People v. Crevelle
| Decision Date | 25 February 2015 |
| Parties | The PEOPLE, etc., respondent, v. Yohance CREVELLE, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Howard B. Goodman, and Gamaliel Marrero of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 14, 2012, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted murder in the second degree beyond a reasonable doubt (Penal Law §§ 110.00, 125.25[1] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5 ]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
However, we agree with the defendant that the trial court erred in allowing the prosecution to call alibi rebuttal witnesses despite the prosecutor's failure to provide reciprocal notice, or to show good cause for providing late reciprocal notice as required by CPL 250.20.
Pursuant to CPL 250.20(1), the defendant served upon the prosecution written “notice of alibi.” The prosecution did not serve or file a list of any alibi rebuttal witnesses as required by CPL 250.20(2). After the defendant's girlfriend testified that he was home with her at the time of the subject shooting, the prosecutor stated her intent to call alibi rebuttal witnesses and requested an adjournment for that purpose. Among other witnesses, the prosecutor sought to call a cell phone company employee who would establish, through the defendant's cell phone records, that the defendant was not at his girlfriend's home as she claimed, but rather, was in the vicinity of the shooting when it occurred. The witness additionally would establish that during the relevant time, calls were placed between the defendant's cell phone and the girlfriend's home phone, thus showing that the two were not together.
When asked by the court why she had not provided the required alibi rebuttal notice, the prosecutor stated, among other things, that she “tactically chose” to not speak with the defendant's girlfriend before trial and she had not been certain she would be able to establish the foundation necessary for the People's rebuttal case. Over the defendant's objection, the court granted the adjournment and allowed the People to call rebuttal witnesses to establish the defendant's whereabouts via his cell phone records (cf. CPL 250.20[3], [4] ), although it held that the People could use the evidence only in rebuttal and not as evidence in its case-in-chief (cf. CPL 260.30[7] ).
In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, decided in 1973, the United States Supreme Court held that “the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants” (id. at 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 ). Notice-of-alibi statutes are required to include reciprocal discovery provisions because (id. at 475–476, 93 S.Ct. 2208, 37 L.Ed.2d 82 ). Thereafter, in 1974, the New York State Legislature amended its own notice of alibi statute to include reciprocal provisions as set forth in CPL 250.20(2), (4), and (5) (see Peter Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL C250.20).
CPL 250.20(1) provides, among other things, that within eight days of service of a demand by the People, a defendant “must” serve upon the People a “notice of alibi,” and that “[f]or good cause shown, the court may extend the period for service of the notice.” The reciprocal provision, CPL 250.20(2), provides, among other things, that “[w]ithin a reasonable time after receipt of the defendant's witness list but not later than ten days before trial,” the People “must” serve and file a list of the witnesses the People propose to offer in rebuttal to discredit the defendant's alibi at the trial, and that “ [f]or good cause shown, the court may extend the period for service” of the People's witness list.
CPL 250.20(3) provides that if the defendant calls an alibi witness at trial without having first served the requisite notice pursuant to CPL 250.20(1), the court “may exclude any testimony of such witness,” or “may in its discretion receive such testimony, but before doing so, it must, upon application” of the People, “grant an adjournment not in excess of three days” (CPL 250.20[3] ). CPL 250.20(4) provides that the provisions of subdivision (3) “shall reciprocally apply” when the People seek to offer alibi rebuttal witnesses without having given the requisite notice pursuant to CPL 250.20(2).
Here, the People contend, in effect, that, unlike CPL 250.20(2), which requires the People to show “good cause” for an extension of time to serve the list of alibi rebuttal witnesses, CPL 250.20(3) and (4) do not require such a showing for the court to exercise its discretion in receiving such testimony absent any compliance with the notice requirement. We disagree (cf. People v. Harrison, 28 A.D.3d 581, 813 N.Y.S.2d 204 ; People v. Tucker, 21 A.D.3d 387, 388, 798 N.Y.S.2d 910 ). A construction of the statute which requires good cause to be shown before trial, but not during trial, when late notice would be most prejudicial, is both contrary to the plain meaning of the statute, as well as contrary to the intent of the Legislature in amending the statute to comply with the Due Process Clause (see Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 ). To hold otherwise would mean that CPL 250.20(3) and (4) completely eviscerate the timeliness of notice requirements of CPL 250.20(1) and (2).
Further, contrary to the People's contention, this Court's decision in People v. Taylor, 114 A.D.3d 886, 980 N.Y.S.2d 795 and the First Department's decision in People v. Vasquez, 189 A.D.2d 578, 592 N.Y.S.2d 34, mod. sub nom. People v. Perez, 83 N.Y.2d 269, 609 N.Y.S.2d 564, 631 N.E.2d 570 ) do not set forth a different construction of the statute. Those cases do not address the issue of whether good cause was shown in support of the trial court's exercise of discretion pursuant to CPL 250.20(4) to allow alibi rebuttal evidence. Thus, this Court's decision in Taylor should not be interpreted to hold that the prosecution may offer alibi rebuttal testimony at trial where the prosecutor has neither complied with the notice requirement of CPL 250.20(2), nor shown good cause for failure to do so. Indeed, appellate courts have routinely upheld a trial court's decision, pursuant to CPL 250.20(3), to preclude a defendant from calling alibi witnesses who were not noticed pursuant to CPL 250.20(1) and where no good cause was shown for the delay (see People v. Wahhab, 84 A.D.3d 982, 984, 922 N.Y.S.2d 539 ; People v. Reyes, 49 A.D.3d 565, 566, 855 N.Y.S.2d 160 ; People v. Morgan, 48 A.D.3d 703, 704, 852 N.Y.S.2d 328 ; People v. Louisias, 29 A.D.3d 1017, 1019, 815 N.Y.S.2d 727 ; People v. Harrison, 28 A.D.3d at 582, 813 N.Y.S.2d 204 ; People v. Tucker, 21 A.D.3d at 388, 798 N.Y.S.2d 910 ; People v. Walker, 294 A.D.2d 218, 219, 743 N.Y.S.2d 403 ; People v. Mensche, 276 A.D.2d 834, 836, 714 N.Y.S.2d 377 ; People v. Aviles, 234 A.D.2d 466, 467, 652 N.Y.S.2d 48 ; People v. Martinez, 222 A.D.2d 702, 703, 636 N.Y.S.2d 78 ; People v. Delarosa, 215 A.D.2d 496, 497, 626 N.Y.S.2d 827 ). Since the discretion exercised by the trial court pursuant to CPL 250.20(4) is contingent upon the “reciprocal [ ]” application of the requirements of subdivision (3), the People must also establish good cause for their failure to provide the notice required by CPL 250.20(2). Moreover, as a matter of due process, the same requirements imposed upon a defendant's calling of alibi witnesses are equally applicable to the People with respect to calling alibi rebuttal witnesses (see Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 ).
Therefore, where the People have failed to comply with the notice requirement of CPL 250.20(2), a court may exercise its discretion, upon application of the People during the trial, to permit alibi rebuttal witnesses to testify only upon a showing of good cause. In considering whether to exercise its discretion to permit the evidence, the court may consider, among other relevant factors, a reasonable excuse for the delay, whether the late notice was willful or an attempt to gain strategic advantage, and any prejudice to the defendant resulting from the delayed notification (see People v. Green, 70 A.D.3d 39, 45, 890 N.Y.S.2d 65 ; ...
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