Tag: First Department

The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.

Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.

Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.”  more

In a strange twist, a convicted felon, pro se, wins another crack at a suppression hearing on the basis of ineffective assistance of counsel. The  Court noted that the “record is sufficient to establish that defendant received ineffective assistance when his trial counsel failed to move to reopen the suppression hearing based on trial testimony” contradicting a previous statement(s) by law enforcement. Pp. 2. Noting the standard for reopening a suppression hearing, the Court observed that:

Under CPL 710.40(4), a suppression hearing may be reopened upon a showing that the defendant has discovered “additional pertinent facts” that “could not have [been] discovered with reasonable diligence before the determination of the motion.” Here, the additional facts were “pertinent” because the superintendent’s testimony, if credited, would have undermined the ruling that the tools were admissible because they were in plain view. This was not a minor or routine inconsistency; the superintendent’s version was completely at odds with a plain view theory. Any issue of whose recollection was most reliable should have been presented to the hearing court. With regard to the “reasonable diligence” requirement, the People argue that it was not met here because defendant, who was standing several feet from the superintendent when the police arrived, was in a position to know whether the bag was closed or open at the time. Under the rule the People posit, evidence adduced for the first time from a witness at trial — no matter how reliable the witness, how unlikely he or she would have been to cooperate with the defense investigation before trial, or how conclusively his or her testimony would undermine the suppression ruling — would never entitle a defendant to a reopened hearing, so long as the defendant was in a position where he or she could have observed the same events as the witness. We reject such a narrow reading of the statute (see e.g. People v. Figliolo, 207 AD2d 679 [1st Dept 1994]). While, as a general matter, a defendant may be presumed to have knowledge of the circumstances surrounding his or her arrest (see People v. Hankins, 265 AD2d 572 [2d Dept 1999], lv denied 94 NY2d 880 [2000]), that presumption is not mandatory, and the principle does not mandate the conclusion that such knowledge existed under the particular facts of this case.

The Court notes that the Defendant “could not have known that a People’s witness would completely contradict the police officers on the critical suppression issue. Moreover, if at the hearing, he had taken the stand to present his account of the arrest, his credibility would have been subject to impeachment because his status as an interested witness and his lengthy criminal record.” Pp. 2. In making its conclusion, the Court finds that “it is far more likely that counsel, who did not represent defendant at the suppression hearing, did not focus on the contradiction and gave no thought to a motion to reopen. More importantly, even if the dissent is correct about counsel’s subjective belief that the superintendent was mistaken about the police opening the bag, it is difficult to comprehend how opting not to give the court the opportunity to make that credibility determination for itself can be deemed a competent strategy.” P. 3. more