People v. Crevelle

• Decision Date: 25 February 2015
• Citation: 2015 N.Y. Slip Op. 01661,125 A.D.3d 995,3 N.Y.S.3d 410
• Parties: The PEOPLE, etc., respondent, v. Yohance CREVELLE, appellant.
• Court: New York Supreme Court — Appellate Division

?125 A.D.3d 995
3 N.Y.S.3d 410
2015 N.Y. Slip Op. 01661

The PEOPLE, etc., respondent,
v.
Yohance CREVELLE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 25, 2015

Reversed; new trial ordered.

[3 N.Y.S.3d 411]

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

[3 N.Y.S.3d 412]

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 “[t]he State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State” ( 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...