Several interesting criminal procedure decisions were handed down in May by the New York Court of Appeals:
People v. Stone, 2017 N.Y. Slip Op. 03559, 29 N.Y.3d 166 (May 4, 2017) (Court’s PDF) – Conviction affirmed where the defendant argued his right to confrontation was violated where a detective was permitted to testify that an unavailable witness had identified the defendant. The Court held that the trial court “eliminated any prejudice to defendant by striking the offending testimony from the record and instructing the jury to disregard the statements.”
People v. Bushey, 29 N.Y.3d 158, 53 N.Y.S.3d 604 (May 4, 2017) (Court’s PDF) – In this case, the Court held that a police officer may run a car’s license plate number through the government database without any suspicion of wrongdoing; that this does not constitute a search, and that any information obtained as result of such inquire may form probable cause for the police officer to stop the vehicle.
People v. Smalling, 29 N.Y.3d 981, 75 N.E.3d 665, 53 N.Y.S.3d 248 (May 2, 2017) (Court’s PDF) – In this case, the Court reversed a conviction and ordered a new trial where the trial court had agreed not to give a jury instruction on constructive possession but then ultimately did give such an instruction.
In two cases, People v. Assad Cedeno and People v. Keith Johnson, the NY Court of Appeals recently held that the defendants were deprived of their Sixth Amendment rights to be confronted with the witnesses against them by inadequately redacted statements of non-testifying co-defendants that were admitted at trial. Because the inadequately redacted statements remained facially incriminating, the convictions were reversed.
In People v. Cedeno, No. 24, 2016 NY Slip Op. 02281 (Mar. 29, 2016), which arose out of a gang fight, the lower court dealt with a statement by a co-defendant describing the defendant as “one of the Latin Kings wearing red and white trunks…[who] pulled out a knife and rushed the whole crowd and then ran over to the victim and started punching him with a small knife.” The statement was redacted to remove the description of the defendant’s clothing.
Judges Piggott and Garcia dissenting, the Court held that despite the redaction the statement remained facially incriminating and violated the defendant’s confrontation rights. The oral statement did not do so, because it contained a reference to a generic Latin King. However, the written version, which also went to the jury, replaced the description with a large blank space. The Court concluded that since the defendant was one of the three co-defendants sitting at the table with the declarant, the statement powerfully implicated him. Presumably the Court was saying that the fact that it could have implicated one of the other defendant “latin kings” at the table did not change the result.
The dissenters would have held that despite the blank spaces and clear signs of alteration the statement did not cause the jurors to realize that it specifically referred to the defendant.
In People v. Johnson, No. 25, 2016 NY Slip Op. 02282 (Mar. 29, 2016), the co-defendant had testified in the grand jury and gave a false exculpatory statement about what had occurred during the crime, which included a description of the defendant’s role in trying to rob an undercover officer in a buy and bust operation. The grand jury testimony was read into evidence. The Court rejected the People’s argument that the statement could not be inculpatory under Bruton because it offered “perfectly innocent explanation of the evening’s events.” The Court held that the co-defendant’s explicitly incriminating the defendant in possession of the robbery proceeds and in the initial stages of the drug transaction violated the defendant’s constitutional rights, even if the statement was ultimately exculpatory.