People v. Jackson, 2006 NY Slip Op 51299(U) (N.Y. Sup. Ct. 6/30/2006)

• Decision Date: 30 June 2006
• Docket Number: 1673/95.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. KEVIN JACKSON, Defendant.
• Court: New York Supreme Court

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2006 NY Slip Op 51299(U)

THE PEOPLE OF THE STATE OF NEW YORK v. KEVIN JACKSON, Defendant.

1673/95.

Supreme Court of the State of New York.

Queens County.

Decided June 30, 2006.

The defendant was represented by Ruth M. Liebesman, Esq., New York, New York.

The People were represented by the Office of the District Attorney, Queens County, by Roni C. Piplani, Assistant District Attorney, Kew Gardens, New York.

EVELYN L. BRAUN, J.

On February 25, 1997, following a jury trial on the above-captioned consolidated indictments presided over by Justice James Robinson¹, defendant was convicted of the crimes of Murder in the Second Degree (2 counts) and Criminal Possession of a Weapon in the Second Degree (2 counts). Defendant was sentenced to an indeterminate term of imprisonment of twenty-five years to life for the murder of Richard Harrison and twenty years to life for the murder of Earl Hicks. The sentences were to be served consecutively.

On October 9, 2001, the Appellate Division, Second Department, affirmed the defendant's conviction (People v. Jackson, 287 AD2d 520 [2001]). On January 22, 2002, the Court of Appeals denied defendant leave to appeal (People v. Jackson, 97 NY2d 705 [2002]). Thereafter, on June 15, 2003, his petition for a writ of error coram nobis was denied by the Appellate Division, Second Department (People v. Jackson, 309 AD2d 766 [2003]). Leave to appeal was denied by the Court of Appeals on December 29, 2003 (People v. Jackson, 1 NY3d 574 [2003]).

The charges in the indictment relevant to the instant motion arose out of the shooting of Richard Harrison on November 1, 1989. It was alleged that on that date Mr. Harrison was walking toward his home in the vicinity of 116-44 Van Wyck Expressway Service Road, in Queens County, when the defendant, driving a gray Volkswagen Jetta with Illinois license plates, fired several shots at him, causing his death.

Defendant now moves to vacate the judgment of conviction for the murder of Richard Harrison pursuant to CPL 440.10 on several grounds, including that the conviction was obtained in violation of his right to confrontation under the guidelines set forth in Crawford v. Washington (541 US 36 [2004]). He also moves for certain other related relief.

Post-Crawford, it is now settled that out-of-court statements of a person who does not appear as a witness at trial that are of a "testimonial" nature may not be received to establish the truth of what was stated "unless (i) the declarant is unavailable to testify at the trial, and (ii) the accused was afforded a prior opportunity to cross-examine the declarant on the statement" (Davis v. Washington, 547 US [2006]; see also e.g. Mungo v. Duncan, 393 F3d 327, 332 [2d Cir 2004], quoting Crawford v. Washington, 541 US at 54; People v. Goldstein, 6 NY3d 119 [2005]; People v. Paul, 25 AD3d 165 [2005], lv denied 6 NY3d 752 [2005]).

The defendant contends that two statements attributable to Christopher Lloyd which were admitted into evidence over the objection of the defendant would have been inadmissible under Crawford. The Trial Judge made a determination that at the time of trial Mr. Lloyd was unavailable. Pursuant to the firmly rooted "excited utterance" exception to the hearsay rule, (see People v. Cotto, 92 NY2d 68, 78-79 [1998]), the Court allowed the People (1) to present the testimony of the deceased's brother, David Harrison, who stated that, immediately after the shooting, he heard Mr. Lloyd shout " I don't believe it. I can't believe it. He just shot Rich. . . . Kevin Jackson just shot Rich," and (2) to introduce into evidence the tape of a 911 call made immediately after the shooting on which Mr. Lloyd is heard, at two separate points, stating in pertinent part,

". . . Kevin Jackson shot Rich. . . . I seen Kevin Jackson's car pull off."

Inasmuch as Crawford was decided after defendant's conviction became final,² the first issue presented herein is whether Crawford applies retroactively on a motion for collateral review.

Generally, new rules of constitutional procedure³ will not have retroactive application when raised collaterally. In Teague v. Lane, (489 US 288 [1989]), the United States Supreme Court established the test for whether a new procedural rule should be retroactively applied on collateral review. In pertinent part, Teague held that a new procedural rule must be applied retroactively if it constitutes a "watershed rule" of criminal procedure which is "implicit in the concept of ordered liberty" (id. at 311-312).

While not delineating what constitutional rules are "watershed," the Teague Court noted that if the rule "alter[s] our understanding of [a] bedrock procedural [element] and "vitiate[s] the fairness" of a conviction, then the rule is considered "watershed" (id. at 311). That a new rule is aimed at improving the accuracy of the trial does not, alone, determine whether or not it is "watershed." The new rule must both "implicate the fundamental fairness of the trial," and be one "without which the likelihood of an accurate conviction is seriously diminished." As the Supreme Court later explained, the rule must also have "primacy and centrality" (Saffle v. Parks, 494 US 484, 495 [1990]).

In Beard v. Banks, 542 US 406 [2004]), decided post-Crawford, the United States Supreme Court explained that the Teague exception "is clearly meant to apply only to a small core of rules . . . [citations omitted]" (id. at 2513-2514). The Court plainly stated that "it should come as no surprise that we have yet to find a new rule that falls under the Teague exception" concerning procedures "implicit in the concept of ordered liberty." (id. at 2514).

In providing guidance as to what rules might be so retroactively applied, the United States Supreme Court has repeatedly, and only, referred to the right-to-counsel rule of Gideon v. Wainwright, (372 US 335 [1963]), which "altered [the Court's] understanding of the bedrock procedural elements essential to the fairness of a proceeding" (Sawyer v. Smith, 497 US 227 [1990]). The Court has not hesitated to hold less sweeping and fundamental rules outside the exception (see e.g. O'Dell v. Netherland, 521 US 151 [1997]).

Although state courts have reached different conclusions on the issue of whether the Crawford rule constitutes a "watershed" rule which is to be applied retroactively, (see e.g. People v. Watson, 5 Misc 3d 1013(A) [2004]; People v. Dobbin, 6 Misc 3d 892 [2004]; People v. Encarnacion, 6 Misc 3d 1027(A0 [2005); People v. Vasquez, 7 Misc 3d 762 [2005]; People v. Ayrhart, 8 Misc 3d 1014(A) [2005]), the United States Court of Appeals for the Second Circuit, in Mungo v. Duncan, 393 F3d 327 [2d Cir 2004], supra, has held that Crawford did not enunciate a "watershed" rule of criminal procedure subject to retroactive application. Specifically, the Mungo court held that the Crawford rule should not be retroactively applied in the collateral review of a state court's admission of an unavailable declarant's statements under the excited utterance exception to the hearsay rule.

In Mungo, the Court reasoned that the Crawford rule does not necessarily, as required under Teague, "improve the accuracy of criminal proceedings" (citing Teague v. Lane, 489 US at 311-314). The Court stated, in some instances the changes effected by Crawford with respect to the protections provided by the Confrontation Clause will likely improve the accuracy of the fact finding process. An example of this would be those situations in which courts previously "were required to make amorphous' determinations whether hearsay statements bore particularized guarantees of trustworthiness,' and inevitably received unreliable evidence on that basis on some occasions" [Mungo v. Duncan, 393 F3d 327, 335 [2d Cir 2004], supra, citing Crawford v. Washington, 541 US 36 at 60]). The Court further stated that in other instances, the Crawford rule will "diminish, rather than increase, the accuracy of the process." An example of this would be those situations where otherwise reliable uncross-examined hearsay "admissible under the old rules precisely because it was reliable" will be excluded (Mungo v. Duncan, 393 F3d 327, 336 [2d Cir 2004], supra).

As of this date, no State appellate court has specifically addressed the issue of whether Crawford must be applied retroactively on collateral review. This Court has considered the pre-Crawford decision in People v. Eastman (85 NY2d 265 [1995]), which has been interpreted as indicating that the New York State Court of Appeals would require any new constitutional rule implicating the "bedrock procedural element the Sixth Amendment right of confrontation" (id. at 276) be retroactively applied on collateral review (see People v. Watson, 5 Misc 3d 1013(A) [2004] supra; People v. Dobbin, 6 Misc 3d 892 [2004], supra; People v. Encarnacion, 6 Misc 3d 1027(A) [2005], supra).

Eastman, specifically held that the United States Supreme Court rule enunciated in Cruz v. New York, (481 U.S. 186 [1987]), bars the admission at trial of a non-testifying co-defendant's confession incriminating the defendant, even where the defendant's own confession "interlocks" with that of his co-defendant. Eastman explained "[b]ecause a codefendant's credibility is inevitably suspect based on the recognized motivation to shift blame to an accomplice, the unreliability of a codefendant's confession is intolerably compounded when, as here, the alleged accomplice does not testify and cannot be tested by cross-examination (Bruton v. United States, 391 US [123], at 136, supra). This is precisely the type of threat to the accuracy and fairness of a fair trial that the Confrontation Clause was designed to prevent (see id.)" (People v. Eastman, 85 NY 265, 274 [1995], supra).

Applying the Teague test, Eastman observed that "Cruz unquestionably departs from established precedent, and implicates a bedrock procedural element the Sixth Amendment right of confrontation [citations...