People v. McLeod

• Decision Date: 21 August 2014
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Neal McLEOD, Defendant–Appellant.

122 A.D.3d 16
991 N.Y.S.2d 418
2014 N.Y. Slip Op. 05926

The PEOPLE of the State of New York, Respondent,
v.
Neal McLEOD, Defendant–Appellant.

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

Aug. 21, 2014.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp of counsel), for appellant.

[991 N.Y.S.2d 419]

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen and Eleanor J. Ostrow of counsel), for respondent.

LUIS A. GONZALEZ, P.J., ROLANDO T. ACOSTA, DAVID B. SAXE, ROSALYN H. RICHTER, SALLIE MANZANET–DANIELS, JJ.

ACOSTA, J.

The primary issue on appeal is whether defendant's constitutional right of confrontation was violated when the trial court curtailed defense counsel's cross-examination of a key prosecution witness—defendant's alleged accomplice—who entered into a cooperation agreement with the People, admitted to committing and implicated defendant in prior robberies, and intended to invoke his privilege against self-incrimination in response to questions about those crimes. We find that the trial court improvidently exercised its discretion by precluding the proposed line of questioning concerning the witness's prior crimes—thereby allowing the witness to avoid asserting his Fifth Amendment privilege in the jury's presence—because the probative value of the questions, targeted at the witness's credibility, bias, and motive to fabricate testimony, was not outweighed by any purported prejudice against the People. At bottom, defendant's fundamental right of confrontation requires that he be permitted to adequately probe the bias of the People's witness, and he was unduly restricted from doing so.

Defendant was charged with several crimes relating to an incident on June 20, 2009, in which he and four codefendants allegedly robbed an off-duty police officer in Manhattan. One of the codefendants (to whom we will refer as “M.”) entered into a cooperation agreement with the prosecution and testified at trial that defendant participated in planning the robbery and was to serve as the getaway driver. Contradicting M.'s testimony, defendant testified that he was only driving his friends around town to “meet girls” and was unaware that M. or anyone else was going to commit a robbery. At some point in the evening, defendant testified, he parked and let M. and two other friends out of the car to talk to girls, when M. unexpectedly robbed the victim.

The accomplice witness, M., admitted to ripping a gold chain from the victim's neck and then running away. The victim, off-duty police officer Erickson Peralta, was unable to catch M. and instead approached another codefendant, D. (ultimately adjudicated a youthful offender), and held him at gunpoint. Defendant testified that he had remained in the car with another codefendant and was sending text messages to his girlfriend. A commotion caught his attention. When he looked up, he saw from his car that his friend D. was being held at gunpoint, so he removed a crowbar from the trunk of his car and used it in an attempt to disarm Peralta.

As a key prosecution witness, M.'s trial testimony was the only evidence that suggested defendant's intent to participate in the Manhattan robbery. Defense counsel sought to question M. on prior uncharged Bronx robberies to which he admitted during his cooperation proffer, but M.'s attorney indicated his client's intention to invoke his Fifth Amendment privilege against self-incrimination.¹ Defense counsel also intended to question M. about the

[991 N.Y.S.2d 420]

circumstances underlying his guilty plea and youthful offender adjudication for another robbery in the Bronx, the disposition of which was pending when he committed the instant robbery.

The trial court curtailed defense counsel's proposed line of questioning, reasoning that the issues were collateral and that the jury would be misled—and the People prejudiced—if M. asserted the Fifth Amendment in the jury's presence because the jury would not learn that M. had also implicated defendant in some of the uncharged crimes.

The jury found defendant guilty of robbery in the first degree, two counts of robbery in the second degree, attempted assault in the first degree, and assault in the second degree. Defendant was sentenced to an aggregate term of five years imprisonment and now appeals.

A defendant's confrontation...