People v. Morales

• Decision Date: 17 June 1975
• Citation: 372 N.Y.S.2d 25,333 N.E.2d 339,37 N.Y.2d 262
• Parties: , 333 N.E.2d 339 The PEOPLE of the State of New York, Appellant, v. Jose MORALES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 25

372 N.Y.S.2d 25

37 N.Y.2d 262, 333 N.E.2d 339

The PEOPLE of the State of New York, Appellant, v. Jose MORALES, Respondent.

Court of Appeals of New York.

June 17, 1975.

Richard H. Kuh, Dist. Atty. (James Bryan and Lewis R. Friedman, New York City, of counsel), for appellant.

Arnold E. Wallach and Peter J. Peluso, New York City, for respondent.

FUCHSBERG, Judge.

Where, as a sanction for his failure to comply with what was then our notice-of-alibi statute (CPL 250.20, formerly Code Crim.Pro., § 295--l), the defendant was prevented from calling an alibi witness, is a subsequent holding that the statute is unconstitutional (People v. Bush, 33 N.Y.2d 921, 352 N.Y.S.2d 936, 308 N.E.2d 451, cert. den., 419 U.S. 848, 95 S.Ct. 85, 42 L.Ed.2d 77), retroactive so as to require, on direct appeal, that his conviction be reversed?

The Appellate Division having held that it does, that question is squarely presented for our determination here.

In addition, the Appellate Division found, as another ground for reversal, that the defendant's due process rights had been violated by the admission of a police officer's testimony of a station house viewing of the defendant about six hours after his arrest.

For the reasons which follow, we find that unconstitutionality of the notice-of-alibi statute should be retroactively applied here. Therefore, on the ground that the alibi witness testimony should not have been excluded, but on that ground alone, the judgment of conviction was properly reversed.

In the early afternoon of September 21, 1970, Detective Grant Webster, an undercover police officer, allegedly purchased 15 glassine envelopes containing heroin from the defendant Morales on a public street at East 123rd and Lexington Avenue in Manhattan. Webster did not make an immediate arrest. Rather, by running his hand through his hair, a prearranged signal, he informed his backup team consisting of three other officers who, from a parked car about a half block from the corner, had been observing him conversing with Morales, that he had completed a drug purchase.

The backup teams then drove, according to plan, to a nearby location where they rendezvoused with Detective Webster. There he vouchered his purchase in a police property envelope, which he sealed, signed and left with his fellow policemen. He also wrote a detailed description of Morales on the envelope, along with the date of the sale and the name 'J.D. (for John Doe) Goatee'. The fictitious name was derived from the way in which Morales groomed his beard, his true name then being unknown to the officer. Webster also took note of the drug seller's color, size and physicial appearance and that he was smartly dressed, wearing a maroon leather jacket and a blue knit shirt with a white collar. The accuracy of these descriptive details was later to be admitted at trial.

After making his notes, Webster entered a truck, drove back to the street where he had made the purchase and cruised the neighborhood until he saw Morales again. Thereupon, he radioed his backup team, directing them to arrest the man he had described and whom they had earlier seen. That evening, at the conclusion of his day's work, which was about six hours after the arrest, Detective Webster, who, in accordance with the practice of undercover policeman to avoid exposing themselves unnecessarily, had not been present when the backup team made the actual arrest, went to the police precinct where Morales was being held and viewed the prisoner by means of a 'two-way mirror' through which Webster could see without being seen.

Morales' trial, following indictment for selling and possessing the narcotics, began on January 19, 1972. On the witness stand, Webster made an in-court identification of Morales, based upon their original meeting at the time of sale. He was also permitted to testify, over objection, to his station house observation of the defendant. Two members of the backup team also identified Morales as the person they had seen communicating with Detective Webster at the time of the sale.

Morales' defense was an alibi. Prior to trial, the prosecutor demanded, and the defense supplied, a list of his alibi witnesses. It contained four names. At trial, however, he only put one of the four on the stand. The name of a second alibi witness whom he attempted to call was not on the list. The People objected to her being called, and the objection was sustained on the ground that her name and other required information had not been furnished in advance pursuant to CPL 250.20, which provided:

'Notice of Alibi. 1. At any time before trial, the people may serve * * * a demand that if a defendant intends to offer a trial defense that at the time of the commission of the crime charged, he was at some place or places other than the scene of the crime, and to call witnesses in support of such defense, he must * * * serve upon the people * * * a 'notice of alibi,' reciting (a) the place or places where the defendant claims to have been at the time in question, and (b) the names, the residential addresses, the places of employment and the addresses thereof of every such alibi witness upon whom he intends to rely.

'2. If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi * * * the court may exclude any testimony of such witness relating to the alibi defense. The court 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.'

People v. Bush (33 N.Y.2d 921, 923, 352 N.Y.S.2d 836, 308 N.E.2d 451, cert. den. 419 U.S. 848, 95 S.Ct. 85, 42 L.Ed. 77, Supra), in which we specifically found there was 'no significant difference' between the predecessor of CPL 250.20 and the notice-of-alibi statute which had been held unconstitutional by the United States Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 on June 11, 1973, ^* was decided on December 28, 1973.

In Wardius, as in the present case, an alibi witness had been precluded from testifying because of the defendant's failure to comply with an Oregon requirement for disclosure of alibi witnesses. The Wardius court found the defendant there did not have to comply because no reciprocal obligation had been placed upon the prosecution to disclose whom it would call to rebut the testimony of defendant's alibi witnesses, saying (p. 476, 93 S.Ct. p. 2212): '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.'

The court there then went on to applaud and modern trend of broad discovery in criminal causes, cautioning, however, that (p. 475, 93 S.Ct. p. 2212) 'discovery must be a two-way street. The State may not insist that trials be run as a 'search for the truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses.'

In contrast, since the Bush defendant had complied with the statute and so had not been prevented from calling his alibi witnesses, our court there found that the lack of reciprocity of disclosure had merely 'hindered' Bush's preparation 'to impeach, discredit or rebut' the prosecutor's rebuttal proof. (Bush, supra, 33 N.Y.2d p. 923, 352 N.Y.S.2d 936, 308 N.E.2d 451.) We concluded that the effect of the rule in that case had not gone to the (p. 923, 352 N.Y.S.2d 936, 308 N.E.2d 451) 'integrity of the fact-finding process', but merely impinged on 'procedural fairness' and, therefore, the Wardius holding should not be applied retroactively to benefit Bush, whose trial had started prior to the date of the Wardius decision. However, we did not reach the question of whether retroactivity would apply on direct appeal to a case where a defendant, as in Wardius, had not merely lacked the right to obtain reciprocal information from the prosecution, but had been prevented from introducing his own alibi witnesses on direct. We specifically left 'that determination to another day'. (Bush, supra, p. 924, 352 N.Y.S.2d 936, 937, 308 N.E.2d 451, 452.)

As already indicated, the Morales trial having started in January, 1972, its trial date antedates the Wardius decision. Further, like Wardius, it involved the actual exclusion of a witness and not just a lack of reciprocity. Finally, it is here on direct appeal. Thus, Morales having met all its conditions, the 'another day' bespoken by Bush is now here.

The concept of 'retroactivity' is not new. It has an ancient tradition, und which Judges were not deemed to 'make law' as such, but to 'pronounce the law' which, even if it had previously been enunciated erroneously, was conceived of as having always been there, waiting just to be correctly stated. (Mishkin, the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 58.) Consequently, since the 'correct' law was looked upon as having always been the same, a case decided on direct appeal always received the benefit, or detriment, of any decisional law 'pronounced' before its judgment became final. (See United States v. Schooner Peggy, 1 Cranch (5 U.S.) 103, 110, 2 L.Ed. 49.) However, once a judgment had become final, it was not affected by law freshly 'pronounced' thereafter. (1 Blackstone's Commentaries 69 (15th ed.); 1 Black, Judgments (2d ed.) §§ 245, 246.)

Building on that historic common-law doctrine, during the 1960's the United States Supreme Court, especially in cases involving deprivations of constitutional due process rights under the Fourteenth Amendment in criminal cases, began to employ retroactivity in expanded and varied forms. In some cases, it enlarged upon the traditional application to permit collateral attack on judgments of conviction which had long been final. (E.g., Robinson v. Neil, 409 U.S. 505, 93...