People v. Graham

CourtNew York Supreme Court
Writing for the CourtRONALD A. ZWEIBEL; With regard to convictions already final coming up on collateral review, however; Concurring in the judgment
Citation140 Misc.2d 417,531 N.Y.S.2d 172
Decision Date19 May 1988
PartiesThe PEOPLE of the State of New York v. Melvin GRAHAM, Defendant.

Page 172

531 N.Y.S.2d 172
140 Misc.2d 417
The PEOPLE of the State of New York
v.
Melvin GRAHAM, Defendant.
Supreme Court, Criminal Term,
Kings County, Part 14.
May 19, 1988.

Melvin Graham, pro se.

Office of the Dist. Atty., Elizabeth Holtzman, Dist. Atty., Kings County (Barbara D. Underwood, Brian D. Foley, Brian J. Mich), for respondent.

RONALD A. ZWEIBEL, Justice.

Defendant Melvin Graham moves pursuant to C.P.L. § 440.1 (1)(h) for an order vacating his judgment of conviction of robbery and felony murder on grounds that his Sixth Amendment right to confrontation was violated by the admission of his non-testifying co-defendant's confession at their joint trial.

Defendant raised this issue previously on direct appeal. On May 12, 1986, the Appellate Division, Second Department, affirmed defendant's judgment of conviction, holding that defendant's own confession "interlocked" with his co-defendant's, and therefore it was "unlikely that any prejudice to this defendant resulted from the admission of his codefendant's confession." ( People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83). Leave to appeal to the Court of Appeals was subsequently denied. (68 N.Y.2d 812, 507 N.Y.S.2d 1030, 499 N.E.2d 879).

Page 173

Under C.P.L. § 440.10(2)(a), a court must deny a motion to vacate judgment when

the ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment.

There is an exception to this rule for cases where there has been an intervening "retroactively effective change in the law controlling such issue." C.P.L. 440.10(2)(a).

Defendant argues that Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162, created just such a retroactively-effective change in the law since his appeal became final.

BACKGROUND OF CRUZ v. NEW YORK

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court held that a defendant is deprived of his Sixth Amendment right to confrontation when a non-testifying co-defendant's confession implicating the defendant is admitted at their joint trial. Overruling prior case law, the Court found that a limiting instruction is inadequate protection because of the likelihood that jurors would be unable to obey such an instruction and that prejudice would thereby result.

Shortly after Bruton, the New York Court of Appeals carved out an exception to the Bruton rule for "interlocking confessions." The Court found that " 'where the jury [hears] not only a codefendant's confession but the defendant's own confession no such "devastating" risk attends the lack of confrontation as was thought to be involved in Bruton.' " ( People v. McNeil, 24 N.Y.2d 550, 553, 301 N.Y.S.2d 503, 249 N.E.2d 383).

The Supreme Court did not confront the "interlocking confession" issue until some ten years after McNeil, i Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713. Unfortunately, in a 4-4 decision, the court was unable to resolve the issue.

After Parker, the New York Court of Appeals continued to follow McNeil. (See, e.g. People v. Smalls, 55 N.Y.2d 407, 415, 449 N.Y.S.2d 696, 434 N.E.2d 1063; People v. Berzups, 49 N.Y.2d 417, 425, 426 N.Y.S.2d 253, 402 N.E.2d 1155).

The Supreme Court resolved the question in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162, by holding that the admission of interlocking confessions may violate a defendant's confrontation rights because once jurors heard the co-defendant's confession, they would be unable to obey the instruction not to use the co-defendant's confession as evidence against the defendant. The Court noted (481 U.S. at 193, 107 S.Ct. at 1719) that this conclusion did "no more than reaffirm" the central proposition of Bruton. The Court further held that the defendant's own confession may be considered in determining whether the violation was harmless. (Cruz v. New York, supra).

HISTORY OF RETROACTIVITY

In order to determine the retroactivity of Cruz v. New York it is necessary to understand the historical underpinnings and changes in the law of retroactivity. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, the Supreme Court was faced with the issue of deciding whether the newly created exclusionary rule applied to cases already final before the Mapp decision ( Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). Noting that the Constitution did not mandate either prospective or retrospective application of newly-announced rules, the Court observed that changes in the law were historically given retroactive effect in cases on direct review. In contrast, the determination of whether to apply a rule retroactively to cases already final depended on the characteristics of the particular rule in question. ( Linkletter supra, at 627, 85 S.Ct. at 1736). * The Court provided three factors to be considered in making this determination on cases already final: the history of the rule in question, the purpose

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to be served by the new standard, and whether retroactive application would further or retard its operation. With regard to these factors, the Court further noted that where the purpose of a newly-announced standard "went to the fairness of the trial--the very integrity of the fact-finding process,"--the decision announcing the new standard would routinely be applied fully retroactively even to cases already final. (Linkletter at 639, 85 S.Ct. at 1743).

The Court then proceeded to apply the balancing test to the case before it. Finding that the purpose of the exclusionary rule was to deter improper police conduct and bore little relation to the integrity of the trial, the Court denied retroactive application of the Mapp decision to cases already final.

The next year, in Tehan v. Schott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, the Court again refused to apply a newly created rule to a case already final. This case involved the Fifth Amendment right prohibiting the government from commenting on defendant's failure to testify. Using the Linkletter factors, the Court denied retroactive application of the new rule to cases already final.

The same year as Tehan, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court disregarded what it had said the year before in Linkletter about new rules being traditionally applied retroactively to cases still on direct review, and used the balancing test to deny retroactive application of a new decision not only to cases already final, but also to cases not yet final. The Court also modified its previous position on rules affecting the fairness of the trial or the integrity of the fact-finding process. The Court examined the "degree" to which the newly created rules relating to voluntariness of confession affected the fact-finding process. Finding that while the new rule did affect the fairness of the trial to some degree it did not do so to such a degree as to outweigh the considerations of reliance and effect on administration of justice, the Court denied retroactive application. (Johnson at 728-29, 86 S.Ct. at 1778).

The next year, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court applied the balancing test to a rule involving the right to counsel. Applying a slightly modified version of the Linkletter factors, the Court balanced

The purpose to be served by the new standards ... the extent of the reliance ... on the old standards, and ... the effect on the administration of justice of a retroactive application. (Stovall at 297, 87 S.Ct. at 1970).

The Court concluded that even though the rules in question the Wade-Gilbert right to counsel did relate to the integrity and reliability of the identification process, the "unusually strong" reliance and burden factors mandated that the new rules be applied prospectively only. The Court refused to distinguish between cases already final and those still on direct review.

In contrast, one year later the Court exhibited little difficulty in determining that the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 supra, ought to be given retroactive application to cases already final because a violation of a defendant's right to confrontation goes "to the basis of fair hearing and trial." ( Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 [1968] ). Applying the Stovall balancing test, the Court concluded that

Due regard for countervailing considerations--reliance on the old standard ... and the impact of retroactivity upon the administration of justice ... does not counsel against retroactivity of Bruton. ... And even if the impact of retroactivity may be significant, the constitutional error presents a serious risk that the issue of guilt or innocence may not have been reliably determined. (392 U.S. at 295, 88 S.Ct. at 1922)

Similarly, the next year in another Confrontation Clause case, the Court granted retroactivity to a case already final because it found that inability to cross-examine could have a significant impact on the fact-finding process, and would thus outweigh

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the other considerations. ( Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, granting retroactivity to Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255).

A few months later, in Desist v. U.S., 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, the Court declined to apply the exclusionary rule of Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, retroactively to cases still on direct review. Using the Stovall factors, the Court found the purpose of the Katz rule to be deterrence of improper police conduct; since the misconduct had already occurred the purpose of the rule would not be enhanced by retroactive application. In addition, the Court for the first time referred to the fact that Katz, which explicitly overruled a prior Supreme Court precedent, was a "clear break" with past decisions, as an additional factor weighing...

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7 practice notes
  • People v. Kubik, No. 1-87-1525
    • United States
    • United States Appellate Court of Illinois
    • May 21, 1991
    ...conclusion, although before Butler, and retroactively applied Cruz as a reaffirmation of existing law. (See People v. Graham (1988), 531 N.Y.S.2d 172, 177, 140 Misc.2d 417.) In Graham, the New York court seemingly relied on Cruz' dictum and viewed the Court's holding "as 'no more than [a] r......
  • People v. Eastman
    • United States
    • New York Court of Appeals
    • February 21, 1995
    ...537; Graham v. Hoke, 946 F.2d 982, 991, cert. denied 502 U.S. 1039, 112 S.Ct. 890, 116 L.Ed.2d 793, mot. to vacate conviction denied 140 Misc.2d 417, 531 N.Y.S.2d 172, affd. 158 A.D.2d 714, 552 N.Y.S.2d 162, lv. denied 76 N.Y.2d 735, 558 N.Y.S.2d 897, 557 N.E.2d 1193). This retrospective ap......
  • Graham v. Hoke, No. 1670
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 21, 1991
    ...was rendered harmless given the nature of Graham's own confessions and the weight of the other evidence against him. People v. Graham, 140 Misc.2d 417, 428-29, 531 N.Y.S.2d 172, 177-79 (Sup.Ct.1988). The Appellate Division, Second Department, affirmed this decision, noting that Graham's con......
  • Reddy v. Coombe, No. 85 Civ. 0572.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 8, 1990
    ...convictions which are challenged by habeas, but were final when the new rulings were announced, is well summarized in People v. Graham, 140 Misc.2d 417, 531 N.Y.S.2d 172, 173-177 (Sup.Ct.N.Y.1988) (holding Cruz applies retroactively to a final In short, such application to final convictions......
  • Request a trial to view additional results
7 cases
  • People v. Kubik, No. 1-87-1525
    • United States
    • United States Appellate Court of Illinois
    • May 21, 1991
    ...conclusion, although before Butler, and retroactively applied Cruz as a reaffirmation of existing law. (See People v. Graham (1988), 531 N.Y.S.2d 172, 177, 140 Misc.2d 417.) In Graham, the New York court seemingly relied on Cruz' dictum and viewed the Court's holding "as 'no more than [a] r......
  • People v. Eastman
    • United States
    • New York Court of Appeals
    • February 21, 1995
    ...537; Graham v. Hoke, 946 F.2d 982, 991, cert. denied 502 U.S. 1039, 112 S.Ct. 890, 116 L.Ed.2d 793, mot. to vacate conviction denied 140 Misc.2d 417, 531 N.Y.S.2d 172, affd. 158 A.D.2d 714, 552 N.Y.S.2d 162, lv. denied 76 N.Y.2d 735, 558 N.Y.S.2d 897, 557 N.E.2d 1193). This retrospective ap......
  • Graham v. Hoke, No. 1670
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 21, 1991
    ...was rendered harmless given the nature of Graham's own confessions and the weight of the other evidence against him. People v. Graham, 140 Misc.2d 417, 428-29, 531 N.Y.S.2d 172, 177-79 (Sup.Ct.1988). The Appellate Division, Second Department, affirmed this decision, noting that Graham's con......
  • Reddy v. Coombe, No. 85 Civ. 0572.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 8, 1990
    ...convictions which are challenged by habeas, but were final when the new rulings were announced, is well summarized in People v. Graham, 140 Misc.2d 417, 531 N.Y.S.2d 172, 173-177 (Sup.Ct.N.Y.1988) (holding Cruz applies retroactively to a final In short, such application to final convictions......
  • Request a trial to view additional results

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