People v. Smith

• Decision Date: 28 June 2016
• Citation: 2016 N.Y. Slip Op. 05061,27 N.Y.3d 652,36 N.Y.S.3d 861,57 N.E.3d 53
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles SMITH, Appellant. The People of the State of New York, Respondent, v. Tyrell Ingram, Appellant. The People of the State of New York, Respondent, v. Isma McGhee, also known as Izzy, Appellant.
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 652

57 N.E.3d 53

36 N.Y.S.3d 861

2016 N.Y. Slip Op. 05061

The PEOPLE of the State of New York, Respondent

v.Charles SMITH, Appellant.

The People of the State of New York, Respondent

v.Tyrell Ingram, Appellant.

The People of the State of New York, Respondent

v.Isma McGhee, also known as Izzy, Appellant.

Court of Appeals of New York.

June 28, 2016.

Robert S. Dean, Center for Appellate Litigation, New York City (Claudia B. Flores of counsel), for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.

Stanley Neustadter, Cardozo Appeals Clinic, New York City (Elsa Mitsoglou and Jeremey Gutman of counsel), for appellant in the second above-entitled action.

James A. McCarty, Special Acting District Attorney, White Plains (Raffaelina Gianfrancesco, Laurie G. Sapakoff and Steven A. Bender of counsel), for respondent in the second above-entitled action.

Robert S. Dean, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), and Sidley Austin LLP, New York City (Angela Zhu of counsel), for appellant in the third above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Sylvia Wertheimer, Patrick J. Hynes and Sheila O'Shea of counsel), for respondent in the third above-entitled action.

David C. Schopp, Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy and Sherry A. Chase of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first above-entitled action.

Seymour W. James, Jr., The Legal Aid Society, New York City (Cynthia H. Conti–Cook of counsel), amicus curiae in the first, second and third above-entitled actions.

OPINION OF THE COURT

ABDUS–SALAAM, J.

The primary issue in these appeals is whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit. These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination. We have indicated as much in prior cases (see People v. Garrett, 23 N.Y.3d 878, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ), as have the Appellate Divisions considering this issue (see e.g. People v. Daley, 9 A.D.3d 601, 780 N.Y.S.2d 423 [3d Dept.2004] ; People v. Andrew, 54 A.D.3d 618, 863 N.Y.S.2d 676 [1st Dept.2008] ; People v. Jones, 193 A.D.2d 696, 598 N.Y.S.2d 40 [2d Dept.1993] ). Accordingly, we apply the well-established rules governing the use of this type of impeachment material to the specific facts of each of these three cases.

I.

The United States Supreme Court has stated that “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested” (Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 [1974] ) and that the right of cross-examination is “implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process” (Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] [internal quotation marks and citation omitted] ). While “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish” (Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 [1985] ), this Court has observed in Gissendanner , 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 and People v. McGee , 68 N.Y.2d 328, 508 N.Y.S.2d 927, 501 N.E.2d 576 (1986) that restrictions on the right to cross-examine key prosecution witnesses may deprive defendants of the means to discredit the witnesses and cast doubt on the prosecution's case. It is elementary that

“impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility” (People v. Walker, 83 N.Y.2d 455, 461, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] [citations omitted] ).

Given these central principles, prosecution witnesses—and indeed, even a testifying defendant—may be cross-examined on “prior specific criminal, vicious or immoral conduct,” provided that “the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v. Sandoval, 34 N.Y.2d 371, 376, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). Of course, where a witness other than the defendant testifies, the court, in considering the parameters of permissible cross-examination, is not focused on protecting the rights of the accused, and on the concern that permitting evidence of bad conduct will serve merely to demonstrate a propensity to commit the crime charged (see People v. Ocasio, 47 N.Y.2d 55, 58, 416 N.Y.S.2d 581, 389 N.E.2d 1101 [1979] ). After all, for a nondefendant witness, “neither conviction nor vindication, imprisonment nor freedom, hangs in the balance” (id. at 59, 416 n.y.s.2d 581, 389 N.E.2D 1101 ). however, in all Cases the trial court retains broad discretion to weigh the probative value of evidence of prior bad acts against the possibility that it “would confuse the main issue and mislead the jury ... or create substantial danger of undue prejudice to one of the parties” (People v. Corby, 6 N.Y.3d 231, 234–235, 811 N.Y.S.2d 613, 844 N.E.2d 1135 [2005] [internal quotation marks and citation omitted]; see also People v. Harrell, 209 A.D.2d 160, 160, 618 N.Y.S.2d 631 [1st Dept.1994], aff'd 86 N.Y.2d 806, 632 N.Y.S.2d 493, 656 N.E.2d 591 [1995] ; see generally People v. Dawson, 50 N.Y.2d 311, 322, 428 N.Y.S.2d 914, 406 N.E.2d 771 [1980] ; People v. Gissendanner, 48 N.Y.2d at 548, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; Sandoval, 34 N.Y.2d at 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 [“(t)he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge”] ).

In Garrett, we concluded that “civil allegations” of misconduct in a federal lawsuit filed against a law enforcement agent “were favorable to defendant as impeachment evidence” (Garrett, 23 N.Y.3d at 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 ), thereby necessarily determining that such allegations can bear on a law enforcement officer's credibility as a witness. The defendant in Garrett argued in his criminal case that one detective in particular “coerced him into making a false confession” and “[t]he federal complaint made similar allegations against [the same detective]: although it did not explicitly allege that the confession [the same detective] procured was false, the complaint described coercive tactics [the same detective] allegedly used to extract a confession against the plaintiff's will” (id. ). This Court noted that the evidence “favored defendant's false confession theory” in that case (id. ). Nonetheless, in Garrett, we noted that the trial judge could have exercised discretion and precluded inquiry into this “favorable” impeachment evidence (id. at 892, 994 N.Y.S.2d 22, 18 N.E.3d 722 ).

Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proved at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proved at a trial (see People v. Sorge, 301 N.Y. 198, 201, 93 N.E.2d 637 [1950] ). Likewise, a police witness's prior bad act that similarly has not been proved in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness's credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Indeed, we have approved cross-examination on a defendant's use of aliases and other suspect, but not criminal, conduct because

“even where the proof falls outside the conventional category of immoral, vicious or criminal acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness ... to place the advancement of his individual self-interest ahead of principle or of the interests of society” (Walker, 83 N.Y.2d at 461, 611 N.Y.S.2d 118, 633 N.E.2d 472 [internal quotation marks, brackets and citations omitted] ).

As we indicated in Garrett, and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies—as does the same broad latitude to preclude or limit cross-examination.

Where a lawsuit has not resulted in an adverse finding against a police officer, as is the case with these three appeals, defendants should not be permitted to ask a witness if he or she has been sued,¹ if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court's discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.

From the above, the logical framework for analysis of the issue is clear. First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the...