeals granted leave to appeal and reversed the Appellate Division’s orders.

    Issue(s)

    Whether the People’s withdrawal of their case from the first grand jury presentation, due to witness unavailability, constituted the functional equivalent of a dismissal pursuant to CPL 190.75, requiring court authorization before re-presentment to a second grand jury.

    Holding

    Yes for McIntosh; No for Davis. The order is reversed because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. As to McIntosh, no, because the proceedings before the first grand jury had not progressed to the point where it had fully considered the evidence and the charges against McIntosh.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Wilkins, which held that a pre-vote withdrawal of charges after the presentation was complete was the functional equivalent of a dismissal. The Court emphasized that Wilkins applies only in limited circumstances where the withdrawal is “fundamentally inconsistent with the objectives underlying CPL 190.75,” such as curtailing prosecutorial excess and maintaining grand jury independence (People v. Gelman, 93 N.Y.2d 314, 319 (1999)). For Davis, since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn (see People v Santmyer, 255 AD2d 871, 871 [4th Dept 1998]). The Court found that the first grand jury had not fully considered the evidence and charges against McIntosh because the People intended to present additional witnesses and had informed the grand jury that it was a continuing case. The Court emphasized that there was no evidence that the People withdrew their case to find a more compliant grand jury. The court reasoned that the focus should be on “the extent to which the Grand Jury considered the evidence and the charge” (Wilkins, 68 NY2d at 274). Because the People withdrew the charges before fully presenting their case, it did not constitute a de facto dismissal requiring court authorization.

  • People v. Gonzalez, 16 N.Y.3d 28 (2010): Confrontation Clause and Witness Unavailability

    People v. Gonzalez, 16 N.Y.3d 28 (2010)

    The right to confrontation is violated when a witness provides adverse testimony on a non-collateral matter, and the defendant is not afforded a full and fair opportunity to cross-examine that witness due to the witness’s sudden unavailability, regardless of the reason for that unavailability.

    Summary

    Defendant Gonzalez was convicted of manslaughter and criminal possession of a weapon. A key witness, Ceballo, testified implicating Gonzalez in the shooting. After her testimony, she admitted to the prosecutor that she had seen Gonzalez with a gun, contradicting her initial statement. Ceballo became unavailable before the defense could cross-examine her about this inconsistency. The defense moved to strike Ceballo’s testimony, arguing a violation of the Confrontation Clause. The trial court denied the motion, and the Appellate Division affirmed. The Court of Appeals affirmed the conviction based on harmless error, but Chief Judge Lippman dissented, arguing that the denial of the opportunity to fully cross-examine Ceballo violated Gonzalez’s confrontation rights. The Court of Appeals majority held that because cross-examination occurred, there was no Confrontation Clause violation.

    Facts

    Loraine Ceballo testified that Gonzalez and a co-defendant ran through the lobby of her building after a shooting, and she initially stated she did not see them with guns. Later the same day, she admitted to the prosecutor that she did see a gun and received one from Gonzalez. Ceballo became unavailable before the defense could cross-examine her regarding this changed testimony. Gonzalez was convicted of manslaughter in the first degree and criminal possession of a weapon in the second degree.

    Procedural History

    The trial court denied Gonzalez’s motion to strike Ceballo’s testimony. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed, with Chief Judge Lippman dissenting in a separate opinion.

    Issue(s)

    Whether the defendant’s right to confrontation was violated when a key witness became unavailable for cross-examination after providing adverse testimony but before the defense could question her about a significant inconsistency in her statements.

    Holding

    No, because the witness was cross-examined, albeit before the change in her testimony was revealed, there was no violation of the Confrontation Clause. However, Chief Judge Lippman argued yes, because the defendant was denied a full and fair opportunity to test the witness’s credibility regarding her changed testimony, which directly implicated the defendant in the crime.

    Court’s Reasoning

    The majority found no Confrontation Clause violation because the witness was subjected to cross-examination. The Chief Judge, in dissent, argued that the right to confrontation is violated when a witness provides adverse testimony and the defendant is not afforded a full and fair opportunity to test that testimony through cross-examination. Lippman argued that the reason for the witness’s unavailability is irrelevant; the critical factor is whether the defendant had a chance to fully and fairly cross-examine the witness about all relevant aspects of their testimony. He distinguished this case from cases where the witness was available but the cross-examination was limited by the court. He cited People v Vargas, 88 NY2d 363, 380 (1996) and People v Chin, 67 NY2d 22 (1986) in support of his position that denial-of-confrontation claims may arise from a witness’s midtrial unavailability for cross-examination. Lippman stated, “If testimony adverse to the defendant upon a noncollateral matter has been placed before the jury and the defendant has not been afforded an opportunity fully and fairly to test that testimony by cross-examination, the right of confrontation has been infringed. Until today, there has never been a rule that the assertion of that right was somehow dependent upon the precipitant of a witness’s unavailability.” He ultimately concurred in the affirmance because the jury acquitted the defendant of the top counts, indicating they rejected Ceballo’s testimony, mitigating any potential prejudice.

  • People v. Maher, 89 N.Y.2d 43 (1996): Hearsay Exception for Witness Unavailability Due to Defendant’s Misconduct

    People v. Maher, 89 N.Y.2d 43 (1996)

    The exception to the hearsay rule for a witness’s unavailability due to the defendant’s misconduct does not apply unless the defendant’s actions were motivated, at least in part, by a desire to prevent the witness from testifying.

    Summary

    Kenneth Maher was convicted of murder for killing his estranged girlfriend. The prosecution introduced the victim’s hearsay statements about Maher’s prior violent acts, arguing they were admissible because Maher caused her unavailability. The New York Court of Appeals held that while the ‘unavailable witness’ exception exists, it doesn’t apply unless the defendant’s actions were motivated by preventing testimony. Here, there was no evidence Maher killed the victim to prevent her from testifying; therefore, the statements were improperly admitted. However, the Court found the error harmless because of overwhelming evidence of intent and premeditation.

    Facts

    Kenneth Maher and Ann Kotel had a tumultuous relationship. After several violent incidents, Kotel contacted the police and moved out of their shared apartment. Maher was arrested after an altercation on April 30. On June 3, Maher, dressed in black and armed, broke into Kotel’s apartment and fatally shot her three times. He claimed he lacked the intent to commit murder due to medication and invoked the defense of extreme emotional disturbance.

    Procedural History

    Maher was convicted of intentional murder, felony murder, and criminal contempt in the trial court. The Appellate Division affirmed the conviction, upholding the admissibility of the victim’s statements. Maher appealed to the New York Court of Appeals, arguing the hearsay statements were improperly admitted.

    Issue(s)

    Whether the victim’s hearsay statements regarding the defendant’s prior violent acts were admissible under the exception to the hearsay rule for instances where the defendant caused the witness’s unavailability.

    Holding

    No, because the ‘unavailable witness’ exception to the hearsay rule does not apply where there is no evidence that the defendant’s actions were motivated, even in part, by a desire to prevent the victim from testifying against him. However, the error was harmless.

    Court’s Reasoning

    The Court of Appeals acknowledged the exception established in People v. Geraci, allowing the admission of out-of-court statements when a defendant wrongfully procures a witness’s unavailability. However, the Court emphasized this exception is narrow and based on necessity to prevent witness tampering. The Court reasoned that expanding the exception to all homicide cases, where the victim’s unavailability is inherent, would eviscerate the traditional dying declaration exception and require the trial court to preemptively decide the ultimate issue of the defendant’s guilt during a Sirois hearing. The Court stated, “[T]he Geraci exception cannot be invoked where, as in the instant case, there is not a scintilla of evidence that the defendant’s acts against the absent witness were motivated, even in part, by a desire to prevent the victim from testifying against him in court.”

    Despite finding the admission of the statements erroneous, the Court applied the harmless error standard, assessing whether there was a “significant probability” that the jury would have acquitted Maher absent the hearsay. The Court concluded there was no such probability. The evidence of Maher’s premeditation, including purchasing the shotgun, dressing in black, cutting phone lines, and reloading the gun between shots, strongly negated his claims of diminished intent and emotional disturbance. Additionally, Maher’s own admissions corroborated the victim’s statements, rendering the hearsay cumulative. Therefore, the Court affirmed the conviction.

  • People v. Zirpola, 57 N.Y.2d 706 (1982): Establishing ‘Exceptional Circumstances’ for Speedy Trial Delay

    People v. Zirpola, 57 N.Y.2d 706 (1982)

    The unavailability of a prosecution witness can constitute an ‘exceptional circumstance’ justifying a delay in prosecution under CPL 30.30(4)(g), provided the prosecution exercised due diligence in attempting to secure the witness’s presence.

    Summary

    The New York Court of Appeals addressed whether the unavailability of a co-defendant as a prosecution witness constituted an “exceptional circumstance” justifying a delay in bringing the defendant to trial under CPL 30.30(4)(g). The Court held that such unavailability could qualify as an exceptional circumstance, but only if the prosecution demonstrated due diligence in attempting to make the witness available. Because the lower court had not held a hearing to determine the facts surrounding the witness’s unavailability and the prosecution’s efforts, the Court of Appeals remitted the case for such a hearing to determine if the delay was justified.

    Facts

    The defendant, Zirpola, was charged with a crime. A co-defendant was a potential witness for the prosecution. A delay occurred in bringing Zirpola to trial, and Zirpola moved to dismiss the indictment based on a violation of his speedy trial rights under CPL 30.30. The prosecution argued that the co-defendant’s unavailability as a witness constituted an “exceptional circumstance” that justified the delay.

    Procedural History

    The County Court, Erie County, denied Zirpola’s speedy trial motion. The Appellate Division affirmed. The Court of Appeals reviewed the Appellate Division order. The Court of Appeals modified the Appellate Division order and remitted the case to the County Court for a hearing on the exceptional circumstances.

    Issue(s)

    Whether the unavailability of a co-defendant as a prosecution witness constitutes an “exceptional circumstance” justifying a delay in prosecution under CPL 30.30(4)(g), even in the absence of a formal continuance, and if so, what level of effort is required by the prosecution to demonstrate this circumstance?

    Holding

    Yes, because the statute explicitly states that “exceptional circumstances” are “not limited to” instances where a continuance has been granted, and the unavailability of a prosecution witness can be a sufficient justification, provided that the People attempted with due diligence to make the witness available.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 30.30(4)(g) explicitly states that “exceptional circumstances” are not limited to cases where a continuance has been granted. The Court cited People v. Goodman, 41 N.Y.2d 888. The court emphasized the importance of prosecutorial diligence, referencing People v. Washington, 43 N.Y.2d 772 and CPL 30.30(4)(g)(i). The burden of proof lies with the People to demonstrate that the co-defendant was unavailable and that they acted diligently to secure his presence, citing People v. Berkowitz, 50 N.Y.2d 333. The court acknowledged that a hearing was necessary to resolve questions of fact regarding the witness’s unavailability and the People’s efforts, referencing People v. Warren, 81 A.D.2d 872. The Court noted the lower court’s decision preceded key cases like People v. Osgood, 52 N.Y.2d 37 and People v. Lomax, 50 N.Y.2d 351. The court stated, “Whether the codefendant was at any time unavailable as a witness and what the People did to make him available are questions of fact on which the People have the burden of proof.”

  • People v. Thomas, 51 N.Y.2d 466 (1980): When a Witness Invokes Fifth Amendment Privilege

    People v. Thomas, 51 N.Y.2d 466 (1980)

    A trial court has discretion to prevent a witness from invoking the Fifth Amendment privilege against self-incrimination in front of the jury and may be required to give a neutral instruction explaining a witness’s absence if the jury is aware the witness might have information helpful to the defendant.

    Summary

    Thomas was convicted of robbery, weapon possession, and stolen property possession. At trial, two potential defense witnesses, Whitlock and Cook, indicated they would invoke their Fifth Amendment rights. The trial court refused to allow them to invoke the privilege in front of the jury and denied a request to instruct the jury about Whitlock’s absence. The Court of Appeals affirmed the conviction, holding that the trial court had discretion to prevent the witnesses from invoking their Fifth Amendment privilege in front of the jury, but also stated that a neutral instruction explaining a witness’s absence may be required if the jury is aware the witness might have information helpful to the defense. The Court reasoned that allowing the jury to hear the invocation of the Fifth Amendment could lead to unwarranted speculation.

    Facts

    Joseph Lataillade, a service station attendant, was robbed at gunpoint by a driver in a stolen car. Lataillade handed over 45-50 single dollar bills.

    Police officers spotted a matching vehicle at another service station and apprehended Thomas after a chase. Thomas had 49 single dollar bills on his person.

    Thomas claimed he borrowed the car from Alan Whitlock and that Whitlock committed the robbery.

    Whitlock and David Cook, potential defense witnesses, indicated they would invoke their Fifth Amendment privilege against self-incrimination.

    Procedural History

    The trial court convicted Thomas on all three counts.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether the defendant has an absolute right to call a witness to the stand solely to have them invoke their Fifth Amendment privilege in front of the jury.

    2. Whether the trial court erred in denying the defendant’s request for an instruction advising the jury that a witness had elected to invoke his constitutional privilege.

    Holding

    1. No, because a witness’s refusal to testify on constitutional grounds does not, in and of itself, have any real probative significance, although it may have a disproportionate impact upon the minds of the jurors and may tend to create the impression that the witness is guilty of a particular crime.

    2. No, because the invitation to the jury to engage in unwarranted speculation exists whether the jury is informed of a witness’ refusal to testify by the Trial Judge or by the witness himself.

    Court’s Reasoning

    The Court held that a trial court has discretion to prevent a witness from invoking the Fifth Amendment in front of the jury. The Court reasoned that the witness’s silence has no probative value and could lead to unwarranted speculation by the jury. The Court stated, “The rule is founded on the sound premise that a witness’ refusal to testify on constitutional grounds does not, in and of itself, have any real probative significance, although it may have a disproportionate impact upon the minds of the jurors and may tend to create the impression that the witness is guilty of a particular crime”.

    However, the Court also noted that in some cases, a neutral instruction explaining a witness’s absence may be necessary to prevent the jury from drawing an improper inference against the defendant. The Court suggested the following instruction: “There has been testimony in this case about [a witness] named [John Doe]. As a result of a hearing held outside the presence of the jury, the court has determined that [Mr. Doe] is not available to be called as a witness by either side in this case. The jury may not draw any inference from the fact that [Mr. Doe] did not appear as a witness”.

    The Court found that the defendant was not entitled to such an instruction in this case because he did not request a neutral instruction, but instead argued that he had an absolute right to have the jury informed of the witness’s decision to invoke the Fifth Amendment.

  • Hall v. Potoker, 49 N.Y.2d 705 (1980): Double Jeopardy and Mistrials Declared Due to Witness Unavailability

    Hall v. Potoker, 49 N.Y.2d 705 (1980)

    A retrial is not barred by double jeopardy when a mistrial is declared due to the unforeseeable unavailability of a crucial prosecution witness, provided the trial court properly considered alternatives and the unavailability was not due to prosecutorial misconduct.

    Summary

    Raymond Hall was indicted for selling controlled substances. During the trial, the key prosecution witness, an undercover officer, was unexpectedly hospitalized due to a severe infection. The prosecutor requested a continuance, but the defense objected, arguing it would prejudice the jury. The trial court, sua sponte, declared a mistrial over the defense’s objection. Hall then sought to prohibit a retrial based on double jeopardy. The New York Court of Appeals held that retrial was permissible because the mistrial was a manifest necessity, stemming from an unforeseeable event and not prosecutorial misconduct, and the trial court had adequately considered alternatives.

    Facts

    Raymond Hall was indicted for criminal sale of a controlled substance to an undercover officer. The prosecutor was informed that the officer would be available to testify on Wednesday, April 25, and they agreed to meet on Tuesday, April 24. On April 24, a jury was selected and opening statements were made. The prosecutor then learned that the officer had suffered a cut finger while effecting an arrest during the weekend, and the hand became severely infected, requiring hospitalization. The treating physician testified that the officer would remain in the hospital for at least a week, and would not be able to testify prior to the week of May 7, and stressed the impossibility of exact prediction.

    Procedural History

    The trial court denied the prosecution’s motion for a continuance but, over defense objections, declared a mistrial sua sponte. Hall then commenced an Article 78 proceeding to restrain his retrial. The Appellate Division dismissed the petition, holding that the mistrial was manifestly necessary and retrial would not violate double jeopardy. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether double jeopardy bars the retrial of a criminal defendant where a mistrial was declared over defense objection due to the unexpected hospitalization of a key prosecution witness.

    Holding

    No, because the declaration of a mistrial was manifestly necessary due to the unforeseeable unavailability of a crucial prosecution witness, and the trial court properly explored alternatives, and the unavailability was not due to prosecutorial misconduct.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s dismissal of the petition. The court acknowledged the defendant’s valued right to have his trial completed by a particular tribunal but weighed this against the public’s interest in fair trials. The court reiterated the classic formulation from United States v. Perez that retrial is not barred where there was “a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated.” The decision to abort a criminal trial rests within the sound discretion of the trial court, which must explore appropriate alternatives. The court noted that when a mistrial is premised upon the claimed unavailability of crucial prosecution evidence, that claim is subjected to “the strictest scrutiny” because the prosecutor is not entitled to a mistrial merely to gain “‘a more favorable opportunity to convict’”.

    The court emphasized that the witness’s unavailability resulted from an unforeseeable contingency, not prosecutorial misconduct. The prosecutor had no reason to anticipate the hospitalization. Given the defense counsel’s strenuous objection to a continuance, the trial court reasonably concluded that a continuance was not a viable option. The court stated that the trial court acted upon reliable information in declaring a mistrial, and trial courts, when considering the exigencies of a potential mistrial, “cannot be bound by the strict rules of evidence applicable at formal proceedings”. Because the trial court adequately explored the available alternatives and based its decision upon valid considerations, there was no abuse of discretion.

  • People v. Prosser, 309 N.Y.2d 634 (1974): Balancing Factors in Speedy Trial Determinations

    People v. Prosser, 309 N.Y.2d 634 (1974)

    The determination of whether a defendant’s right to a speedy trial has been violated requires a balancing of factors, including the length of the delay, the reasons for the delay, the extent of pretrial confinement, and any prejudice to the defendant.

    Summary

    Prosser was convicted of second-degree manslaughter after confessing to a killing. He appealed, arguing that the 27-month delay between his indictment and trial violated his right to a speedy trial. The delay was largely attributed to the key prosecution witness’s physical incapacity and the prosecutor’s focus on other pressing cases. The New York Court of Appeals affirmed the conviction, holding that while the delay was significant, considering all factors, including Prosser’s limited pretrial confinement, the justifications for the delay, and the lack of demonstrated prejudice to his defense, his speedy trial right was not violated. The court emphasized the need to balance competing interests and priorities in the criminal justice system.

    Facts

    Prosser fatally shot Allison in August 1968. Initially, a grand jury did not indict him after he claimed self-defense. In 1970, Prosser confessed to the killing to a fellow police officer, Cofield, who, under pretense, recorded Prosser repeating the confession and admitting to other crimes. Prosser was then indicted for murder in December 1970. He was free on bail for most of the time between indictment and trial.

    Procedural History

    Prosser was convicted of second-degree manslaughter after a jury trial. The Appellate Division affirmed the conviction. Prosser then appealed to the New York Court of Appeals, arguing a violation of his right to a speedy trial.

    Issue(s)

    Whether the 27-month delay between indictment and trial violated Prosser’s constitutional right to a speedy trial, considering the reasons for the delay and the circumstances of the case.

    Holding

    No, because considering the length of the delay, the justifications for the delay (witness incapacity and prosecutorial priorities), the limited pretrial confinement, and the lack of demonstrated prejudice to Prosser’s defense, his right to a speedy trial was not violated.

    Court’s Reasoning

    The Court of Appeals applied a balancing test, considering several factors to determine if Prosser’s right to a speedy trial was violated. These factors included the length of the delay, the reasons for the delay, the extent of pretrial confinement, and the existence of prejudice to the defendant’s ability to defend himself. Approximately 11 months of the delay were attributed to the defense, and 10 months were due to the key witness’s (Officer Cofield) physical incapacity. Another five months were due to the prosecutor’s involvement in other high-profile cases. The court noted that while a 27-month delay was significant, Prosser was on bail for most of that time, reducing the burden on him. The court distinguished this case from People v. Johnson, where the defendant was continuously jailed and asserted a plausible self-defense. Here, the court found no prejudice to Prosser’s defense. The critical issue was the authenticity of his confessions, which was not affected by the delay. The court acknowledged the importance of prioritizing jail cases and cases involving serious crimes of public significance. The court found the cross-examination of Prosser regarding other crimes was justified, given his admissions to Cofield. The court stated, “Whether one is deprived of a speedy trial depends on a number of related factors: The length of the delay, the excuses or justifications for the delay, the burden and extent of pretrial confinement, and, of course, even if not an essential factor, the existence of prejudice to defendant’s opportunity to defend. Influencing the application of the delay factor is, within tolerable limits, the temporary or permanent burdens on the prosecution in moving cases to trial.” The court concluded that the circumstances justified the delay and affirmed the conviction.