The People, Respondent,v.Isma McGhee, Also Known as Izzy, Appellant.BriefN.Y.June 1, 2016APL-2015-00243 To be argued by SYLVIA WERTHEIMER (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ISMA MCGHEE, a/k/a “IZZY,” Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov PATRICK J. HYNES SYLVIA WERTHEIMER SHEILA O’SHEA ASSISTANT DISTRICT ATTORNEYS Of Counsel APRIL 8, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 THE WADE HEARING ..................................................................................................... 6 The People’s Case ....................................................................................................... 6 Defendant’s Case ........................................................................................................ 9 The Suppression Court’s Decision ........................................................................... 9 THE EVIDENCE AT TRIAL .......................................................................................... 10 The People’s Case ..................................................................................................... 10 Defendant’s Case ...................................................................................................... 21 POINT I THE TRIAL COURT PROPERLY RULED THAT DEFENDANT COULD NOT CROSS-EXAMINE DETECTIVE RIVERA ABOUT “FALSE ARREST” ALLEGATIONS IN UNRELATED FEDERAL LAWSUITS .................................................................................................... 22 A. The Relevant Record. .................................................................. 24 B. The Applicable Law. .................................................................... 26 C. This Court is not barred from fully reviewing the challenged ruling. ................................................................................................... 31 D. Defendant failed to establish a good faith basis to believe that Detective Rivera had engaged in prior bad acts relevant to his credibility. ............................................................................................ 36 E. The trial court reasonably exercised its discretion to preclude cross-examination that risked confusion of the issues, and the ruling did not violate defendant’s constitutional right to confrontation. ..................................................................................... 42 F. Any error would have been harmless. ....................................... 48 POINT II THE RECORD AMPLY SUPPORTS THE LOWER COURTS’ FINDINGS THAT THE PRETRIAL PHOTO ARRAY FROM WHICH UC 93 IDENTIFIED DEFENDANT WAS NOT UNDULY SUGGESTIVE ....................... 55 POINT III DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY DRUG OFFENDER PREVIOUSLY CONVICTED OF A VIOLENT FELONY ....................................................................................................... 65 CONCLUSION ................................................................................................................... 78 ADDENDUM ........................................................................................................ RA000001 -ii- TABLE OF AUTHORITIES FEDERAL CASES Davis v. Alaska, 415 U.S. 308 (1974) ................................................................................. 27 Delaware v. Van Arsdall, 475 U.S. 673 (1986) ...................................................... 27, 42, 52 Maryland v. Pringle, 540 U.S. 366 (2003) .......................................................................... 39 Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ...................................................................... 28 STATE CASES Badr v. Hogan, 75 N.Y.2d 629 (1990) ............................................................................... 39 La Beau v. People, 34 N.Y. 223 (1866) .............................................................................. 31 Matter of Shannon, 25 N.Y.3d 345 (2015) ........................................................................ 67 People v. Alamo, 23 N.Y.2d 630 (1969) ............................................................................ 38 People v. Allen, 50 N.Y.2d 898 (1980) .................................................................. 47-48, 53 People v. Andrew, 54 A.D.3d 618 (1st Dept. 2008) ........................................................ 28 People v. Barnes, 26 N.Y.3d 986 (2015) ............................................................................ 67 People v. Bowens, 120 A.D.3d 1148 (1st Dept. 2014), lv. denied, 25 N.Y.3d 949 (2015) ........................................................................ 5, 71, 75 People v. Boyer, 6 N.Y.3d 427 (2006) ............................................................................... 61 People v. Brown, 21 N.Y.3d 739 (2013) ....................................................................... 73-74 People v. Carter, 283 A.D.2d 514 (2d Dept. 2001) .......................................................... 59 People v. Chipp, 75 N.Y.2d 327 (1990) ............................................................................. 58 People v. Christopher Nicholson, __ N.Y.3d __, 2016 WL 633925 (Feb. 18, 2016) ............................................................................................................... 32-33, 43 People v. Clyde, 18 N.Y.3d 145 (2011) ......................................................................... 48-49 People v. Coleman, 56 N.Y.2d 269 (1982) ........................................................................ 29 -iii- People v. Colon, 43 A.D.3d 720 (1st Dept. 2007) ........................................................... 28 People v. Concepcion, 17 N.Y.3d 192 (2011) ............................................................... 5, 31 People v. Corby, 6 N.Y.3d 231 (2005) ............................................................. 26-27, 31, 42 People v. Daley, 9 A.D.3d 601 (3d Dept. 2004) ............................................................... 49 People v. Douglas, 4 N.Y.3d 777 (2005) ........................................................................... 48 People v. Duffy, 36 N.Y.2d 258 (1975) ................................................................. 28, 30-31 People v. Feliciano, 108 A.D.3d 880 (3d Dept. 2013) ..................................................... 68 People v. Garrett, 23 N.Y.3d 878 (2014) ....................................... 34-35, 40, 42, 44-45, 54 People v. Gissendanner, 48 N.Y.2d 543 (1979) ........................................................... 29-30 People v. Hayes, 17 N.Y.3d 46 (2011) .......................................................................... 26-27 People v. Holley, 26 N.Y.3d 514 (2015) ............................................................................ 57 People v. Hubbard, 132 A.D.3d 1013 (2d Dept. 2015) ................................................... 45 People v. Jackson, 98 N.Y.2d 555 (2002) .......................................................................... 58 People v. Jones, 193 A.D.2d 696 (2d Dept. 1993) ........................................................... 48 People v. Jones, 2016 N.Y. LEXIS 201, 2016 NY Slip Op. 01208 (Feb. 18, 2016) ...................................................................................................................... 66-67 People v. Jones, 22 N.Y.3d 53 (2013) ................................................................................ 68 People v. LaFontaine, 92 N.Y.2d 470 (1998) ................................................................ 5, 31 People v. Lynes, 106 A.D.3d 433 (1st Dept.), lv. denied, 21 N.Y.3d 1075 (2013) ........................................................................... 77-78 People v. Macon, 256 A.D.2d 134 (1st Dept. 1998) ........................................................ 28 People v. Marshall, 26 N.Y.3d 495 (2015) ......................................................................... 58 People v. McBride, 14 N.Y.3d 440 (2010).................................................................... 57-58 People v. McCray, 23 N.Y.3d 193 (2014) ..................................................................... 28-29 -iv- People v. McGee, 68 N.Y.2d 328 (1986) ..................................................................... 27, 30 People v. McGhee, 125 A.D.3d 537 (1st Dept. 2015) ......................................................................................... 4-5, 22-26, 33-36, 48, 53, 56, 59 People v. Middlebrooks, 25 N.Y.3d 516 (2015) .......................................................... 66-67 People v. Miller, 91 N.Y.2d 372 (1998) ............................................................................. 36 People v. Morales, 37 N.Y.2d 262 (1975) ..................................................................... 58-59 People v. Morrison, 194 N.Y. 175 (1909).......................................................................... 36 People v. Morse, 62 N.Y.2d 205 (1984) ....................................................................... 75-77 People v. Negron, 26 N.Y.3d 262 (2015) .................................................................... 27, 31 People v. Ocasio, 241 A.D.2d 933 (4th Dept. 1997) ....................................................... 59 People v. Perry, 133 A.D.3d 410 (1st Dept. 2015), lv. denied, 2016 NY LEXIS 614 (Feb. 3, 2016) .......................................................... 63 People v. Primo, 96 N.Y.2d 351 (2001) ...................................................... 26-27, 34-35, 42 People v. Reginald Powell, __ N.Y.3d __, 2016 WL 1306692 (April 5, 2016) ......................................................................................................... 27, 31, 34-35, 42 People v. Rosario, 78 N.Y.2d 583 (1991) .......................................................................... 39 People v. Sanchez, 21 N.Y.3d 216 (2013) ......................................................................... 57 People v. Sandoval, 34 N.Y.2d 371 (1974) .................................................................. 30, 47 People v. Santos, 96 A.D.3d 624 (1st Dept. 2012) ........................................................... 71 People v. Schwartzman, 24 N.Y.2d 241 (1969) .................................................... 28, 39, 45 People v. Siegel, 87 N.Y.2d 536 (1995) .............................................................................. 29 People v. Sorge, 301 N.Y. 198 (1950) ................................................................................ 28 People v. Spencer, 20 N.Y.3d 954 (2012) .......................................................................... 28 People v. Tatum, 129 Misc. 2d 196 (Sup. Ct. Queens Co. 1985) ................................... 63 -v- People v. Thomas, 122 A.D.3d 489 (1st Dept. 2014), lv. denied, 24 N.Y.3d 1123 (2015) ...................................................................... 5, 71, 75 People v. Thomas, 46 N.Y.2d 100 (1978) ............................................................. 28, 34, 38 People v. Vargas, 88 N.Y.2d 363 (1996) ............................................................................ 29 People v. Walker, 222 A.D.2d 854 (3d Dept. 1995)......................................................... 59 People v. Walker, 81 N.Y.2d 661 (1993) ............................................................... 69-70, 72 People v. Walker, 83 N.Y.2d 455 (1994) .............................................29, 39, 43, 46, 69-73 People v. Wharton, 74 N.Y.2d 921 (1989) ............................................................ 58, 61-62 People v. Williams, 81 N.Y.2d 303 (1993)......................................................................... 26 People v. Yusuf, 19 N.Y.3d 314 (2012) ............................................................................. 66 STATE STATUTES CPL 470.15(1) ....................................................................................................................... 31 CPL 470.35(1) ....................................................................................................................... 31 CPL 710.30 ............................................................................................................................ 61 Penal Law § 1.05(2) .............................................................................................................. 75 Penal Law § 70.02 ................................................................................................................. 75 Penal Law § 70.02(1) ................................................................................................ 66, 75, 77 Penal Law § 70.02(1)(b) ..................................................................................... 67, 73-74, 77 Penal Law § 70.02(1)(c) ..................................................................................... 67, 69, 73, 76 Penal Law § 70.04(1)(a) ........................................................................................................ 72 Penal Law § 70.04(1)(b) ....................................................................................................... 72 Penal Law § 70.06(1)(b)(i) .................................................................................................... 70 Penal Law § 70.08(1)(a) ........................................................................................................ 72 Penal Law § 70.08(1)(b) ....................................................................................................... 73 -vi- Penal Law § 70.70 ................................................................................................................. 66 Penal Law § 70.70(3) ............................................................................................................ 66 Penal Law § 70.70(4) ................................................................................................ 65-66, 73 Penal Law § 70.70(4)(a) ...................................................................................... 66, 68-70, 72 Penal Law § 220.39(1) ............................................................................................................ 1 Penal Law § 265.02(4) .............................................................. 4, 6, 65, 67-69, 71-74, 75-76 Penal Law § 265.03(3) .............................................................................. 6, 68, 69, 73-75, 77 OTHER AUTHORITIES McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 98(a) ............................................. 67 2006 McKinney’s Session Laws of N.Y., Chapter 742 .................................................... 68 2007 McKinney’s Session Laws of N.Y., Chapter 7 ........................................................ 73 Prince, Richardson on Evidence (11th ed.) ....................................................................... 28 -vii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ISMA MCGHEE, A/K/A "IZZY," Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Sheila Abdus-Salaam, Associate Judge of this Court, defendant Isma McGhee appeals from an order of the Appellate Division, First Department, entered on February 24, 2015. That order unanimously affirmed a judgment of the Supreme Court, New York County (Patricia Nunez, J., at pretrial hearings and trial), rendered on January 3, 2013, convicting defendant, after a jury trial, of ten counts of Criminal Sale of a Substance in the Third Degree (Penal Law § 220.39[1]), and sentencing him, as a second felony drug offender with a prior violent felony offense, to concurrent determinate 12-year prison terms, to be followed by three years of post-release supervision. Defendant is currently incarcerated. As part of a long-term investigation into drug trafficking and other criminal activity at the Lincoln Houses project in Manhattan, multiple undercover detectives purchased crack cocaine from defendant over an extended period of time. At the end of the investigation, by New York County Indictment No. 2417/2012, filed on May 11, 2012, a grand jury charged defendant with ten counts of Criminal Sale of a Controlled Substance in the Third Degree (A. 9-15).1 The indictment also charged defendant’s brother, Bobby Lane, with one of the ten sales, which he transacted together with defendant, and with two additional sales that Lane conducted by himself.2 In response to defendant’s omnibus motion, the court (Edward McLaughlin, J.), ordered a Wade hearing with respect to one undercover officer’s pretrial identification of defendant from a photo array conducted two months after the relevant sale (A. 56).3 The hearing was held on November 20, 2012, before Justice Patricia Nunez, who denied defendant’s motion to suppress the identification, concluding that the photo array the trained undercover purchaser viewed had been “fairly constituted” and was not unduly suggestive (A. 101). 1 Defendant was not charged with three additional sales he had made to an undercover detective who was unable to continue her participation in the case because of health issues. 2 On October 19, 2012, Lane pled guilty to one count and had his sentence deferred for 24 months to allow him to participate in a judicial diversion treatment program. Ultimately, Lane failed the diversion program, was arrested on a new felony, and, on March 6, 2014, was sentenced to two years in prison. 3 Parenthetical references preceded by “A” are to the Appendix. References preceded by “TT.” are to trial minutes separately submitted in Defendant’s Supplemental Appendix. Parenthetical references preceded by “RA” are to the Respondent’s Addendum at the end of this brief. -2- On November 26, 2012, defendant proceeded to trial before Justice Nunez and a jury. Four different undercover detectives testified that they had purchased crack cocaine from defendant. One, UC 90, had been the purchaser for six of the ten charged sales and testified in detail about each of those six sales. In addition, the three other undercover detectives between them had accompanied UC 90 for four of the six sales defendant made to her, corroborated UC 90’s account of those transactions, and described four additional sales they contemporaneously transacted with defendant. So, too, the testimony showed that all ten sales were made under good viewing conditions, conducive to accurate identifications by the trained narcotics detectives. All four undercover purchasers testified that they were certain that defendant was the man who transacted the sales. After hearing and considering the powerful trial evidence of defendant’s guilt, the jurors returned a verdict on December 3, 2012, which convicted defendant on all counts. On January 3, 2013, defendant was sentenced as set forth above. On appeal to the Appellate Division, defendant argued, as pertinent here, that the trial court erroneously ruled that he could not cross-examine Detective Arnaldo Rivera about the facts underlying three federal “false arrest” lawsuits in which Rivera had been named as a defendant. Although Rivera had been the “case detective” for the investigation into defendant’s drug-selling activity and, as such, coordinated and processed the paperwork for that investigation, he was not one of the undercover purchasers who personally dealt with defendant and obtained drugs from him in the -3- indicted sales. In another claim raised below, defendant contended that the court should have suppressed the one disputed pretrial identification from a photo array because he was the only person depicted in the array with an eye condition that he described as “obvious” – but that the suppression court determined was not “that noticeable” (A. 101). Finally, defendant maintained that he was unlawfully sentenced as a second felony drug offender whose prior conviction was a violent felony, because the relevant conviction, for Criminal Possession of a Weapon in the Third Degree under former Penal Law Section 265.02(4), while listed as a violent felony when he was convicted of it, was not listed as a violent felony offense when the enhanced sentence was imposed. In an opinion and order dated February 24, 2015, the Appellate Division unanimously affirmed defendant’s conviction. People v. McGhee, 125 A.D.3d 537 (1st Dept. 2015). The Appellate Division held that the trial court had properly exercised its discretion to preclude cross-examination of Detective Rivera about the federal lawsuits, and that the ruling did not violate defendant’s right to confront witnesses or to present a defense. Id. at 537-38. After noting that the federal lawsuits involved multiple defendants, the Appellate Division stated that defendant had failed to “specify any factual allegations supporting the assertion that this detective had participated in false arrests.” Id. at 538. In that sense, the panel determined, defendant had “failed to establish a good faith basis for eliciting the underlying facts of these lawsuits under the theory that they involved prior bad acts by this detective -4- bearing on his credibility.” Id. Alternatively, the Appellate Division held, any error was harmless; the court elaborated that “the People’s case rested primarily on the credibility and reliability of the testimony of the undercover officers who made the charged drug purchases, not on that of this detective, who supervised the case and provided an overview of the investigation.” Id. With respect to the suppression ruling, the Appellate Division determined that the record “support[ed] the court’s finding that the photo array was not unduly suggestive.” 125 A.D.3d at 538. In addition, the Appellate Division concluded that defendant’s sentence was legal because “[d]efendant’s conviction of criminal possession of a weapon in the third degree qualifie[d] as a violent felony.” Id. at 538-59, citing People v. Thomas, 122 A.D.3d 489 (1st Dept. 2014), lv. denied, 24 N.Y.3d 1123 (2015), and People v. Bowens, 120 A.D.3d 1148 (1st Dept. 2014), lv. denied, 25 N.Y.3d 949 (2015). On appeal to this Court, defendant renews the claims noted above. First, defendant argues that he should have been allowed to cross-examine Detective Rivera about his “involvement in three false arrests that became the subject of federal lawsuits” (Defendant’s Brief at 34). In addition to contesting the merits, defendant complains that the Appellate Division rejected the claim on grounds that violated the rule of People v. Concepcion, 17 N.Y.3d 192 (2011), and People v. LaFontaine, 92 N.Y.2d 470 (1998). Second, defendant insists that, because he was the only one in the disputed photo array with “an obvious eye condition” (Defendant’s Brief at 49), the pretrial identification by the trained undercover purchaser resulted from an unduly -5- suggestive procedure and should have been suppressed. Last, defendant argues that his sentence is illegal because, although his prior conviction for Criminal Possession of a Weapon in the Third Degree under former Penal Law Section 265.02(4) constituted a violent felony at the time of that conviction, it was not listed as a violent felony offense when he transacted or was sentenced for the sales in this case – by which time the crime had been reclassified as Criminal Possession of a Weapon in the Second Degree under Penal Law Section 265.03(3), which remained a violent felony. THE WADE HEARING The People’s Case Detective ARNALDO RIVERA was the case detective charged with coordinating a 15-month-long investigation into drug activity at the Abraham Lincoln Houses, a housing project in Manhattan, between 132nd and 135th Streets and between Park and Fifth Avenues (A. 74, 76-78). Over the course of the investigation, which began around January 7, 2011, undercover officers made about 60 buys of marijuana, crack cocaine, MDMA and heroin from about 24 different subjects (A. 76- 78). One of the subjects was defendant, from whom about five undercover detectives made about 13 purchases of crack cocaine (A. 79-80, 87). Two of those sales were made on March 13, 2012, to UC 90 and UC 93 (A. 80-81, 83). By then, undercover detectives had made about eight prior drug purchases from defendant (A. 81, 87); UC 90 had made about three of those previous buys (A. -6- 81), but UC 93 had not personally purchased drugs from defendant before (A. 81-82). Like all undercover officers, UC 93, a four-and-a-half-year veteran of Manhattan North Narcotics, had received specialized narcotics training that included the subject of making identifications (A. 75-76, 80). UC 90 used a previously-acquired cell phone number to contact defendant and arrange to meet with him (A. 82, 89). The two undercover detectives met defendant outside on Park Avenue at about 4:25 p.m., and, at defendant’s direction, they followed defendant into the building’s lobby (A. 82-83). There, UC 90 and UC 93 gave defendant prerecorded buy money, in exchange for which defendant handed each of them four Ziploc bags of cocaine (A. 83). Although Detective Rivera was not present for those sales, he had been to the building on several occasions and was familiar with the lighting conditions in the lobby (A. 82, 83). There were “plenty” of light fixtures “in the hallways, the elevator and the lobby area” (A. 83). In addition, “natural light” came through the windows, and it was still daylight at the time of the purchases (A. 83). Later on March 13, UC 90 and UC 93 both told Detective Rivera that they had purchased drugs that day (A. 90). Both undercover officers referred to defendant by his nickname, “Shorty” (A. 91-92). Rivera did not, however, have the opportunity to sit down that day to discuss the sale with UC 93 “in detail” or to put together a photo array for her to view to confirm defendant’s identity (A. 92). The more detailed discussion and photo array identification procedure occurred on May 8, 2012, eight -7- days before the long-term investigation was scheduled to conclude with arrests of all the subjects (A. 84-86, 92). The photo array Rivera showed UC 93 on May 8 consisted of six photos, including one of defendant (A. 61, 84-86; People’s Exhibit [“PX”] 1 [reproduction of photo array]). Rivera generated the array by using his office’s “Photo Manager”; he put in defendant’s NYSID number, which he already knew, and the system then generated photos of individuals with matching physical characteristics (A. 93-95). The detective was aware that defendant had some issue that affected the appearance of one of his eyes, i.e., that he might be “cross-eyed or dead-eyed or something along those lines” (A. 95).4 At some point, UC 93 described defendant as having “one eye that’s kind of off” (A. 91). But Rivera could not use the photo manager system to look for additional photographs depicting individuals with that feature (A. 95). The detective “scrolled through pages of photos,” and picked the ones “that look[ed] most fair” (A. 95-96). When Rivera showed UC 93 the photo array, he told her to “view it carefully” and tell him if she recognized anyone (A. 96). After viewing the array for about one minute, UC 93 identified photo number 5 – defendant’s photo – as “Shorty,” who had sold her crack cocaine on March 13 (A. 85, 96-97). 4 On cross-examination, defense counsel described defendant as “cross-eyed or dead- eyed or something along those lines” (A. 95). During his argument opposing the suppression motion, the prosecutor stated that defendant was “not cross-eyed” (A. 99). -8- On May 16, 2012, Detective Rivera arrested defendant at the rear of 2101 Fifth Avenue in the Lincoln Houses (A. 86-87). Defendant’s Case Defendant did not present any evidence at the hearing. The Suppression Court’s Decision The court credited Detective Rivera’s testimony (A. 100) and denied the suppression motion (A. 101). It concluded that the photo array was not unduly suggestive (A. 101). The court elaborated that “the photos [were] similar in nature” (A. 101). It specified that the individuals in the photos, including defendant, were similar “in size, facial shapes, close-cropped hair, [and] facial hair.” While there were variations in “[s]kin tone,” the court stated that nothing about those variations stood out (A. 101). The court recognized that “the photo of the defendant shows him not looking into the camera while all the others are looking into the camera” (A. 101). The judge commented, however, that the difference was not “that noticeable when you first look at the photo array” (A. 101). Instead, the judge stated, the overall impression left by the faces of those in the photo array was that the subjects were “similar in appearance” (A. 101). Accordingly, the court determined that the photo array was “fairly constituted” (A. 101). -9- THE EVIDENCE AT TRIAL The People’s Case The police investigate drug trafficking at the Lincoln Houses. In response to a large volume of community complaints about drug sales, a team of police officers conducted a long-term investigation into drug trafficking at the Abraham Lincoln Houses project, between 132nd and 135th Streets, and Park and Fifth Avenues. The team included Detective ARNALDO RIVERA, a nine-year police department veteran who had worked in the Manhattan North Narcotics command for between four and one-half and five years, and Detective MARTIN CAMPOS, an eight-and-one-half-year department veteran who had worked in the narcotics bureau for three and one-half to four years (Rivera: A. 158-60, 162, 199; Campos: A. 240-41, 252-53). The broad investigation ran for a year and a half, from January 2011 to May 30, 2012, and targeted about 24 different people who sold a variety of drugs, including crack cocaine, cocaine, marijuana, heroin and MDMA (“Ecstasy”) (Rivera: A. 163-64, 200-01). Within that larger operation, one investigation targeted defendant and his brother, Bobby Lane, for selling crack cocaine (Rivera: A. 164-66). For that investigation, Rivera was the “primary” or “the case” detective (Rivera: A. 169; Campos: A. 243-44). Campos assisted him (Campos: A. 241). As the “case detective,” Rivera “coordinated” with and “supervise[d]” the undercover purchasers and field team members, and processed the necessary paperwork (Rivera: A. 169, 200, -10- 213). He also was “responsible” for the arrest that marked the end of the investigation (Rivera: A. 169). With all that, Rivera regarded his “primary job” as preparing and processing the paperwork (Rivera: A. 213). Four different undercover detectives were assigned to the sales for which defendant ultimately was prosecuted (Rivera: A. 170; Campos: A. 144). Those “primary” or purchasing undercovers were UC 76, UC 90, UC 93, and UC 219 (id.).5 The undercover purchasers were multi-year veterans of the police department with years of experience working for Manhattan North Narcotics (see UC 219: A. 408-09; UC 76: A. 458, 483; UC 93: 499). For example, UC 90, who was involved in the largest number of the drug sales defendant made, was a nine-year police department veteran who had worked for the Manhattan North Narcotics command for approximately five and one-half years (UC 90: A. 266-67, 271-72, 275, 330). Detective Rivera reviewed the buy reports the undercover detectives prepared after the different sales (see Rivera: A. 186, 189, 192-93, 195). At times, the undercover purchasers also acted as ghost officers, with the responsibility to stay close to the purchasing undercover and communicate with supervisors and the field team (Rivera: A. 171; Campos: A. 244; UC 90: A. 273). Still others, including Rivera and Campos, acted at various times as members of the field 5 A fifth detective, UC 213, also acted as a purchaser during the investigation, but subsequently was reassigned to administrative duties because of personal health problems (Rivera: A. 170-71, 216-17; see UC 90: A. 286). -11- team (Rivera: A. 171-72; Campos: A. 244; UC 90: A. 273). Because it was a long-term investigation, no arrests were made immediately after the individual sales (Rivera: A. 173; UC 90: A. 333-34; UC 219: 410, 422). During the investigation, team members referred to defendant by two “JD” names: first, as “JD Izzy,” and then as “JD Shorty”; they referred to defendant’s brother as “JD Buddha” (Rivera: A. 217-18, 234). Both brothers were black with short haircuts, and had a similar “characteristic with the eye” (Rivera: A. 165; UC 90: A. 270-71), which UC 90 called a “distinguished eye” (UC 90: A. 270).6 Rivera described defendant as having “a lazy eye or a bad eye on one side” (Rivera: A. 165), while UC 219 described defendant as “cross-eyed” (UC 219: A. 411). While defendant’s brother was about 5’9” or 5’10,” defendant was shorter at about 5’2’’ (Rivera: A. 165; UC 90: A. 271). Defendant makes two drug sales on November 18, 2011. At about 5:00 p.m. on November 18, 2011, UC 76 and UC 90 were walking east on East 132nd Street, off of Madison Avenue, when defendant approached them and agreed to sell them “dimes” – or $10 bags – of crack cocaine (UC 90: A. 276, 279, 281-82, 284, 344-45; UC 76: 464, 465, 488-89). Defendant told the undercover detectives to follow him into a nearby building in the Lincoln Houses project (Campos: A. 247; UC 90: 276-77; UC 76: A. 464, 467). In the back of the lobby, by a 6 At one point during the investigation, Lane suffered an eye injury and covered one eye with a patch (Rivera: A. 165, 167). -12- staircase, UC 90 handed defendant $20 in buy money, after which defendant gave her two orange Ziplocs of crack cocaine he retrieved from “a big clear Ziploc bag” he was carrying (UC 90: A. 277, 278-80, 282; UC 76: 464-65, 467-68; PX 4 [two Ziplocs purchased by UC 90]). “[A]lmost at the same time,” UC 76 gave defendant $25 for three Ziplocs of crack cocaine (UC 90: A. 277-78, 281; UC 76: A. 465, 467, 470-71, 490; PX 14 [three Ziplocs purchased by UC 76]). The lobby was “[w]ell lit” (UC 76: A. 468; UC 90: A. 280). UC 76 was right next to UC 90, facing defendant. All three were within touching distance of one another, and nothing blocked either purchasing undercover detective’s view of defendant (UC 90: A. 280-81; UC 76: A. 468-69). At the end, defendant gave UC 76 a cell phone number to use to contact him to purchase more drugs in the future (UC 90: A. 285, 353; UC. 76: A. 473). Afterwards, the undercover detectives radioed the field team about the sales (UC 90: A. 282; UC 76: A. 469). In the transmission, UC 90 described defendant as a black man, between 25 and 30 years old, 120 to 130 pounds, and 5’3” to 5’6” (UC 90: A. 283, 346).7 UC 90 designated defendant “JD Shorty,” because defendant had introduced himself as “Shorty” (UC 90: A. 283, 342; UC 76: A. 473). Later, UC 76 and UC 90 each gave the Ziploc bags they had purchased from defendant to Detective Campos, who vouchered them (Campos: A. 243, 245, 247-49; UC 90: A. 7 In an apparent transcription error, the minutes reflect that, on direct examination, UC 90 estimated defendant’s age as between 35 and 40 years old (A. 283). -13- 283; UC 76: A. 471).8 Subsequent analysis confirmed that the bags contained cocaine (Criminalist SAI YEE TSANG: TT. 237-44; PX 4 [bags purchased by UC 90]; Criminalist USHABEN NAIK: TT. 275-78; PX 14 [bags purchased by UC 76]). The search warrant application that Detective Rivera submitted toward the end of the investigation incorrectly attributed the two November 18 drug sales to “JD Buddha,” defendant’s brother (Rivera: A. 218-20, 227). Rivera reviewed and signed the warrant, but had not personally drafted it (Rivera: A. 227). He “made a mistake and missed the fact that the wrong name was listed [i]n that particular paragraph” (Rivera: A. 220). In fact, Rivera knew defendant’s name prior to the November 18 sales, because defendant had made two earlier sales to UC 213 on May 11 and May 18, 2011 (Rivera: A. 227-28, 233).9 UC 90 was not involved in preparing the search warrant application and never told Rivera that defendant’s brother was the seller for the November 18 transactions (UC 90: A. 347). She was “sure” that the individual from whom she purchased crack cocaine on November 18 was defendant, not Lane (UC 90: A. 284-85, 293-94). 8 That day, Rivera was on “administrative” or “detail” duty and also was involved in an unrelated eavesdropping wiretap investigation (Rivera: A. 174). 9 The identity of the undercover purchaser in the May sales was elicited by defense counsel on re-cross examination (Rivera: A. 233). -14- Defendant and Lane together make one charged sale on February 1, 2012. At about 7:00 p.m. on February 1, 2012, UC 90 and UC 213 approached Bobby Lane in front of another building in the Lincoln Houses development (UC 90: 134, 138; PX 6 [photo of Bobby Lane]), and asked whether “Shorty” was around (UC 90: A. 286-87). Lane responded that “Shorty” was his brother and that the undercover detectives should follow him into the building (UC 90: A. 287). He brought the detectives up to the tenth floor, where he placed a phone call and told the person on the other end, “Your peeps are here” (UC 90: A. 287). Lane told the undercovers to wait and then left (UC 90: A. 287). Moments later, defendant appeared, and each undercover asked him for two dimes of crack (UC 90: A. 287-88). The tenth floor was lit by fluorescent lighting on the ceiling (UC 90: A. 290). UC 90 stood “very close” to, and within a foot of defendant (UC 90: A. 290-91). Defendant called someone and stated, “Times two” (UC 90: A. 288). Soon thereafter, Lane returned, took $20 from each undercover purchaser and handed each one two “little twist[s]” of crack cocaine (UC 90: A. 288-89, 294-96; PX 5 [twists purchased by UC 90]). Afterwards, defendant told UC 90 that his phone number had changed from when they had last seen one another (UC 90: A. 368-69, 371-72), and provided a different phone number, 347-245-xxxx, at which to call him for future transactions (UC 90: A. 296-97, 355). Records showed that, at 7:02 p.m. that evening, the phone number defendant provided first received a call from, and then made a call to, UC 90’s cell phone number 347-680-xxxx (UC 90: A. 297-98) (NORMAN CLARK -15- [records custodian for Sprint Nextel]: TT. 298-303), consistent with each caller having saved the other’s number (Clark: TT. 303-04). Upon leaving the building, UC 90 notified the field team that there had been a positive buy from two male sellers, each between 20 and 25 years old. UC 90 additionally described Lane, JD Buddha, as between 5’7’’ and 5’9” and as “missing an eye.” The detective described defendant, JD Shorty, as between 5’2” and 5’3” and “cross-eyed” (UC 90: A. 291-92, 346-47). UC 90 gave the purchased twists to Rivera, who vouchered the drugs (Rivera: A. 184-85; UC 90: A. 294). Subsequent analysis confirmed that the twists contained cocaine (Criminalist SPARTAK SHEHU: TT. 251-55; PX 5 [twists]). Defendant makes two drug sales on March 9, 2012. On March 9, 2012, shortly after 5:00 p.m., UC 90 and UC 76 again went together to buy drugs from defendant. UC 76 listened as UC 90 called defendant several times to arrange to meet. Phone records confirmed that, between 4:59 and 5:10 p.m. that evening, three phone calls, lasting 32 seconds, 45 seconds, and 4 seconds, respectively, were placed from UC 90’s cell phone to 347-245-xxxx, the number defendant most recently had provided. Defendant told UC 90 to meet him in front of the same Madison Avenue building where the November 18 sales had occurred; as before, he brought UC 90 and UC 76 inside and over to a staircase in the back of the lobby (UC 90: A. 298-300, 358-59; UC 76: A. 474-76; Clark: TT. 304-05). There, at about 5:10 p.m., UC 90 handed defendant $40 in prerecorded buy money, in -16- return for which defendant gave her four black Ziploc bags of crack cocaine (UC 90: A. 300, 304-05; PX 7 [four black Ziplocs purchased by UC 90]). With scarcely any break, UC 76 purchased three additional dime bags of crack cocaine from defendant (UC 90: A. 300, 302-03; UC 76: 477, 479; PX 12 [three black Ziplocs purchased by UC 76]). Once again, the area by the staircase was “well lit,” and defendant and the undercover purchasers were face-to-face, within touching distance of one another (UC 90: A. 301; UC 76: A. 478). After the buys, UC 90 and UC 76 radioed their field team, and later each handed Rivera the bags they had purchased, which Rivera vouchered (Rivera: A. 188- 89; UC 90: A. 304; UC 76: A. 478-79). Subsequent analysis confirmed that the bags contained cocaine (Criminalist MELISSA McLEAN: TT. 260-63; PX 12 [bags purchased by UC 76]; Criminalist PUSHPA JETHANANDANI: TT. 267-69; PX 7 [bags purchased by UC 90]). Defendant makes two drug sales on March 13, 2012. On March 13, 2012, with UC 93 “directly next” to her, UC 90 again called defendant at 347-245-xxxx to arrange to purchase crack cocaine (UC 90: A. 306-07; UC 93: A. 504-05); phone records showed incoming calls to that number from UC 90’s cell phone number, at about 4:17 p.m. and 4:26 p.m., with the calls lasting 18 seconds and 13 seconds, respectively (Clark: TT. 305-06). Defendant told UC 90 to meet him in front of the Park Avenue address (UC 90: A. 306) that had been the site of the February 1 sales. When UC 90 and UC 93 went there, defendant led them into -17- the building and took them to the staircase; there, each undercover detective handed defendant $40 in prerecorded buy money in exchange for which defendant gave them each four Ziploc bags of crack cocaine (UC 90: A. 306-07, 309-10; UC 93: A. 504-06, 508-10; PX 8 [Ziplocs purchased by UC 90]; PX 13 [Ziplocs purchased by UC 93]). The lobby area where the transactions occurred was “well lit” (UC 90: A. 307; UC 93: A. 506). And once again, the undercover purchasers stood next to each other and within arm’s length of defendant, and faced defendant with nothing blocking their view (UC 90: A. 308; UC 93: A. 506-07). After they left the building, UC 90 radioed the field team about the transactions (UC 90: A. 308; UC 93: A. 507, 512-13). Later, UC 90 and UC 93 each gave Detective Campos the four Ziplocs they each had purchased from defendant (Campos: A. 243, 251-52; UC 90: A. 308; UC 93: 508). Subsequent tests were positive for the presence of cocaine (Jethanandani: TT. 270-72; PX 13 [bags purchased by UC 93]; Criminalist SUMAN PATEL: TT. 285-87; PX 8 [bags purchased by UC 90]). Defendant transacts two sales on March 28, 2012. On March 28, 2012, UC 90 and UC 219 were together in the vicinity of the Lincoln Houses when UC 90 again called defendant to get more drugs (UC 90: A. 311-12; UC 219: 414-15, 427). Phone records for the number defendant previously had given UC 90 showed a 32-second incoming call, at about 1:43 p.m., from UC 90’s -18- cell phone number (Clark: TT. 306).10 Defendant told UC 90 to meet him in front of the Madison Avenue address where they previously had met, and UC 90 and UC 219 went there (UC 90: A. 311; UC 219: A. 414). At about 2:00 p.m., the undercover detectives followed defendant inside (UC 90: A. 311; UC 219: 414, 416). There, in well-lit conditions and standing face-to-face and in close proximity, UC 90 purchased five clear Ziploc dime bags of crack cocaine from defendant for $40; the price was a concession because UC 90 now was defendant’s “customer.” In addition, UC 219, who concurred that it was “fairly bright” inside, and who also stood close to and “facing” defendant, purchased two dime bags of the drug for $20 (UC 90: A. 311-13, 314-15; UC 219: A. 414-17, 418-19; PX 9 [five Ziplocs purchased by UC 90]; PX 11 [two Ziplocs purchased by UC 219]). The officers stood close to one another and each one watched as the other bought drugs from defendant (UC 90: A. 311; UC 219: A. 415, 417). Back at the undercover vehicle, UC 90 and UC 219 radioed the field team that they had purchased drugs from JD Shorty (UC 90: A. 314; UC 219: A. 418). Later, they each gave Detective Rivera the bags they had purchased for vouchering and processing (Rivera: A. 192-93; UC 90: A. 314; UC 219: A. 418). Subsequent analysis 10 The cell site in the Bronx through which this call was transmitted, within about half a mile of the Lincoln Houses project, also was the original and terminating cell site for all other calls for which phone records were introduced into evidence at trial (Clark: TT. 309- 11; TANYA DEVULPILLIERES [cell site analyst for New York County District Attorney’s Office]: TT. 433-34, 437; PX 17, 18, 19 [phone records]; PX 20 [map plotting cell site information]). -19- confirmed that those bags contained cocaine (Criminalist AIMEE WONG: TT. 223- 24, 228-29; PX 11 [bags purchased by UC 219]); Tsang: TT. 242-45; PX 9 [bags purchased by UC 90]). Defendant transacts another sale on March 30, 2012. On March 30, at about 6:00 p.m., UC 90 was acting as ghost for an undercover purchaser targeting a different seller at the Lincoln Houses, when she “bumped into” defendant, who asked what she was doing there (UC 90: A. 319-22, 338). UC 90 told defendant that she was “talking to friends” she knew from the neighborhood, but was uncomfortable with that response and felt she “had no choice but to” arrange another drug purchase from defendant (UC 90: A. 320). Defendant told UC 90 to go into a different Madison Avenue building; inside, defendant agreed to sell UC 90 three dimes of crack for the reduced price of $20, since UC 90 was a pre-existing customer (UC 90: A. 319-20, 322, 324, 326-27; PX 10 [three Ziplocs purchased by UC 90]). The transaction took place at the first-floor staircase, in an area “lit with white fluorescent lights” (UC 90: A. 322-23). Defendant stood “a foot away from” UC 90, “right in front of” her (UC 90: A. 323). Afterwards, UC 90 saw the other undercover purchaser get drugs from a different seller, and she radioed her field team about both sales, adding that hers had been from “JD Shorty” (UC 90: A. 325-26). Later, UC 90 handed Rivera the bags she had purchased from defendant; Rivera vouchered them, and subsequent analysis confirmed that they contained cocaine (Rivera: A. 194-95; Naik: TT. 279-81; PX 10). -20- Defendant is arrested. At about 9:15 a.m. on May 16, 2012, which was “take down” day for the broad long-term investigation, Detective Rivera and two members of the field team arrested defendant in the rear of another building in the Lincoln Houses development (Rivera: A. 195-96, 222-23). A search warrant was executed at defendant’s apartment, with negative results (Rivera: A. 229). The undercover purchasers identify defendant at trial as the seller. At trial, UC 90 stated that she was “very certain” that defendant was the man who sold her crack cocaine on November 18 (UC 90: A. 284-85); was “one hundred percent sure” that defendant was one of the sellers on February 1, 2012 (UC 90: A. 298); was “[v]ery certain” and had “[n]o doubt” that defendant sold her the crack cocaine she purchased on March 9, March 13, and March 28 (UC 90: A. 305, 309-10, 315); and was “[v]ery sure” that defendant sold her the drugs she purchased on March 30 (UC 90: A. 325). UC 219 was “[a] hundred percent certain” that defendant was the seller from whom he purchased crack cocaine on March 28 (UC 219: A. 420). UC 76 was “[a] hundred percent certain” that defendant was the person who sold him crack cocaine on November 18, 2011 and March 9, 2012 (UC 76: A. 481). And UC 93 was “[a] hundred percent positive” that defendant was the man who sold her drugs on March 13 (UC 93: A. 509-10). Defendant’s Case Defendant did not present any evidence at trial. -21- POINT I THE TRIAL COURT PROPERLY RULED THAT DEFENDANT COULD NOT CROSS-EXAMINE DETECTIVE RIVERA ABOUT “FALSE ARREST” ALLEGATIONS IN UNRELATED FEDERAL LAWSUITS (Answering Defendant’s Brief, Point I). At trial, defendant sought to cross-examine Detective Rivera about “false arrest” allegations made in federal lawsuits unrelated to this case. The prosecutor argued that defendant’s proffer was vague and urged the court to exercise its discretion to deny defendant’s request. The trial court determined that the proposed inquiry lacked significant probative value and excluded it “based on what has already been stated” (A. 132). Defendant argues that the ruling violated his constitutional right to confrontation; he maintains that “the detective’s prior involvement in false arrests” (Defendant’s Brief at 34) entailed “bad acts . . . relevant to the witness’s credibility” (id.) and further “went to the heart of the defense” that he had been “falsely arrested” (id. at 35).11 However, the ruling was entirely proper. Rivera was one of multiple police officers named as defendants in the civil lawsuits, and, as the Appellate Division found, 125 A.D.3d at 538, defendant failed to “specify any factual allegations” regarding what Rivera personally supposedly had done that would fairly qualify as a prior “bad act” probative of his credibility. 11 Defendant also references the constitutional right to due process, but he does not separately analyze how that protection would apply. Accordingly, the People do not separately address that claim. -22- Moreover, defendant set forth no factual allegations that fairly made the unrelated incidents probative of his innocence in this case, such as by showing that alleged misconduct by Rivera in those cases gave rise to an inference that he acted likewise in this case. In addition, the jury was ill-equipped to evaluate claims of “false arrests” in unrelated cases, and defendant’s proposed inquiry could have resulted in confusing mini-trials of those side issues. Accordingly, as the Appellate Division concluded, the trial court “properly exercised its discretion,” 125 A.D.3d at 537, to prevent cross- examination that would have had minimal probative value at best and that entailed an unacceptable risk of importing prejudicial innuendo and of unjustifiably confusing the issues. At the same time, as the Appellate Division also concluded, any error in precluding the proposed cross-examination would have been harmless. 125 A.D.3d at 538. Defendant wrongly deems Detective Rivera “a critical witness” (Defendant’s Brief at 27). In reality, as the Appellate Division stated, “the People’s case rested primarily on the credibility and reliability of the testimony of the undercover officers who made the charged drug purchases, not on that of this detective, who supervised the case and provided an overview of the investigation.” Id. Because the testimony of the undercover purchasers yielded overwhelming evidence of defendant’s guilt, the restriction on the cross-examination of Detective Rivera could not reasonably have affected the outcome. -23- A. The Relevant Record. As the trial in this case began, just before the court delivered its preliminary instructions, defense counsel sought permission to cross-examine the People’s first witness, Detective Rivera, about what counsel deemed “prior bad and immoral acts” (A. 127). Counsel asserted that “a good faith basis” (A. 128) for the questions was provided by “the existence” of “lawsuits that ha[d] been filed” against Rivera and “other officers” (A. 127-28). Counsel maintained that he “should be able to confront” (A. 128) Rivera with questions regarding what were “essentially false arrest allegations” that the police had “arrested people who committed no crimes” (id.). As stated by counsel, “[m]ost of the questions” would “go to the heart of the defense” – i.e., that defendant had been “falsely arrested” (id.). But counsel did not provide the court with the complaints or other documentation of the factual allegations in the referenced lawsuits, nor did he describe any specific acts of misconduct alleged against Detective Rivera personally. The prosecutor responded that the issue had been “sprung on” him and added, “I don’t think defense counsel could be any more vague on his application concerning these lawsuits” (id.). The court asked what, specifically, defense counsel intended to ask Detective Rivera about the federal lawsuits (A. 129). Counsel responded that he would not reference the lawsuits themselves because he recognized that “[a]nyone can be arrested and . . . make an allegation” (id.). Instead, counsel stated, he would ask if the detective was “aware of being involved in the arrest[s] of the named plaintiff[s]”; if the -24- “arrest[s] took place on the dates . . . alleged”; and if, in fact, “those plaintiffs committed no crimes and [the detective] participated in a false arrest” (id.). The court remarked, “I cannot allow that. It’s irrelevant to this case” (id.). The court continued, “I know you say it’s . . . part of your defense,” but questioned “the relevance of a defendant in another case claiming false arrest against this police officer” (id.). Furthermore, the court commented, “[n]othing ha[d] been proven that he indeed falsely arrested anybody” (A. 129-30). Counsel “agree[d]” that the allegation was “unsubstantiated beyond the allegation” (A. 130). The court stated, “I mean, you have a good faith basis, but it still seems to be irrelevant” (id.). In response, counsel argued that the defense could “confront any witness . . . about any prior vicious bad act, immoral act or malicious act that [he had] committed” (A. 130). As envisioned by counsel, the detective could “deny it” or could say the police had a basis for the arrest “and explain what” that was (id.). Further, counsel stated, the proposed inquiry was “direct[ly] link[ed]” to the defense, because it “call[ed] into question” the witness’s “actions as a police officer” (id.). The prosecutor observed that “good faith basis” was merely a “threshold” inquiry that would permit questioning about a “bad act,” while the ultimate determination whether to allow the cross-examination was a matter for the court’s “discretion” (A. 131). He asserted that the prejudice would be comparable to that from the question, “When did you stop beating your wife?” (id.). The prosecutor -25- elaborated, “Clearly, after Detective Rivera says, ‘No that never happened,’ the inference will remain” (id.). Next, counsel stated that “two of the three” lawsuits to which he had been referring had been settled by the City, one for $30,000 and the second for $75,000 (A. 131-32). Counsel remarked that he “ha[d] the stipulations of settlement” that had been filed in federal court (A. 132). Counsel further stated that the stipulations contained “no specific acknowledgements of wrongdoing on behalf of any particular officer or . . . the [C]ity” (A. 132). The prosecutor commented that the settlements had not “resolved” the charges “unfavorably” to the particular witness, and that the Corporation Counsel’s Office settled lawsuits when it believed it would be “more expensive to try the case” (id.). The court declined to permit the proposed cross-examination, stating, “I am not going to allow it based on what has already been stated” (A. 132). B. The Applicable Law. “It is well settled that ‘[a]n accused's right to cross-examine witnesses . . . is not absolute’.” People v. Hayes, 17 N.Y.3d 46, 53 (2011), quoting People v. Williams, 81 N.Y.2d 303, 313 (1993); accord People v. Corby, 6 N.Y.3d 231, 234 (2005). “The right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence.” Hayes, 17 N.Y.3d at 53 (internal quotation marks and citations omitted). Further, the admissibility of all evidence is governed by a “balancing analysis,” People v. Primo, 96 N.Y.2d 351, 356 (2001), under which a trial -26- court balances probative value against the potential for undue prejudice, including the risk of “confusing the issues or misleading the jury,” id. at 355; accord People v. Reginald Powell, __ N.Y.3d __, 2016 WL 1306692 (April 5, 2016); People v. Negron, 26 N.Y.3d 262, 268 (2015). Thus, “the scope of cross-examination is within the sound discretion of the trial court . . ., which must weigh the probative value of such evidence 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.” Hayes, 17 N.Y.3d at 53 (internal quotation marks omitted), quoting Corby, 6 N.Y.3d at 233- 34. That the right of cross-examination is part of the constitutional right to confrontation, see Davis v. Alaska, 415 U.S. 308, 316-17 (1974); People v. McGee, 68 N.Y.2d 328, 333 (1986), does not change the core analysis. Under the constitutional protection, “trial judges retain wide latitude” to restrict cross-examination into matters that are “only marginally relevant,” or that risk undue “prejudice [or] confusion of the issues.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).12 12 This analysis is equally applicable to the State, as well as the Federal, constitutional right to confrontation. In a footnote, defendant contends that, if the Federal right to confrontation does not afford him a basis for relief, the State counterpart should be interpreted to provide broader protection (Defendant’s Brief at 28 n.6). Because this is the first time defendant ever has suggested such a divergence, this aspect of his claim is unpreserved. Moreover, the dissenting opinion in People v. McCray, 23 N.Y.3d 193 (2014), which defendant cites as support for his new claim, did not articulate a different standard for evaluating claims under the State, as opposed to Federal Confrontation Clause. It contemplated only that the State constitutional right to confrontation would have a broader reach than the federal right, in the sense that it would encompass “[d]enial of documents that would have assisted the defense in preparing for cross-examination of the complainant,” 23 N.Y.3d at 201, 203, which the plurality opinion in Pennsylvania v. Ritchie, 480 U.S. 39 -27- (Continued…) As a general matter, this State’s rules of evidence allow a party to impeach a witness’s general credibility by cross-examination about prior “immoral, vicious, or criminal acts which have a bearing on [the individual’s] credibility as a witness.” E.g., People v. Schwartzman, 24 N.Y.2d 241, 244 (1969); see Prince, Richardson on Evidence § 6-406 (11th ed.). Such cross-examination must be conducted “in good faith and upon a reasonable basis in fact.” E.g., People v. Duffy, 36 N.Y.2d 258, 262 (1975); People v. Sorge, 301 N.Y. 198, 200 (1950); Richardson on Evidence § 6-406 at p. 389. The “good faith basis” requirement has at least two different components. First, it requires a sufficiently reliable source of information that amounts to more than speculation or rumor. See People v. Spencer, 20 N.Y.3d 954, 956 (2012) (good faith basis provided by the defendant’s alleged personal observations); People v. Colon, 43 A.D.3d 720, 720 (1st Dept. 2007) (no good faith basis where source of information was “mere rumor”); People v. Macon, 256 A.D.2d 134, 134 (1st Dept. 1998) (no good faith basis where offer of proof was “speculative and based upon totally unreliable rumor”). Second, the source must specify “bad acts” attributable to the particular witness. See People v. Thomas, 46 N.Y.2d 100, 105 (1978) (stating that alleged complaint against fellow officer, not witness himself, was “too remote” to constitute impeachment evidence); People v. Andrew, 54 A.D.3d 618, 618 (1st Dept. (1987), had deemed outside the scope of the federal Confrontation Clause, 23 N.Y.3d at 203-04. -28- ______________________ (…Continued) 2008) (no good faith basis where allegations did not “even support an inference, that [the testifying] detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers”). In addition to having a “good faith basis,” the impeachment must concern “bad acts” that fairly reflect on credibility. While “not limited to questions about prior crimes or like misconduct,” People v. Walker, 83 N.Y.2d 455, 461 (1994), the prior “bad acts” must “demonstrate[ ] an untruthful bent or significantly reveal[ ] a willingness or disposition on the part of the particular [witness] voluntarily 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 (internal quotation marks and citation omitted). In other words, the prior bad acts must be “both relevant and material to the credibility, veracity and honesty of” the witness. People v. Coleman, 56 N.Y.2d 269, 273 (1982). At the same time, the general credibility of a witness constitutes a “collateral” issue. See, e.g., People v. Vargas, 88 N.Y.2d 363, 381 (1996) (stating that trial court in another case properly refused to strike testimony that involved only “collateral matters relating to general credibility”); People v. Siegel, 87 N.Y.2d 536, 544 (1995) (stating that less drastic remedy would be appropriate where assertion of fifth amendment privilege denies right of cross-examination with respect to “collateral matters . . . concerning credibility”). Notably, in People v. Gissendanner, 48 N.Y.2d 543, 548 (1979), where the defendant claimed that the constitutional right to -29- confrontation required the production of the personnel records of two testifying police officers, this Court distinguished between information “relevant and material to the determination of guilt or innocence,” on the one hand, and information sought for “nothing more than impeachment of witnesses’ general credibility,” on the other hand. This Court stated that, with respect to evidence that impeaches a witness’s general credibility, “the defendant’s rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial, i.e., its availability rests largely on the exercise of a sound discretion by the trial court.” Id. Indeed, this Court has long recognized that “[t]he extent to which disparaging questions, not relevant to the issues, but bearing on the credibility of a witness, may be put upon cross-examination is discretionary with the trial court,” Duffy, 36 N.Y.2d at 262. That discretion applies to the cross-examination of prosecution witnesses as well as defendants (see Defendant’s Brief at 32-33). True, unlike a defendant, a prosecution witness is not entitled to an advance ruling under the rationale of People v. Sandoval, 34 N.Y.2d 371, 374-75 (1974), regarding the admissibility of evidence of prior bad acts. McGee, 68 N.Y.2d at 331-32. As this Court commented in McGee, “only [when the defendant is the witness] can the questioning result in improper conviction on the basis of inadmissible evidence of prior bad acts.” Id. at 332. Still, a non-defendant witness “is subject to cross-examination under the usual rules of evidence.” McGee, 68 N.Y.2d at 332. As previously stated, those “ordinary -30- evidentiary principles” entail “balancing probative value against the potential for undue prejudice, delay and confusion,” Negron, 26 N.Y.3d at 367 (internal quotation marks and citation omitted) – a balancing analysis reviewable only for an abuse of discretion, see, Powell, __ N.Y.3d at __, 2016 WL 1306692; Corby, 6 N.Y.3d at 235; Duffy, 36 N.Y.2d at 262-63; see also La Beau v. People, 34 N.Y. 223, 230 (1866). C. This Court is not barred from fully reviewing the challenged ruling. As will be elaborated below, under the applicable principles of law just described, the trial court properly limited the cross-examination of Detective Rivera. As a threshold matter, however, defendant contends that People v. Concepcion, 17 N.Y.3d 192 (2011), and People v. LaFontaine, 92 N.Y.2d 470 (1998), limit the scope of this Court’s review of that issue (see Defendant’s Brief at 38-40). That contention is without merit. The Concepcion/LaFontaine rule instructs that neither an intermediate appellate court nor this Court may affirm a judgment in a criminal case “on a ground not decided adversely to the appellant by the trial court.” Concepcion, 17 N.Y.3d at 195, LaFontaine, 92 N.Y.2d at 473-74; see CPL 470.15(1),13 470.35(1).14 Defendant argues that the trial court’s comments that the cross-examination was or seemed to be 13 The relevant language from CPL 470.15(1) provides that an intermediate appellate court “may consider and determine any question of law . . . involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” 14 CPL 470.35(1) provides that this Court has jurisdiction to review “any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment.” -31- “irrelevant” (A. 129, 130) constituted the sole ground on which the trial court ruled adversely to him and that appellate review thus is limited to whether the proposed cross-examination was irrelevant as a matter of law (Defendant’s Brief at 38). Defendant additionally maintains that, when the trial court remarked, “I mean you have a good faith basis” (A. 130), it resolved all “good faith basis” issues in his favor (id. at 39). Thus, defendant contends, under the Concepcion/LaFontaine rule, appellate review may not include the questions (1) whether the defense demonstrated a “good faith basis” for the proposed cross-examination, or (2) whether the ruling excluding the proffered cross-examination was a sound exercise of discretion. But defendant’s arguments improperly ignore the larger context of the trial court’s remarks and ultimate ruling, and thus too narrowly interpret the import of that ruling. Notably, the comments that defendant cites as defining the entirety of the trial court’s ruling were not the court’s last words on the subject. The comments were followed by additional discussion, which mentioned additional considerations. Ultimately, the judge ruled that the requested cross-examination would not be permitted “based on what already has been stated” (A. 132) – language that embraced all the considerations addressed during the preceding discussion. As this Court recently stated in rejecting another LaFontaine/Concepcion claim, “[w]here a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge’s stated reasoning.” People v. Christopher Nicholson, __ N.Y.3d __, 2016 WL 633925 (Feb. -32- 18, 2016). If the predicate for an evidentiary ruling is not “fully articulated,” but some reasons appear from the record, an appellate court may “consider[ ] the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination.” Id. Here, the context of the trial judge’s ultimate ruling disallowing the requested cross-examination “based on what has already been stated” (A. 132) shows that the ruling did not rest solely on a determination that the questioning would be “irrelevant” (A. 129, 130) as a matter of law. The discussion before and after the judge twice used the word “irrelevant” touched on a variety of considerations and concerns, all of which were fairly encompassed by the judge’s reference to “what has already been stated” (A. 132). For example, early on in the discussion, defense counsel stated that “other officers” (A. 127) also were defendants in the federal lawsuits. In addition, the prosecutor stated that defendant’s representations regarding the lawsuit were “vague” (A. 128), and he questioned the connection between the “false arrest” allegations and “this witness” (A. 131). All those factors were consistent with the Appellate Division’s determination that “defendant did not specify any factual allegations supporting the assertion that this detective had participated in false arrests.” 125 A.D.3d at 537. Moreover, as noted, before the trial court finally ruled that it would not allow the cross-examination, the prosecutor expressly invoked the court’s “discretion” (A. 131). And the prosecutor twice linked that discretion to whether the asserted “prior -33- bad acts” were “unfavorable towards this witness” (A. 131, 132). Further, the prosecutor argued that the proposed cross-examination questions would give rise to prejudicial “inference[s]” that would “remain” even in the absence of confirmation by the witness (A. 131). The trial court did not disagree with any of those points. In addition, before the court definitively ruled against allowing the cross-examination, defense counsel remarked that the stipulations of settlement that had ended two of the lawsuits contained “no specific acknowledgement of wrongdoing on behalf of any particular officer or the [C]ity” (A. 132). Thus, the context shows that, when the court precluded the cross-examination “based on what has already been stated” (id.), it included among the reasons for its ruling that Detective Rivera had not personally been linked to any misconduct that would impact his credibility and that the probative value of the proposed questioning was too low to overcome the potential for undue prejudice. Relevance, “good faith basis,” and the balancing of probative value against prejudice all are aspects of the exercise of discretion the trial court’s ruling entailed. See Thomas, 46 N.Y.2d at 105; see also Powell, __ N.Y.3d at __, 2016 WL 1306692 (quoting from Primo, 96 N.Y.2d at 356, that “general balancing analysis . . . governs the admissibility of all evidence”). Notably, this Court has drawn a distinction between “separate alternative grounds for decision,” which implicate the LaFontaine/Concepcion procedural bar, and different aspects of a “multipronged legal ruling,” which do not. People v. Garrett, 23 N.Y.3d 878, 885 n.2 (2014). The -34- different aspects of a “multipronged” ruling are not “clearly separate and analytically distinct from the [trial] court’s determination.” Id. Thus, in Garrett, whether “the People ‘suppressed’ the favorable evidence,” id. at 886, and whether the nondisclosed evidence met the test of materiality, id. at 891, while usefully discussed separately, were found to be different elements of “the multifactor Brady test,” id. at 885 n.2, not separate alternative grounds for decision, for purposes of LaFontaine/Concepcion analysis. Likewise, here, while “good faith basis,” relevance, and the balance of probative value against undue prejudice may be discussed separately, they all are related to the “general balancing analysis,” Powell, __ N.Y.3d at __, 2016 WL 1306692, quoting, Primo, 96 N.Y.2d at 356, that governs the admissibility of evidence. On the particular issue of whether defense counsel’s proffer established a good faith basis for his proposed line of cross-examination, the context of the trial judge’s comment, “I mean, you have a good faith basis” (A. 130), shows that the trial court used the term in a different sense than the Appellate Division did when it stated that defendant “failed to establish a good faith basis for eliciting the underlying facts of these lawsuits,” 125 A.D.3d at 537. As noted above, the “good faith basis” requirement encompasses both: (1) a reliable source of information and (2) that the source specify “bad acts” attributable to the particular witness. See p. 28, supra. Here, defense counsel relied on the mere “existence of the [law]suits” (A. 127-28), and the trial judge addressed only the first component, agreeing with defense counsel that a lawsuit on its face qualified as a generally reliable source of information. The -35- Appellate Division, on the other hand, addressed the second component when it stated that a “good faith basis” was lacking because “defendant did not specify any factual allegations supporting the assertion that . . . [D]etective [Rivera] had participated in false arrests.” McGhee, 125 A.D.3d at 537. Nothing the trial court said conflicts with that assessment, and the Appellate Division ruling did not involve review of the discrete issue the trial court had remarked upon in a manner favoring defendant. Accordingly, this Court may fully review the trial court’s ruling rejecting defendant’s proposed line of cross-examination. D. Defendant failed to establish a good faith basis to believe that Detective Rivera had engaged in prior bad acts relevant to his credibility. Defendant was not entitled to cross-examine Detective Rivera about “false arrest allegations” in unrelated federal lawsuits under the theory that such questions constituted permissible impeachment about prior bad acts. Defendant’s trial counsel correctly acknowledged below that a witness may not be cross-examined about “mere accusation[s],” People v. Miller, 91 N.Y.2d 372, 380 (1998), quoting People v. Morrison, 194 N.Y. 175, 178 (1909), but defendant maintains that he should have been allowed to cross-examine Detective Rivera about the “underlying facts” of the federal lawsuits (Defendant’s Brief at 34, 38). However, the tenor of counsel’s proposed inquiry about Rivera’s participation in “false arrests” of individuals who “committed no crimes” (A. 129) was not factual, but conclusory. Moreover, -36- defendant’s representations regarding the lawsuits failed to establish a good faith basis to believe that Detective Rivera personally effected or orchestrated any “false arrests.” And, defendant failed to show that the “false arrest allegations” entailed bad acts or similar misconduct that would have been probative of Rivera’s general credibility. Initially, the mere “existence” (A. 128) of federal lawsuits in which Detective Rivera was a named defendant was an insufficient basis for the requested cross- examination. At most, the existence of such lawsuits could be viewed as satisfying the first, general reliability prong of the “good faith basis” requirement, as Justice Nunez apparently believed. Even in that regard, however, lawsuits against police officers are uniquely suspect, given the motive of disgruntled defendants to seek retribution against perceived antagonists, with the added prospect of reaping a financial benefit in the form of a “nuisance” settlement even if the claim is patently without merit. In any event, such lawsuits cannot satisfy the entirety of the “good faith basis” requirement unless they contain factual allegations of specific wrongdoing by the particular witness. Here, as the trial prosecutor stated, defense counsel’s proffer regarding the federal lawsuits was entirely too “vague” (A. 128) to support any good faith claim of wrongdoing by Detective Rivera. The only information defense counsel provided about the lawsuits was that they alleged that police officers “arrested people who committed no crimes” (A. 128). Defense counsel did not specify the nature of the criminal charges or the circumstances that preceded the arrests. Nothing suggested -37- that those circumstances were similar to those that resulted in defendant’s arrest in this case – namely, a long-term narcotics investigation that entailed multiple drug buys by experienced undercover officers. Nor did defense counsel specify the basis for his conclusory assertion that the arrestees in the federal lawsuits had “committed no crimes.” The mere fact that a criminal prosecution is aborted or otherwise does not result in a conviction does not raise an inference that the defendant’s arrest could only have resulted from police misconduct; indeed, even if it were true that the arrestees in the cases defendant wanted to ask about “committed no crimes,” that would not establish that probable cause to arrest those individuals was lacking. Moreover, counsel offered no specifics at all about Detective Rivera’s supposed role in the allegedly false arrests. Significantly, counsel stated that Rivera was one of multiple police officers named as defendants in the lawsuits. Yet counsel never specified what Rivera, in particular, allegedly had done. See Thomas, 46 N.Y.2d at 105 (stating that evidence offered to show hostility was too remote where based on action against different police officer); cf. People v. Alamo, 23 N.Y.2d 630, 634-35 (1969) (finding requisite good faith basis where police provided factual information that circumstantially linked the defendant to taxicab robberies). At the same time, counsel recognized that the stipulations of settlement he had for two of the lawsuits disclaimed any acknowledgement of wrongdoing by any particular officer. As shown above, unless Rivera was alleged to have personally committed some “bad act,” no -38- good faith basis existed to cross-examine him about the “underlying facts” of the federal lawsuits. In addition, defense counsel failed to show that any “bad act” Rivera might have committed in connection with the alleged “false arrests” would have had a bearing on the detective’s credibility as a witness. See Schwartzman, 24 N.Y.2d at 244. “[T]o be relevant on the credibility issue,” prior misconduct “must have some tendency to show moral turpitude.” Badr v. Hogan, 75 N.Y.2d 629, 634 (1990). But a “false arrest” in the conventional sense of an arrest without probable cause does not necessarily entail a “bad act” at all. While an arrest without probable cause is unconstitutional, it may be the product of a good faith mistake. “[C]omplex assessments . . . go into determining the existence of probable cause.” People v. Rosario, 78 N.Y.2d 583, 590 (1991) (Titone, J., dissenting). As the Supreme Court has stated, probable cause is “a fluid concept turning on the assessment of probabilities in particular factual contexts not readily . . . reduced to a neat set of legal rules.” Maryland v. Pringle, 540 U.S. 366, 370-71 (2003). Thus, an arrest without probable cause does not inherently reflect on the officer’s trustworthiness and credibility. Instead, a prior “false arrest” has no real probative value as a “bad act” bearing on credibility unless it entailed intentional or at least reckless wrongdoing. A mere mistaken belief that the circumstances justified an arrest would not reflect moral turpitude or a willingness to advance self-interest over principle and the interest of society. See Walker, 83 N.Y.2d at 46. Here, defense counsel’s representations -39- regarding the federal lawsuits did not suggest any culpable wrongdoing by any police officer, much less by Detective Rivera personally. And nothing beyond counsel’s on- the-record representations was before the court, as defendant never offered the complaints or other supporting documents from the lawsuits for the court’s examination. Accordingly, defendant failed to establish that any role Detective Rivera may have played with respect to the arrests that gave rise to the federal lawsuits had impeachment value as a prior “bad act.” People v. Garrett, 23 N.Y.3d 878, is not to the contrary. In Garrett, the civil allegations that this Court stated “were favorable to [the] defendant” under Brady in the sense that they had “impeachment character that favored [the] defendant’s false confession theory,” id. at 886, plainly entailed intentional wrongdoing. According to those allegations, the same detective who testified at the state trial about the defendant’s confession previously had used “coercive tactics . . . to extract a confession” from a different defendant in an arson case. Moreover, Garrett emphasized that the civil allegations were “similar” to the defendant’s claim that the detective and others had “coerced him into making a false confession.” Id. at 886. Thus, rather than equate vague allegations of misconduct in an unrelated case with “bad acts” that invariably may be used to impeach a police witness, Garrett stated that the particular undisclosed allegations against the particular police officer had “impeachment character” in light of their similarity to the particular defense the criminal defendant sought to present. Id. -40- Further, contrary to defendant’s assertion, the trial court did not prevent defendant from providing more specific information. Defendant maintains that, “[b]y ruling that defense counsel had a good faith basis to ask the officer whether he had been involved in the false arrests, the trial court foreclosed defense counsel from making a more specific record regarding the detective’s involvement” (Defendant’s Brief at 40). But the court’s additional comments that the allegations from unrelated lawsuits were “irrelevant” (A. 129, 130) allowed, and even invited, additional representations by defense counsel to persuade the court otherwise. Indeed, for defense counsel to have specified alleged factual similarities would have been directly responsive to the judge’s inquiry, “how is the relevance of a defendant in another case claiming false arrest against this police officer a viable question, really?” (id.). And, the judge’s remark that the “false arrest” allegations “seem[ed]” to be irrelevant (A. 130) was sufficiently tentative to have encouraged rebuttal. Indeed, as stated, the discussion did, in fact, continue. The judge did not cut off defense counsel, who made additional comments to try to persuade her that the requested cross-examination was appropriate (see A. 130-32). But counsel said nothing that provided any additional specific information about the circumstances of, or Rivera’s alleged role in, the arrests challenged in the unrelated federal lawsuits. Thus, defense counsel failed to establish a good faith basis to believe that Detective Rivera engaged in what would fairly have been considered prior bad acts probative of his general credibility. -41- E. The trial court reasonably exercised its discretion to preclude cross- examination that risked confusion of the issues, and the ruling did not violate defendant’s constitutional right to confrontation. As the Appellate Division reasoned, defendant’s failure to establish that the allegations in the federal lawsuits provided a good faith basis to believe Detective Rivera had engaged in any prior “bad acts” also contributed to making the court’s ruling a sound exercise of discretion. The absence of a demonstrated factual connection to Rivera undermined the probative value of the proposed cross- examination, which is one component of the “balancing analysis” that governs the exercise of discretion for which such an evidentiary ruling ultimately calls. See Powell, __ N.Y.3d at __, 2016 WL 1306692, quoting Primo, 96 N.Y.2d at 356. Indeed, just as in Garrett, the probative value of the allegations in an unrelated civil lawsuit would have been “minimal.” 23 N.Y.3d at 892. At the same time, the cross-examination risked both tarnishing the trial with prejudicial innuendo and confusing the issues. Thus, the trial court’s ruling reasonably balanced the insignificant probative value of the proposed cross-examination against the significant potential for undue prejudice. See Primo, 6 N.Y.3d at 356. And because the same balancing analysis governs the constitutional right to confrontation, see Delaware v. Van Arsdall, 475 U.S. at 679, the ruling was consistent with and did not violate that constitutional right. Initially, contrary to defendant’s assertion (see Defendant’s Brief at 40, 42), the court’s ultimate ruling reflected an exercise of its discretion. As elaborated in the discussion of defendant’s LaFontaine/Concepcion claim, the prosecutor specifically -42- invoked that discretion. When the court then made its ultimate ruling “based on what has already been stated” (A. 132), it incorporated the entire preceding discussion, including the prosecutor’s arguments regarding the court’s discretion. See Nicholson, 2016 WL 633925; Walker, 83 N.Y.2d at 459 (recognizing that “the basis of the court’s decision may be inferred from the parties’ arguments”). Substantively, the court’s ruling properly reflects that defendant’s request to cross-examine Detective Rivera about the civil allegations rested on a hybrid theory of relevance. True, defense counsel asserted that he was entitled to cross-examine Detective Rivera about “prior bad and immoral acts” (A. 127). But while counsel at one point mentioned “the character and credibility of the witness” (A. 131), he additionally maintained that the cross-examination would show that police officers at times “engage[d] in conduct outside the scope of their legitimate responsibilities” (A. 131). Counsel further declared that the cross-examination was linked to the “defense” (A. 128, 130) that defendant had been “falsely arrested” (A. 128). Thus, defendant did not propose to limit the cross-examination to the issue of Detective Rivera’s general credibility, but also sought to use it in support of a claim of innocence, apparently by suggesting that Rivera had a propensity to make “false arrests.” However, defendant never disputed that the reports of the multiple undercover detectives that they purchased drugs from him provided probable cause for his arrest. Accordingly, the probative value of the prior “false arrest” allegations would have been weak at best. -43- At the same time, defendant’s expansive theory of relevance enhanced the potential for undue prejudice and confusion of the issues. Similarly to Garrett, then, the allegations from the federal lawsuits “concerned a collateral issue that was only tangentially relevant to [the] defendant’s prosecution.” 23 N.Y.3d at 892.15 As recognized in Garrett, general credibility is inherently a “collateral issue.” Id. Further, from the standpoint of defendant’s “false arrest” defense, the relevance of the unrelated civil allegations here was even more “tangential[ ],” id., than in Garrett. In Garrett, as this Court emphasized, the civil allegations were factually “similar,” id. at 887, to the defendant’s claim that the same detective had coerced him into making a false confession. Here, no such factual similarity could be gleaned from counsel’s non-specific, conclusory assertion that the federal lawsuits suggested that Rivera and other officers had participated in “false arrests” under undefined circumstances that may have been totally dissimilar from the long-term buy investigation that gave rise to the charges against defendant. Instructively, the opinion in Garrett noted that the trial court there had precluded cross-examination about other allegations of police misconduct in unrelated cases “on relevance grounds.” 23 N.Y.3d at 892; see id. at 882. This Court expressed no disapproval in that regard. Thus, notwithstanding the determination that the 15 Contrary to defendant’s assertion, that the comment was made “in the context of [the Court’s] ‘materiality’ analysis” (Defendant’s Brief at 37) does not limit its broader applicability. -44- particular undisclosed allegations that were the subject of the Brady claim had a favorable impeachment character for purposes of Brady disclosure, Garrett does not speak to the probative value of the proposed cross-examination of Detective Rivera about allegations from unrelated civil lawsuits in this factually very different case.16 On the other side of the balancing analysis, allegations of police misconduct in unrelated cases present unique challenges for the fact-finder and a troubling potential for undue prejudice and confusion of the issues. Here, when defense counsel proposed to ask Detective Rivera whether he had participated in multiple “false arrest[s]” of individuals who had “committed no crimes” (A. 129), he invoked the incendiary specter of widespread abuse of police authority. Whether deliberately or not, such questioning risked diverting the jurors’ attention to irrelevant issues. While defendant would not have had the right to introduce extrinsic evidence to refute denials from Rivera, see Schwartzmann, 24 N.Y.2d at 245, counsel could have followed up on negative responses with further inquiry that sought to change the testimony, id. at 244. As defense counsel envisioned (see A. 130), Rivera might have sought to explain the bases for the unrelated arrests. Either way, as the prosecutor 16 In People v. Hubbard, 132 A.D.3d 1013 (2d Dept. 2015), the Appellate Division determined that, unlike in Garrett, allegations that a specifically identified police witness had procured a false confession in another case were material, and the failure to disclose those allegations violated the People’s Brady obligations. The Court found “a reasonable possibility that the outcome of the trial would have differed had the evidence been produced.” Id. at 1014. Notably, the court’s analysis rested on the particular circumstances of that homicide prosecution. And, the undisclosed civil allegations did not concern supposed “false arrests.” -45- suggested below, he would then have been left with the choice of allowing prejudicial inferences of police misconduct to linger or to elicit additional information about the unrelated events on re-direct examination. Any resulting testimony about those unrelated events would have diverted the jury’s attention from the issue of defendant’s guilt or innocence in this case. Additionally, the testimony would have been difficult for the jury to evaluate; none of the federal lawsuits about which defendant sought to question Rivera had resulted in any finding of wrongdoing by the detective, and the propriety of police conduct turns on complex, often subtle, legal principles. As this Court stated in Walker, the rule generally allowing cross-examination about prior bad acts to impeach a witness’s general credibility rests on the premise that that the jury “can readily resolve,” 83 N.Y.2d at 463, whether the bad act evidence “is indicative of dishonesty or is instead the product of some other noncorrupt circumstance,” id. at 462. In Walker, this Court determined that “alias evidence [was] no different from any other factual information elicited in an effort to impeach a witness’s credibility,” because the probative worth of such evidence “may effectively be challenged through such conventional methods as explanation and rehabilitation.” Id. at 463. In stark contrast, explaining the circumstances of and reasons for unrelated arrests would be complicated and result in mini-trials of side issues that, as argued, the jury would be ill-equipped to resolve. -46- In that regard, defendant wrongly relies on People v. Allen, 50 N.Y.2d 898 (1980), affirming for reasons stated in opinion below, 67 A.D.2d 558 (2d Dept. 1979), to argue that cross-examination of Detective Rivera about the allegations in the unrelated federal lawsuits carried no significant risk of prejudice or confusion (see Defendant’s Brief at 43-44). In Allen, this Court affirmed the Appellate Division’s holding that the trial court committed error – albeit harmless – when it applied the Sandoval rule to limit the cross-examination of two prosecution witnesses about their criminal records. One sentence of the Appellation Division opinion stated, “When the witness is not the defendant, there is no danger that the jury will apply the evidence of prior acts of misconduct to anything but the witness’ credibility.” 67 A.D.2d at 560 (emphasis in the original). On that basis, defendant contends that, in this case, “the risk that the jury would improperly find [Detective Rivera] had a propensity to falsely arrest was not a consideration for the court” (Defendant’s Brief at 43). But even if technically permissible, the tenuous probative value of such a propensity argument in the circumstances of this case, as elaborated above, was outweighed by the risk of significant confusion of the issues.17 17 One of the Appellate Division cases on which defendant relies (see Defendant’s Brief at 36), People v. Jones, 193 A.D.2d 696 (2d Dept. 1993), also broadly read Allen as essentially standing for the proposition that cross-examination of a prosecution witness about conduct that may fairly be characterized as a prior bad act is not subject to any additional limitations, even under the balancing analysis that generally governs the admissibility of evidence. As argued in the text, the broad language of the Appellate Department opinion in Allen does not take into account the risk of confusion of issues -47- (Continued…) Accordingly, because it reasonably balanced the minimal probative value of the proposed cross-examination against the risk of undue prejudice and confusion of the issues, the trial court’s ruling represented a sound exercise of discretion and did not violate defendant’s right to confrontation. F. Any error would have been harmless. Even if defendant’s claim had any merit, the Appellate Division correctly found that “any error in precluding cross-examination based on the federal litigation was harmless.” 125 A.D.3d at 538. “A constitutional error is considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict.” People v. Clyde, 18 N.Y.3d 145, 153 (2011), quoting People v. Douglas, 4 N.Y.3d 777, 779 (2005). Thus, a constitutional error is harmless beyond a reasonable doubt and does not warrant reversal when (1) the unaffected presented in a case such as this one. Further, the opinion does not detail the basis for its conclusion that the defendant established a “good faith basis” for the relevant questioning and thus does not undermine the analysis in subsection D, supra, that defendant here failed to establish the requisite good faith basis for the proposed cross-examination of Rivera. Meanwhile, in People v. Daley, 9 A.D.3d 601, 602 (3d Dept. 2004), on which defendant also relies (see Defendant’s Brief at 36), the unrelated federal lawusit alleged that the testifying correction officer had assaulted another inmate. Unlike in this case, therefore, the record specified the witness’s role in the unrelated incident in a way that permitted the court to conclude that a good faith basis existed to ask the witness about the incident. Id. In addition, because the assault allegation entailed intentional wrongdoing, it more closely approximated a “bad act” probative of a lack of trustworthiness. So, too, the Appellate Division noted that the witness “was a primary accuser of [the] defendant,” id., whereas in this case, as elaborated below, see subsection F, infra, Detective Rivera was not a key witness against defendant. -48- ______________________ (…Continued) proof of guilt is overwhelming; and (2) the error did not have a causal effect on the verdict, because no reasonable possibility exists that, without the error, the jury would have acquitted the defendant. Id. Here, overwhelming proof of guilt was provided by the identification testimony of the four different undercover detectives who collectively transacted all ten of the charged sales. Detective Rivera merely “supervise[d]” (A. 169) and gave an overview of the long-term investigation into defendant’s drug-dealing, and cross-examination of that non-purchasing detective about allegations that he participated in unrelated “false arrests” scarcely would have undermined the overwhelming proof of guilt the purchasing undercover detectives provided. More particularly, the identification testimony overwhelmingly established defendant’s guilt because it was reliable, unequivocal, and significantly corroborated. One prosecution witness, UC 90, was the purchaser for six of the ten sales. A second, UC 76, made two of the buys, while UC 93 and UC 219 made one buy each. Other than on March 30, when UC 90 encountered defendant unexpectedly and then made a solo purchase, the detectives went to make the undercover buys in pairs of two. And except for the one sale for which UC 90 was accompanied by UC 213, who subsequently experienced health issues and was not called as a witness, the eight other sales collectively were witnessed by the four undercover detectives who testified at trial and who corroborated the purchasers’ testimony that they had bought drugs from defendant. Where each of the testifying undercover detectives thus observed -49- defendant make multiple sales, and UC 90 personally was a party to or witnessed all ten sales, the accuracy of the identification testimony was manifest. Significantly, the testimony showed that all the undercover detectives observed defendant under good lighting conditions and from close proximity. Invariably, defendant and the undercover detectives stood face-to-face and within touching distance of one another. Not surprisingly, the undercover detectives uniformly testified that they were “[v]ery sure” or “very” and even “[a] hundred percent” “certain” or “positive” (A. 284-85, 298, 305, 309-10, 315, 325, 420, 481, 509-10) of their in-court identifications of defendant as the seller. The unequivocal, mutually corroborating, identification testimony of multiple undercover detectives who observed defendant multiple times, face-to-face and from close range, conclusively established defendant’s guilt. Defendant’s contrary assertion that the evidence of guilt “was not overwhelming” (Defendant’s Brief at 45) rings hollow. That “there was no physical evidence linking [defendant] to a single sale” (Defendant’s Brief at 45-46) is unsurprising. The ten sales were part of a long-term investigation, where defendant was arrested long after he still might have possessed prerecorded buy money in the immediate aftermath of the sales. Further, given the danger undercover purchasers face, they could not reasonably have been expected to make “video or audio recording[s]” (id. at 46) of the transactions. And while defendant complains that the People did not test the drug packages for fingerprints (id.), nothing in the record -50- suggests that the packages would have been conducive to recovering fingerprint evidence, which in any event, would have been superfluous given the multi-faceted identification testimony the People presented at trial. Moreover, defendant’s assertion that the People’s witnesses “did not rule out the possibility of misidentification” (Defendant’s Brief at 46-47) is utterly unfounded. Defendant bases his assertion, not on the testimony of the undercover detectives who made and observed the sales, but on one paragraph of the search warrant application that Detective Rivera, the supervisor, signed, but did not draft (see id. at 47). Admittedly, that paragraph erroneously named defendant’s brother, rather than defendant, as the seller for the two transactions on November 18, 2011. But, contrary to defendant’s representation, Rivera never “admitted” that “he’d confused the two men” (id.). Instead, the detective testified that the warrant application reflected a simple “mistake” that he had “missed” (A. 220). Far more significantly than that “mistake,” the two undercover detectives who purchased drugs on November 18, 2011, both testified that they were “certain” defendant was the seller (A. 284-85, 481). Given the overwhelming proof of defendant’s guilt, no reasonable possibility exists that cross-examination of Detective Rivera about the unrelated “false arrest” allegations would have changed the outcome. As defendant states, relevant factors include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross- -51- examination otherwise permitted, and, of course, the overall strength of the prosecution’s case” (Defendant’s Brief at 47), quoting Delaware v. Van Arsdall, 475 U.S. at 684. Here, Rivera simply was not the “critical” witness defendant maintains he was (Defendant’s Brief at 27, 48). Tellingly, on summation, the prosecutor told the jurors, “The only witnesses that you need to focus on are Undercover Detectives 76, 90, 93, and 219” (A. 567). The prosecutor continued: Detective Arnaldo Rivera and Detective Martin Campos, they didn’t make any of the drug buys in this case. They didn’t identify the defendant here in the courtroom before you. They merely voucher[ed] . . . [drugs] on the individual dates that the undercovers purchased the drugs; merely links in the chain of custody” (A. 567-58). Thus, notwithstanding that Rivera, as the supervising detective, provided “a framework for the People’s case” (Defendant’s Brief at 26), his testimony did not provide important proof of defendant’s guilt. To the extent Rivera’s testimony even addressed the charged sales, it was cumulative and corroborated the four testifying undercover detectives who made and witnessed them. Nor did Rivera’s testimony become important because one of the undercover purchasers who had worked on the investigation into defendant’s drug-dealing was “unavailable to testify” (see Defendant’s Brief at 48). Notably, defendant was never charged with any of the sales to that non-testifying undercover detective. Further, when defendant asserts that Rivera was “permitted to recount [the unavailable -52- detective’s] identifications to the jury” (id.), he neglects to mention that, after defendant’s cross-examination about the mistake in the search warrant application “opened the door” to limited evidence about the uncharged sales, McGhee, 125 A.D.3d at 538 (see A. 116, 227-28), it was defense counsel, not the prosecutor, who elicited that the unavailable detective had made the earlier buys (A. 233). Further, the defense was allowed to fully cross-examine Rivera regarding the substantive circumstances of the investigation into defendant’s drug-dealing and of Rivera’s limited involvement in the charged sales. For purposes of assessing the impact of a restriction on cross-examination, “there is a difference between cross- examination which attacks a witness’ general credibility and cross-examination which seeks to elicit answers which might establish untruthfulness with respect to the specific events of the crime charged.” Allen, 67 A.D.2d at 561, aff’d, 50 N.Y.2d 898. In Allen, where this Court agreed with the Appellate Division that the error was harmless, the Appellate Division noted that the cross-examination had been “restricted in the former category only,” id. – i.e., only with respect to general credibility. Similarly, to the extent the unrelated “false arrest” allegations might have had some bearing on Detective Rivera’s general credibility, any prejudice from restricting the cross-examination was minimal. Defendant’s assertion that the cross- examination would have been “devastating” (Defendant’s Brief at 48) assumes that Rivera’s supposed “history of false arrests” (id.) would have constituted substantive proof that defendant was innocent of the charges in this case. But, even assuming -53- that Rivera played a significant role in those other arrests, nothing in the record suggests that those arrests were made under circumstances comparable to the long- term investigation out of which this prosecution arose. Just as in Garrett, the unrelated “false arrests” were only “tangentially related,” 23 N.Y.3d at 892, to the charges against defendant. Thus, any error would have been harmless and would not warrant reversal of the judgment of conviction. *** In sum, this Court may fully review the challenged ruling, which properly restricted cross-examination of Detective Rivera about “false arrest” allegations that defendant failed to show constituted prior bad acts relevant to the detective’s credibility. Further, defendant proposed to use the cross-examination to establish his substantive innocence, which raised a risk of confusion of the issues that outweighed any possible, tenuous probative value. The ruling restricting the cross-examination was a sound exercise of discretion. And, in any event, any error would have been harmless. -54- POINT II THE RECORD AMPLY SUPPORTS THE LOWER COURTS’ FINDINGS THAT THE PRETRIAL PHOTO ARRAY FROM WHICH UC 93 IDENTIFIED DEFENDANT WAS NOT UNDULY SUGGESTIVE (Answering Defendant’s Brief, Point II). At the Wade hearing, Detective Rivera testified that, on May 8, 2012, he showed UC 93 a photo array, with defendant’s photograph and the photographs of five fillers with matching physical characteristics (A. 61, 84-86, 93-94). UC 93 had accompanied UC 90, on March 13, 2012, to purchase crack cocaine from defendant. UC 93 was an experienced narcotics detective who had received specialized training, including training in making identifications (A. 76, 80). After the March 13 transaction, UC 93 had described defendant to Rivera as having one eye that was “kind of off” (A. 91, 95). However, the photo manager system that Rivera used to compile the array could not be searched for such characteristics, and Detective Rivera had “scrolled through pages of photos” and “tr[ied] [his] his best” to pick fillers who fairly resembled defendant (A. 95-96). Detective Rivera instructed UC 93 to study the photo array carefully and tell him if she recognized anyone (A. 96). After viewing the array for about a minute, UC 93 identified defendant’s photograph as that of the man who sold her crack cocaine on March 13 (A. 84-85, 96-97). The hearing court rejected defendant’s argument that the photographic identification procedure was unduly suggestive because the fillers were looking straight into the camera, while defendant was “looking off and away” (A. 97). -55- Defendant maintained that the distinction made his photograph stand out, particularly as UC 93 had described the seller as having “eye or vision issues” (A. 98). The hearing court found that the array photographs were similar in terms of facial shape, hair length and facial hair (A. 100-01). While the judge recognized that defendant, unlike the fillers, was “not looking into the camera,” she concluded that the difference in appearance was not “that noticeable when you first look at the photo array” (A. 101). Accordingly, the court found that, since the faces of the subjects were “similar in appearance,” the photo array was “fairly constituted” (A. 101). The Appellate Division unanimously upheld that finding. In particular, the court found that “defendant and the other participants were reasonably similar in appearance” and, thus, “[t]he record support[ed] the court’s finding that the photo array was not unduly suggestive.” McGhee, 125 A.D.3d at 538. The court further concluded that “[t]he difference between defendant’s photo and the other photos was not sufficient to create a substantial likelihood that defendant would be singled out for identification.” Id. Defendant now asks this Court to overturn the rulings of the suppression court and the Appellate Division. He insists that the array “unfairly singled him out,” because “only his photo featured an obvious eye condition” (Defendant’s Brief at 49). But defendant continues to exaggerate the impact that his “eye condition” had on his overall appearance. Significantly, as the lower courts concluded, the difference between defendant’s gaze and that of the fillers was not readily apparent or so -56- noticeable as to single out defendant. And UC 93, who took only about a minute to identify defendant from the array, was an experienced undercover detective. Accordingly, the record supported the lower courts’ findings that the photo array was not unduly suggestive. As a threshold matter, this Court lacks jurisdiction to review defendant’s claim. “[W]hether a photo array is unduly suggestive is a mixed question of law and fact.” People v. Holley, 26 N.Y.3d 514, 524 (2015). Thus, when the suppression court’s determination is undisturbed by the Appellate Division and is supported by the evidence in the record, that determination is beyond this Court’s review. Id., citing People v. Sanchez, 21 N.Y.3d 216, 225 (2013); see People v. McBride, 14 N.Y.3d 440, 448 (2010). While defendant faults the hearing court’s determination that the photo array was not unduly suggestive, he does not argue that the hearing court or the Appellate Division applied the wrong legal standard in making that determination. Indeed, both the hearing court and the Appellate Division found that the hearing evidence showed that the photographic identification procedure did not run the risk of making defendant unfairly stand out – and thereby applied the correct legal standard. Since the record, as elaborated below, supports those findings, the lower courts’ conclusions that the identification procedure here was proper is a mixed question of law and fact that is beyond review by this Court. A police-arranged pretrial identification procedure does not violate a defendant’s right to due process, and the resulting identification testimony is properly -57- admitted at trial “unless it is shown that the procedure was unduly suggestive.” People v. Jackson, 98 N.Y.2d 555, 558 (2002); see People v. Chipp, 75 N.Y.2d 327, 335 (1990). “The People bear the initial burden to establish a lack of any undue suggestiveness, but the defendant ‘bears the ultimate burden of proving that the procedure was unduly suggestive.’” People v. Marshall, 26 N.Y.3d 495, 506 (2015), quoting Chipp, 75 N.Y.2d at 335. Thus, a “properly conducted” photo identification procedure is generally reliable “unless it is shown that some undue suggestiveness attached to the procedure.” Chipp, 75 N.Y.2d at 335. Notably, due process does not require that the defendant be “surrounded by people nearly identical in appearance.” Chipp, 75 N.Y.2d at 335-36. Rather, pretrial identifications well be upheld as fair so long as the participants were reasonably similar in appearance and any difference “was not sufficient to create a substantial likelihood that the defendant would be singled out for identification.” Id. at 336; see McBride, 14 N.Y.3d at 447-48. Notably also, a trained undercover narcotics officer can “be expected to make careful observations of the appearance and activities of the suspect, focused all the more by the consciousness of his future need to make a detailed in-court identification.” People v. Morales, 37 N.Y.2d 262, 271 (1975); see also People v. Wharton, 74 N.Y.2d 921, 923 (1989) (discussing Morales). Thus, as the lower appellate courts of this State have remarked, “[t]he dangers of misidentification are greatly reduced when those who view the suspect are law enforcement officers trained -58- to be accurate and objective in their observations.” People v. Carter, 283 A.D.2d 514, 514 (2d Dept. 2001); accord People v. Ocasio, 241 A.D.2d 933, 934 (4th Dept. 1997), citing Morales, 37 N.Y.2d at 271; People v. Walker, 222 A.D.2d 854, 855 (3d Dept. 1995), citing Morales, 37 N.Y.2d 262. Here, as the Appellate Division correctly concluded, the photo array showed that defendant and the five fillers were “reasonably similar in appearance.” 125 A.D.3d at 538. A key similarity – which the suppression court specifically noted – was in “facial shapes” (A. 101). As an inspection of the photo array (A. 61) reveals, all six men had long oval faces, which were remarkably similar in structure. That similarity in facial shape was enhanced by the fact that, as the suppression court recognized, all six men had “close cropped hair” and “facial hair” (A. 101). In addition, as the suppression court also observed, while the skin tone of the men varied, none of the participants stood out as being significantly lighter or darker than the others (A. 101). Of course, the similarities between the photographs were not surprising. After all, Detective Rivera compiled the array by using the NYPD’s photo manager system to find photographs of men with physical characteristics that matched defendant’s (see A. 93-94). The detective explained that he “scrolled through pages of photos” on the computer and “tr[ied[] [his] best” to “pick the one[s] that look[ed] most fair” (A. 95-96). Consistent with Rivera’s objective, the array left an overall impression of similarity among the photographs that did not single out any of the subjects. -59- Contrary to defendant’s argument (Defendant’s Brief at 49, 53-54), an unspecified “condition” that affected defendant’s left eye did not make him stand out from the other array participants. The record shows that, while that condition was noticeable – and was noticed by UC 93 when defendant sold her drugs – it was not nearly as dramatic as defendant suggests. As related by Detective Rivera on cross- examination at the hearing, all UC 93 said about the condition was that the seller had “one eye that’s kind of off” (A. 91). Rivera did not describe the condition in his own words, and simply agreed with defense counsel that defendant had “some eye issues” and “might be cross-eyed or dead-eyed or something along those lines” (A. 95). The prosecutor disputed that characterization in his post-hearing argument, flatly stating that “defendant is not cross-eyed” (A. 99). In short, the record hardly bears out defendant’s claim that his eye condition significantly affected his overall appearance, so that the police needed to locate fillers with “similar eye condition[s]” or to take unusual “ameliorat[ive]” steps (Defendant’s Brief at 49) such as using a black marker, white-out or a piece of paper to cover the left eye in each photograph (see Defendant’s Brief at 54, 55). Indeed, the hearing court noted only a slight difference between defendant’s appearance and that of the fillers. In that regard, the judge acknowledged that “the photo of the defendant shows him not looking into the camera while all the others are looking into the camera” (A. 101). The judge added, however, that the difference was not “that noticeable” upon first glance (A. 101). And, in fact, the difference is subtle. -60- As it happens, defendant’s head is slightly tilted to the side, and his gaze is directed upwards and to his left (see A. 61). Given the position of defendant’s head, it is not readily apparent that a condition in defendant’s left eye, rather than the slight tilt of defendant’s head, was responsible for the direction of defendant’s gaze. Indeed, defendant’s right eye also appears to be looking off to the left side. Thus, the lower courts properly determined that the subtle difference in defendant’s gaze did not render the photo array unduly suggestive. That is especially true since the photo identification was made by a trained, experienced undercover detective who was aware from the time she met defendant on the day of the sale that a crime was imminent and that it was part of her job to subsequently identify the seller. This Court’s precedent recognizes the unique nature of undercover narcotics purchases by specially trained undercover officers. As this Court held in Wharton, 74 N.Y.2d at 922-23, the notice and hearing provisions of CPL 710.30 do not apply where a police-arranged identification is merely confirmatory, that is, made “at a place and time sufficiently connected and contemporaneous to the arrest . . . as to constitute the ordinary and proper completion of an integral police procedure.” The rationale is that, where “an experienced undercover officer observed the defendant face-to-face during a planned buy-and-bust operation,” knowing that she would be expected to later make an identification, “no risk of misidentification” exists. People v. Boyer, 6 N.Y.3d 427, 432 (2006). -61- Although the motion court determined that UC 93’s photographic identification of defendant “was not sufficiently contemporaneous with the drug purchase to be deemed confirmatory” (Decision on Omnibus Motion, A. 56), it remains that experienced undercover narcotics detectives are uniquely attuned to the need to make later accurate identifications of the sellers. After all, regardless of when UC 93 identified defendant, her “participation” in the Lincoln Houses investigation was “planned,” and she was “expected to observe [defendant] carefully . . . for purposes of later identification.” Wharton, 74 N.Y.2d at 923. Accordingly, given the nature of her duties and her special training and experience in the field of narcotics, UC 93 would have been less susceptible than other witnesses to having her later identification influenced by any subtle differences among the photographs in the array. Defendant cites a number of lower court decisions in support of his argument that the photo array was unduly suggestive (Defendant’s Brief at 52-54). Not only are those decisions not binding on this Court but they are factually distinguishable. Most significantly, those cases involved civilian witnesses who unexpectedly became crime victims and were not experienced in identifying perpetrators. Such witnesses would be more susceptible to any suggestiveness in a pretrial identification procedure than would the experienced undercover detective who identified defendant from the photo array in this case. -62- Further, in People v. Perry, 133 A.D.3d 410 (1st Dept. 2015), lv. denied, 2016 NY LEXIS 614 (Feb. 3, 2016), and People v. Tatum, 129 Misc. 2d 196 (Sup. Ct. Queens Co. 1985), on which defendant heavily relies (see Defendant’s Brief at 52, 54- 55), the difference in appearance evidently was much starker than the subtle difference reflected in the photo array here. In Perry, the Appellate Division stated that the photo array was unduly suggestive because the defendant alone had a “deformed” right eye that appeared to be sunken into his head. 133 A.D.3d at 410. Similarly, the defendant in Tatum had a glass eye that the court described as a “distinctive facial deformity,” 129 Misc. 2d at 196, rendering him “grossly dissimilar [in] appearance,” id. at 204, from the fillers in the lineup. By contrast, as elaborated above, defendant’s unspecified “eye condition” appeared subtle in the photograph shown in the array. And, the slight difference in gaze between defendant and the fillers appeared attributable to the fact that defendant’s head was tilted slightly to the side. In any event, any error in the suppression ruling was harmless in light of the overwhelming evidence establishing defendant’s identity as the seller from whom UC 93 purchased crack cocaine on March 13. At trial, UC 93 testified that she was “[a] hundred percent positive” that defendant was the man who sold her the drugs (A. 509-10). Notably, UC 93 saw defendant that day for an extended period, from the time they met in front of the building through the time defendant escorted her inside to a ground-floor staircase and sold her the drugs in a hand-to-hand transaction. The -63- lighting was good, and UC 93 stood face-to-face with and close to defendant. Those excellent viewing conditions strongly supported UC 93’s unequivocal in-court identification of defendant as the seller. Further, on the day of the sale, UC 93 was accompanied by UC 90, who by then already had made three purchases of drugs from defendant and had witnessed her companion detectives make three more (on November 18, 2011; February 1, 2012; and March 9, 2012). Having observed defendant make those six prior sales, UC 90 confirmed and corroborated UC 93’s testimony that defendant sold her crack cocaine on March 13. Thus, UC 93 gave convincing in-court identification testimony that could not have been attributable to the prior photo identification, and that testimony was corroborated by UC 90, who was thoroughly familiar with defendant. The proof that defendant sold UC 93 crack cocaine on March 13 was overwhelming, and nothing about the photo identification procedure cast doubt on that overwhelming proof. By the same token, as elaborated in Point I(F), supra, the evidence overwhelmingly established defendant’s guilt of all ten sales of which the jury convicted him. Defendant’s assertion that the convictions on the eight other sales “may have been a result of spillover prejudice” (Defendant’s Brief at 57) is thoroughly negated by that overwhelming proof. In sum, the record amply supports the lower courts’ findings that the photo array was not unduly suggestive. Accordingly, defendant’s claims to the contrary are beyond this Court’s review. -64- POINT III DEFENDANT WAS PROPERLY SENTENCED AS A SECOND FELONY DRUG OFFENDER PREVIOUSLY CONVICTED OF A VIOLENT FELONY (Answering Defendant’s Brief, Point III). Defendant was sentenced pursuant to Penal Law § 70.70(4) as a second felony drug offender whose prior conviction was a violent felony, based upon a 2003 conviction for Criminal Possession of a Weapon in the Third Degree under former Penal Law § 265.02(4). At the time, defendant did not dispute that adjudication (A. 626); as defendant concedes, when he was convicted in 2003, Penal Law § 265.02(4) was classified as a violent felony offense. Defendant now protests, as he did before the Appellate Division, that his prior conviction no longer was listed as a violent felony when he committed or was sentenced for the ten sales in this case, and that his enhanced sentence thus was unlawful. However, not only was third-degree weapon possession under former Penal Law § 265.02(4) classified as a violent felony when defendant incurred that conviction, but the same crime was later reclassified as the more serious offense of Criminal Possession of a Weapon in the Second Degree, which remained a violent felony offense when defendant was sentenced in this case. Accordingly, the Appellate Division properly determined that defendant’s prior conviction under former Penal Law § 265.02(4) qualified as a violent felony offense for sentence enhancement purposes; the result comports with the statutory language -65- and intent, and did not deny defendant fair notice of the authorized sentence enhancement. “[T]he Legislature created Penal Law § 70.70 to mandate enhanced sentences for second felony drug offenders.” People v. Yusuf, 19 N.Y.3d 314, 320 (2012). Penal Law § 70.70(3) “sets out the enhanced sentencing range for those second felony drug offenders previously convicted of a non-violent felony,” and Penal Law § 70.70(4) sets forth “a harsher sentencing range for those second felony drug offenders previously convicted of a violent felony.” Id. at 319. As set forth in Penal Law § 70.70(4)(a), that harsher enhanced sentencing range applies to “a second felony drug offender whose prior felony conviction was a violent felony” (emphasis added). But defendant notes that “the statutory provisions defining what is and what is not a violent felony use[ ] the present tense” (Defendant’s Brief at 64), and contends that “[a] prior felony cannot enhance a defendant’s sentence unless [it] is specifically listed as a violent felony in Penal Law § 70.02(1)” (id. at 60) when the enhanced sentence is imposed (id. at 58). Defendant’s argument is unavailing. When presented with a question of statutory interpretation, a court’s “primary consideration is to ascertain and give effect to the intention of the Legislature.” People v. Jones, 2016 N.Y. LEXIS 201 at *3-4, 2016 NY Slip Op. 01208 at *2 (Feb. 18, 2016) (citations and internal quotation marks omitted); accord People v. Middlebrooks, 25 N.Y.3d 516, 523 (2015). To that end, “[w]hen the statutory language is clear and unambiguous, it should be construed so as to give effect to the -66- plain meaning of the words used.” Jones, 2016 N.Y. LEXIS 201 at *4 (citation and internal quotation marks omitted); accord Middlebrooks, 25 N.Y.3d at 523. Where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences, a court may examine the statute’s legislative history and the circumstances surrounding its passage. People v. Barnes, 26 N.Y.3d 986, 989-90 (2015); Matter of Shannon, 25 N.Y.3d 345, 351 (2015). So, too, a statute “must be construed as a whole and . . . its various sections must be considered together and with reference to each other.” Matter of Shannon, 25 N.Y.3d at 351 (citation and internal quotation marks omitted); see McKinney’s Cons. Laws of N.Y., Book 1, Statutes § 98(a) (“All parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof”). Given these standards of construction, the Appellate Division correctly concluded that defendant’s conviction for third-degree weapon possession under former Penal Law § 265.02(4) qualified as a prior violent felony for sentence enhancement purposes. While former Penal Law § 265.02(4) no longer was listed as a violent felony offense in Penal Law § 70.02(1)(c) when the enhanced sentence in this case was imposed, the latter provision must be read not in isolation, as defendant would have it, but in conjunction with other pertinent provisions. Those provisions include Penal Law § 70.02(1)(b), which as elaborated below lists the successor statute to former Penal Law § 265.02(4) as a violent felony offense. And they also include -67- Penal Law § 70.70(4)(a), which, as noted, provides enhanced sentencing for a second felony drug offender “whose prior felony conviction was a violent felony” (emphasis added). Considered together, the relevant provisions authorized the court to impose an enhanced sentence based on defendant’s conviction under former Penal Law § 265.02(4). Further, to the extent any ambiguity exists, those provisions must be read against the backdrop of the pertinent legislative history, which confirms that the enhanced sentence defendant received comports with the legislative intent. By way of background, in 2006, the Legislature amended article 265 of the Penal Law to repeal subdivision (4) of Section 265.02, under which defendant was convicted of Criminal Possession of a Weapon in the Third Degree, which was a Class D felony, and to replace it with Penal Law § 265.03(3), Criminal Possession of a Weapon in the Second Degree. People v. Jones, 22 N.Y.3d 53, 58 (2013); People v. Feliciano, 108 A.D.3d 880, 882 (3d Dept. 2013). As defined in former Penal Law § 265.02(4), “[a] person [was] guilty of criminal possession of a weapon in the third degree when . . . [s]uch person possesse[d] any loaded firearm,” unless “such possession t[ook] place in such person’s home or place of business.” At the same time that the 2006 amendments repealed that provision, they provided that “a person is guilty of criminal possession of a weapon in the second degree when such person possesses any loaded firearm,” unless “such possession takes place in such person’s home or place of business” (emphasis added). See 2006 McKinney’s Session Laws of N.Y., ch. 742 (S. 8467) (emphasis added). That provision was codified, and remains -68- codified, in new subdivision (3) of Penal Law § 265.03, which now makes possession of a loaded firearm outside one’s home or business the Class C felony of second- degree criminal possession of a weapon.18 Imposing an enhanced sentence based on a prior conviction under former Penal Law § 265.02(4), as the court did in this case, comports with the plain language of Penal Law § 70.70(4)(a). Again, that provision states that the enhanced sentencing range used in this case applies to a second felony drug offender “whose prior felony conviction was a violent felony” (emphasis added). Third-degree weapon possession under Penal Law § 265.02(4) was classified as a Class D violent felony offense in 2003, when defendant was convicted of that crime. See former Penal Law 70.02(1)(c). Accordingly, under the plain language of Penal Law § 70.70(4)(a), the crime qualified as a prior violent felony for purposes of enhanced sentencing. Instructively, in People v. Walker, 81 N.Y.2d 661 (1993), which dealt with another recidivist sentencing statute, this Court concluded that comparable language showed that the Legislature intended to look to the time of the prior crime when considering whether that crime qualified as a predicate violent felony. In Walker, the defendant had been convicted in 1984 of grand larceny, a class E felony, for stealing property worth more than $250 but less than $1,000, at a time when grand larceny was 18 Previously, possession of a loaded firearm had to “be paired with the intent to use the firearm unlawfully against another to constitute criminal possession of a weapon in the second degree.” Senate Introducer’s Mem. in Support, Bill Jacket, L. 2006, ch. 742 (S.B. 8467) (RA: 000003). -69- defined as theft of property valued in excess of $250. 81 N.Y.2d at 663. After the grand larceny statute was amended to increase the minimum to $1,000, Walker was convicted of felony drug possession charges, and the People sought to have him adjudicated a second felony offender. Id. The sentencing court declined, reasoning that the conduct for which the defendant was sentenced as a felon in 1984 “would constitute only a misdemeanor under existing law.” Id. This Court disagreed. As this Court noted, a recidivist sentencing statute “of necessity addresses past events – previous criminal acts.” 81 N.Y.2d at 665. Further, this Court reasoned, “A retrospectivity, inherent in [the statute’s goal of deterring recidivism by repeat offenders], is evident in the language of the statute: to be deemed a predicate felony conviction ‘[t]he conviction must have been in this state of a felony’” (quoting Penal Law § 70.06[1][b][i] [emphasis added by Walker]). 81 N.Y.2d at 665. This Court elaborated that that language signaled the Legislature’s “intent to look to the time of the prior crime – and the law at that time – when considering whether the prior crime is a predicate felony for second felony offender purposes.” Id. Here, similarly to the language of the recidivist sentencing statute at issue in Walker, the word “was” in Penal Law § 70.70(4)(a) also shows that the Legislature intended the sentencing court to look backward “to the time of the prior crime – and the law at that time,” Walker, 81 N.Y.2d at 665, to assess the prior conviction’s status. Thus, as in Walker, the statutory language requires a “retrospective[e]” approach -70- under which a predicate conviction’s status should be determined as of the time the crime was committed, not when the enhanced sentence is imposed.19 The Appellate Division has applied Walker’s reasoning in several cases upholding the defendant’s adjudication as a predicate violent felony offender on the basis of a prior conviction under former Penal Law § 265.02(4). For example, in Bowens, 120 A.D.3d 1148, the Appellate Division held that the defendant had properly been adjudicated a second violent felony offender. Citing Walker, the Appellate Division reasoned that the defendant’s predicate felony was “classified as a violent felony at the time of that conviction.” 120 A.D.3d at 1149. Similarly, in Thomas, 122 A.D.3d 489, the Appellate Division held that the defendant had been properly adjudicated a second violent felony offender, stating that third-degree weapon possession under former Penal Law 265.02(4) “was a violent felony at the time of [the defendant’s 2000] conviction” [citing Walker]); see also People v. Santos, 96 A.D.3d 624 (1st Dept. 2012) (citing Walker in holding that the sentencing court properly adjudicated the defendant a persistent violent felony offender). 19 Indeed, defendant’s position is even less tenable than the failed claim in Walker. There, after all, the defendant’s predicate crime had been reclassified as a misdemeanor. Here, by contrast, the Legislature took no such ameliorative action: possession of a loaded weapon outside one’s home or place of business was no less a violent felony when the enhanced sentence in this case was imposed than when defendant committed and was convicted of that prior crime. The criminal conduct simply has a new section number and a more serious classification. -71- Conspicuously, defendant totally fails to acknowledge this Court’s decision in Walker. Instead, defendant insists that the Legislature used the word “was” in Penal Law § 70.70(4)(a) merely for “grammatical consistency” (Defendant’s Brief at 64). As defendant sees it, a prior conviction necessarily “happened in the past,” and, thus, “it would have been incongruous to use the present tense” (Defendant’s Brief at 64-65). But that reasoning is at odds with Walker, where this Court stated both that the enhanced sentencing provision necessarily addressed “previous criminal acts” and that the requirement that the prior conviction “must have been” of a felony evidenced a “retrospectivity” on the part of the Legislature in classifying the prior crime. 81 N.Y.2d at 665. Similarly to what this Court concluded in Walker, the word “was” in Penal Law § 70.70(4)(a) connotes that the Legislature intended a retrospective analysis of whether a second felony drug offender’s prior crime constituted a violent felony offense. Id. Walker also refutes defendant’s assertion that the enhanced sentence in this case is anomalous because a conviction under former Penal Law § 265.02(4) would not enhance a defendant’s sentence under Penal Law § 70.04(1)(a), the second violent felony offender statute, or Penal Law § 70.08(1)(a), the persistent violent felony offender statute (Defendant’s Brief at 65-66). Defendant asserts that neither of those other recidivist sentencing provisions “use[s] the past tense” (Defendant’s Brief at 66). But defendant’s argument ignores that other subdivisions of those sections use or incorporate backward-looking language. Indeed, Penal Law § 70.04(1)(b), which -72- Penal Law § 70.08(1)(b) references, uses the same backward-looking language – “must have been” – as did the decisive provision in Walker. Thus, under the reasoning of Walker, and contrary to defendant’s argument, a prior conviction under former Penal Law § 265.02(4) would subject a defendant to enhanced sentencing under both the second violent felony offender and persistent violent felony offender statutes. Moreover, even if the use of the present tense in the provisions relied on by defendant created any ambiguity regarding the use of the past tense in Penal Law § 70.70(4), the enhanced sentence in this case accords with the legislative history. As previously elaborated, the 2006 amendments elevated the possession of a loaded firearm outside one’s home or place of business from a Class D violent felony to a Class C violent felony. Senate Introducer’s Mem. in Support, Bill Jacket, L. 2006, ch. 742 (S.B. 8467); People v. Brown, 21 N.Y.3d 739, 745 (2013). Consistent with that scheme, in 2007, the Legislature amended Penal Law § 70.02(1)(c) by removing Penal Law § 265.02(4) from the list of Class D violent felony offenses. 2007 McKinney’s Session Laws of N.Y., ch. 7, § 32. (RA: 000023). Contrary to defendant’s intimation (Defendant’s Brief at 61), then, the Legislature did not “specifically delist[ ]” Penal Law § 265.02(4) because it had determined that possession of a loaded firearm outside one’s home or place of business no longer should be considered a violent felony offense. Instead, the change reflected that the conduct had been reclassified as second-degree weapon possession under Penal Law § 265.03(3) and, as such, was included as a Class C violent felony offense under Penal Law § 70.02(1)(b). -73- In other words, defendant wrongly contends that the failure to separately include now-repealed subdivision (4) of Penal Law § 265.02 in Penal Law 70.02’s list of violent felony offenses “may have been a drafting oversight” (Defendant’s Brief at 61), which the Appellate Division improperly sought to rectify (see id. at 64, 66-69). Instead, because the covered conduct became a Class C violent felony under Penal Law § 70.02(1)(b), continued inclusion of former Penal Law § 265.02(4) on the list of Class D violent felonies would have been confusing and redundant. Furthermore, the purpose of the 2006 amendment was “to toughen punishment for gun crimes,” Brown, 21 N.Y.3d at 752, and thereby protect the people of New York from the scourge of gun violence. As the Legislature concluded in enacting Penal Law § 265.03(3), “[b]y elevating the penalty for possession of an illegal firearm, and ensuring those found guilty face jail time instead of probation, this bill will take an important step toward ridding New York’s streets of illegal guns.” Senate Introducer’s Mem. in Support, Bill Jacket, L. 2006, ch. 742 (S.B. 8467) (RA: 000004). Defendant’s insistence that the 2006 amendment reduced the sentencing impact of his prior weapon possession conviction runs counter to the legislative purpose to treat gun violence more, not less, seriously. So, too, since Penal Law § 265.03(3) now contains the same elements – possession of a loaded firearm outside one’s home or place of business – as former Penal Law § 265.02(4), the inclusion of the replacement provision on the list of Class C violent felonies in Penal Law 70.02(1)(b) encompasses defendant’s prior criminal -74- conduct. In that sense, defendant’s prior weapon possession conviction actually is defined as a violent felony in Penal Law § 70.02(1) as that provision read when the enhanced sentence in this case was imposed. See Thomas, 122 A.D.3d at 489 (former Penal Law § 265.02[4] “has been recodified as the more serious offense of criminal possession of a weapon in the second degree [Penal Law § 265.03(3)]), which remained a violent felony offense at the time of defendant’s second violent felony offender adjudication”) (citations and internal punctuation omitted); Bowens, 120 A.D.3d at 1148 (third-degree weapon possession pursuant to former Penal Law § 265.02[4] remained a violent felony at the time of defendant’s second violent felony offender adjudication, albeit as the result of a recodification); People v. Pedro, 1026- 15, NYLJ 1202751529152 at *4 (County Ct., Westchester County Feb. 11, 2016) (Penal Law § 70.02 “‘defines” th[e] conduct [of possessing a loaded firearm outside one’s home or place of business] as a violent felony”). Next, defendant wrongly contends that he did not have “fair notice” that his 2003 conviction for third-degree weapon possession would subject him to enhanced sentencing (Defendant’s Brief at 62-63). Of course, a defendant is entitled to fair warning of the potential punishment for his crimes. See Penal Law § 1.05(2); People v. Morse, 62 N.Y.2d 205, 216-17 (1984). But contrary to his insistence, defendant received fair notice that his prior conviction qualified as a violent felony for sentence enhancement purposes. As previously stated, and as defendant acknowledges (Defendant’s Brief at 61), in 2003, third-degree weapon possession under former -75- Penal Law § 265.02[4] was included on the list of Class D violent felony offenses in former Penal Law Section § 70.02(1)(c). Thus, defendant was on notice from the time he was convicted of that predicate crime that it could subject him to enhanced punishment on any future conviction. This Court’s decision in Morse, 62 N.Y.2d 205, is not to the contrary (see Defendant’s Brief at 62-63). In Morse, the predicate crimes were not classified as violent felony offenses when committed, but were subsequently so classified. 62 N.Y.2d at 213-14, 217. This Court held that those crimes should be considered prior violent felonies for purposes of the enhanced sentencing provisions of the second and persistent violent felony offender statutes. Id. at 217-18. As the Court reasoned, [S]o long as the elements of the crime when committed were the same as those of an offense now defined as a violent felony offense . . . , the offender has been given fair warning of the nature of the conduct proscribed in advance of his or her commission of the present offense and at the time of its commission has fair warning of the sentence authorized as a result of the prior offense upon conviction. Id. at 217. Defendant asserts that Morse establishes that “[f]air notice for recidivist sentencing purposes is assessed at the time of the commission of the crime upon which the enhanced sentence is imposed” (Defendant’s Brief at 62). But, in Morse, that was the only possible reference point as of which the defendant could have had fair notice. That this Court held that such notice sufficed does not mean that earlier notice could not alternatively have provided sufficient warning. Certainly, Morse does -76- not say that pre-existing notice, such as existed here, may not be deemed to continue. Although defendant here may not have been aware that the Legislature reclassified his prior criminal conduct, the resulting changes in the statute did nothing to vitiate the fair notice he already had, pursuant to the original classification in effect at the time of the prior conviction, that the conduct could be considered a violent felony offense in the future for sentence enhancement purposes. In addition, similarly to Morse, the elements of defendant’s prior weapon possession conviction were the same as those of a crime, Penal Law § 265.03(3), which was defined as a violent felony offense at the time of the enhanced sentencing in this case. See Penal Law § 70.02(1)(b). On that basis as well, defendant had fair notice of the authorized enhanced sentence. Finally, defendant’s reliance on the Appellate Division decision in People v. Lynes, 106 A.D.3d 433 (1st Dept.), lv. denied, 21 N.Y.3d 1075 (2013) (Defendant’s Brief at 60) is misplaced. In Lynes, the Appellate Division held that the defendant had been improperly sentenced as a second felony drug offender with a prior conviction for a violent felony, where the crime the People had designated as the prior violent felony was second-degree murder, which was not included among the violent felony offenses listed in Penal Law § 70.02(1). Unlike here, however, the absence of the offense from the list was not attributable to a reclassification of the crime. Instead, second-degree murder curiously never had been designated as a violent felony offense. Nor were the elements of second-degree murder the same as -77- those of another offense that was classified as a violent felony. Those differences make Lynes inapplicable to this case. In sum, defendant was properly sentenced as a second felony drug offender previously convicted of a violent felony. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SYLVIA WERTHEIMER Assistant District Attorney PATRICK J. HYNES SYLVIA WERTHEIMER SHEILA O’SHEA Assistant District Attorneys Of Counsel April 8, 2016 -78- ADDENDUM CHAPTER 7lfz- LAWS OF 20 Dil SENATE Bill... _(=-'1--=-='::.--7 __ ASSEMBLY Bill... ___ _ STATE OF NEW YORK 8467 IN SENATE June 22, 2006 Introduced by Sens. GOLDEN, PADAVAN, VOLKER, MALTESE, ALESI, BALBONI, BONACIC, BRUNO, DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, HANNON, JOHNSON, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MARCELLINO, MARCHI, MAZIARZ, MEIER, MORAHAN, NOZZOLIO, RATH, ROBACH, SALAND, SEWARD, SKELOS, SPANO, TRUNZO, WINNER, WRIGHT, YOUNG -- read twice and ordered printed, and when printed to be corrmitted to the Committee on Rules AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm DATE RECEIVED BY GOVERNOR: ACTION MUST BE TAKEN BY: ·-. : .. lOtio DATE GOVERNOR'S ACTION TAKEN: 000001 SENATE VOTE y N DATE ______________ __ ASSEMBLY VOTE DATE y N HOME RULE MESSAGE _ Y _ N 000002 RETRIEVE BILL BIL~_J'!!~;ER:_ 88467 SPONSOR: GOLDEN NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1 TITLE OF BILL: An act to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm ~UR_POSE: To elevate the possession of a single illegal loaded firearm to a class C felony SUMMARY OF PROVISIONS: Section 1 of the bill repeals subdivision 4 of section 26502 of the penal law which makes it a class D felony to possess a loaded firearm except when such possession takes place in a person's home or place of business. Section 2 of the bill amends section 265,,02 of the penal law defining the class C felony of criminal possession of a weapon 2nd degree, to remove the intent element that is currently necessary for possession of a loaded firearm to constitute such crime. EXISTING ~'joj": currently, under section 265.03 of the Penal Law, possession of one loaded firearm must be paired with the intent to use the firearm unlaw- fully against another to constitute criminal possession of a weapon in the second degree, a class C felony. Under current law section 265.02 of the penal law possession of an ille- gal loaded firearm without the intent to use the same against another is a class D felony f?r which a sentence of probation may be imposed ,;JY§'!'_IFICATION: According to the federal Bureau of Justice Statistics, approximately 60% of the homicides that occur in the City of New York are committed with guns, many of which are illegal The Department of Criminal Justice Services estimates there are 2 million unregistered handguns in New York City and that 96% of illegal guns recovered in New York City originated out-of-state" Under currant law, an individual must possess 3 or more illegal handguns to face felony charges This bill makes possession of one illegal loaded handgun a class C felony, sending a clear message that the people of New York will not tolerate violence perpetuated by illegal weapons, 000003 http://nyslrs.state.ny.us/NYSLBDCI/bstfrme.cgi Page 2 of3 6/27/2006 RETRIEVE BILL An article which appeared in the Albany Times Union in 2004 illustrates the problem this bill is trying to address, "In 2003, 16,493 firearms were seized by police statewide, Most had been used in crimes" Still, only 57 people were charged with criminal sale of a firearm; 33 were convicted," (Jordan Carleo-Evangelist, October 17, 2004) illegal guns continue to plague Dill streets, yet those who possess or sell them often escape meaningful punishment By elevating the penalty for possession of an illegal firearm, and ensuring those found guilty face jail time instead of probation, this bill will take an important step toward ridding New York's streets of illegal guns, LEGISLATIVE H;_J:STQRY: New bill FISCAL_IMPLI~T~ONS: None, None, ~FFECT_IVE __ DATE ; This act shall take effect on the first November next succeeding the date on which it shall have become law, ·---··- ------··. _, ·- .·-·- -·-······-------------··· .. ' . . . --·--·---·"······--·· .. -· .... ·-·· ·····~··--···········-····. http:/ /nyslrs.state.ny. us/NYSLBDC 1/bstfrme.cgi 000004 Page 3 of3 6/27/2006 B-203 SENATE: No. 58467 BUDGET REPORT ON BILLS NO RECOMMENDATION Senator Golden Session Year 2006 ASSEMBLY: No. Title: AN ACT to amend the penal law. in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm The above bill has been referred to the Division of the Budget for comment. This bill would repeal subdivision 4 of section 265.02 of the Penal Law which stipulates that it is a Class D felony to possess a loaded firearm except when the possession of such weapon takes place in an individual's home or place of business. In addition, this bill amends section 265.02 of the penal law by removing the "intent to use" provision which is necessary to constitute the possession of a loaded firearm as a Class C felony. The effect of these provisions would be to elevate criminal possession of a single firearm from a Class D felony to a Class C felony. After careful review, we find that the bill has no appreciable effect on State finances or programs. We therefore make no recommendation. Validatiurt Dacument ID: 89346!-462 John F. Cape. Uirector NYS Division of the Budget By Susan E. Knapp Date: 9/13/200610:28:00 AM 000005 ELIOT SPITZER Attorney General TO: FROM: DATE: RE: STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL MEMORANDUM Richard Platkin Counsel to the Governor Kathy Bennett Chief, Legislative Bureau August 1, 2006 8.8467 Legislative Bureau You have asked for our comments on the above-referenced bill which has passed both houses of the Legislature. This bill amends Penal Law§ 265.02 to increase the penalty for possession of an unlicensed, loaded firearm without intent to use it. Such conduct would become a class C felony. The legislation exempts possession that occurs at the person's home or place of business. Currently, a person who possesses a loaded. illegal firearm at a place other than his or her home or business is guilty of a class D felony. See Penal Law§ 265.02. If it is possessed anywhere with intent to use it, it is a class C felony. ld. § 265.03. We agree that the penalty for possessing a loaded, illegal gun should be increased. However, while importing the current exemption for home/office possession into the new provision of Penal Law §265.03, the Legislature also deleted the crime of possession of a loaded, illegal firearm, no matter where the weapon is located. The result is that an individual who possesses a loaded illegal weapon in his or her home or business with intent to commit a crime will be guilty only of a class A misdemeanor {under Penal Law §265.01 {1 )) rather than, as now, a class C felony. We have been told that this is an unintended flaw in the bill. Nonetheless, we have significant concerns about the impact of the legislation, because it would 000006 significantly reduce the penalties that can be imposed on perpetrators of domestic violence who intend to use loaded, illegal firearms to further harm those they victimize. At the same time, we recognize that the other provisions of the bill increase potential criminal sanctions in important ways. Accordingly. we recommend that this legislation not be approved unless both houses of the legislature commit to closing the flaw relating to in-home possession of illegal weapons as soon as possible. KAB The CapitOl, Albany, N.Y. 12224-0341 • Phone (518} 486-3000 • Fax (518) 474-4290 http://www.oag.stale.ny.us nnooo7 STATE OF NEW YORK DIVISION OF CRIMINAL JUSTICE SERVICES Honorable Richard Platkin Counsel to the Governor Executive Chamber State Capitol - Room 225 Albany, NY 12224 Dear Mr. Platkin: September 5, 2006 Via E-mail RE: Senate Bill Number 8467 Recommend Approval This is in response to your request for comment on the above-referenced bill which amends sections 265.02 and 265.03 of the Penal Law to provide that the illegal possession of any loaded firearm shall constitute the crime of Criminal Possession of a Weapon in the Second Degree, a class C violent felony. This bill repeals existing subdivision (4) of Penal Law §265.02, Criminal Possession of a Weapon in the Third Degree, which makes it a class D violent felony to possess a loaded firearm except for possession in one's own home or place of business. A simiJar provision of Criminal Possession of a Weapon in the Second Degree, a class C violent felony, which prohibits the possession of a loaded firearm with an intent to use the firearm unlawfully, is repealed and replaced with a provision which penalizes the possession of any loaded firearm regardless of any intent to use such firearm, except where the possession of the firearm takes place in the possessor's home or place of business. This amendment was made in order to ensure that a person possessing a loaded fireann is guilty of a crime for which a determinate sentence of imprisonment is required. It should be noted that the exception which now will be contained in Penal Law §265.03, i.e., that it is not a violation of that section oflaw to possess a loaded weapon in one's own home or place ofbusiness, may lead to an unintended consequence. For example, under current law a person in possession of a loaded firearm in his or her own home who intended to use such firearm to harm another would be guilty of Criminal Possession of a Weapon in the Second Degree, a class C violent felony. Under this bill such person would only be guilty of Criminal Possession of a Weapon in the Fourth Degree, a class A misdemeanor, which penalizes the mere illegal possession of a firearm, 000008 loaded or unloaded. While the Division recognizes the slight chance that this bill may subject a domestic abuser to a lower sentence for possessing an illegal loaded ftreann, the positive effects of this bill will greatly outweigh this potential negative consequence. This bill can greatly enhance public safety by ensuring appropriate sentences for criminals who carry illegal loaded guns. Previously, a person found to possess an illegal loaded firearm had been able to escape a State prison sentence because of the difficulty of proving that such person intended to use the firearm unlawfully. If the People were unable to prove intent, the possessor of the illegal loaded gun would only be guilty of Criminal Possession of a Weapon in the Third Degree, a class D violent felony, for which a sentence as low as one year in a local jail is authorized. This bill raises the lowest penalty for mere possession of a loaded ftrearm to a determinate sentence of at least 3 ~ years in a State prison. While this proposal would not affect the Division's operations, for the reasons noted above, it is worthy of support as part of the Governor's effort to address gun violence by providing increased penalties for gun crimes. Accordingly, the Division of Criminal Justice Services recommends approval of S. 8467. Thank you for the opportunity to comment on this legislation. Very truly yours, Gina L. Bianchi Deputy Commissioner and Counsel 800009 Memorandum NEW YORK STATE POliCE To: Honorable Richard Platkin Counsel to the Governor From: Glenn Valle August 29, 2006 Counsel to the Division of State Police Subject: S8467 AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm POSITION: The Division of State Police has no objection to this legislation. 000010 .--------------------------------- QUEENS DA Fax: 718-286-6360 Oct 18 2006 16:44 P.02 10/ie/2008 tB:28 FAX 6458365057 li! 002{002 atsutUt-AIC'&' ""'ID A.IIUJD'!l\', m SN$$AUCOI.INTY n.»~-v' ,~.-,ew ~ora. .IQAIII) Oi'IIOII!lC'lOIIS CHAII'.I'D!DIII oJJI&(.ll: J.. CIAli.K Ell.le~ 'ftiiii.IDICS II. MDIIl N..l~COUN'I'Y IIU-'I'.oiDIIUOH • .I)NX COliM'iY ca•a,.,. MOLLBI'I JIII,OOMii~ •JA'Mtlla.v~ t:I>YWAC'OUMr'Y lA~--a~ OliHI>DIII«Ull0 IL JIIEAL1/" •I•VNJ! CCJUH'IY J.VIt:-T -.oiUI "' f.sn::HESl'Slt. COUNtY Re~ S8467/AI2042- Dear Govem.or Pataki: I I write o• behalf of the Dbtriet Attol'lleJI of New York State to urge you to ad q111cldy to sip the above--referenced bW U.law. This important Jegi&Jatloa wou.W raise possession of a loadtd 1lrurm outdde the home or place ofbasiDesJ from the clio D violeut felony of Crimiaal Puaeadoa of a Weapon in the Tllb"d Degree to the C 'Violeat feloay of Crim.ba.al Possession of • Weapoa in the Soeoad Degree. Combined wltll the lqJislatloa that you edpcd at the ead of but year, thi• bill gives pi'Oiecaton stroDg and eft'ec*e tools to combat tbe serious problem of illegal g&lll ia New Y ol'IL As police aad prosecutors put theat new laws to goud ase, we )lope to create an •'¥iroDDI.mt •here criminals will find it mudlmore diffie.walt to obtabl IUDB and mam riskier to ca.ny them. TheN laws will help reduee IUD -violence aod better protect aU New Yorken. We Ufle you to take immediate aetioD to sigD. tllU biD so that it wtJl take effect ou NoveDlb« 1, 2006. ~~~ Michael E. Boopomo Presideo.t 1 SOUTH MAIN STR:BET, S™ FLOOR NBWClTY,NY 109.$6 TPT 'll"c:\ IIC:2• o;nJ, .,.(v (1!11(\.-;•ur...;ll:n~? 000011 Hon. George E. Pataki Governor of the State ofNew York Executive Chamber Albany, New York 12224 Dear Governor Pataki: THE CITY OF NEW YoRK OFFICE OF THE MAYOR NEW YORK, N.Y. 10007 August 29,2006 S.8467- by Senator Golden AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm APPROVAL RECOMMENDED The above-referenced bill is now before you for executive action. This legislation amends Section 265.03 of the penal law, making a person who illegally possesses any loaded firearm guilty of criminal possession of a weapon in the second degree, regardless of intent. Criminal possession of a weapon in the second degree is a class C violent felony. Additionally, it repeals subdivision 4 of section 265.02 of the penal law. Currently, a person who possesses a loaded fireann is guilty of criminal possession of a weapon in the third degree. The minimum penalty for criminal possession of a weapon in the third degree is one year, unless the judge finds that certain exceptional circumstances apply. However, the actual imposed penalty is frequently under the one-year minimum. The 2004 statistics for New York City show that 33% of those convicted of some form of criminal possession of a weapon in the third degree received less than the 1-year minimum sentence required by law: 15% of convicts were incarcerated for less than one year, while 18% were sentenced to no prison time. Gun criminals pose a unique threat to public safety. People convicted of criminal possession of a weapon in the third degree in New York City are more likely to recidivate violently than non-firearm felons-42% compared to 25%. In fact, they are four times as likely as other felons to be arrested for a homicide. With that in mind, it is clear that the current law poses an unacceptable risk to the public. This bill helps limit that risk by increasing the penalty for possession of a loaded illegal handgun to a minimum of 3 Yz years-no exceptions. 000012 Hon. George E. Pataki August 29,2006 Page two S.8467 This change will help prevent crime and save lives here in New York City and across the State. Accordingly, I respectfully urge approval of this bill, which is part of the City's 2006 Legislative Program. Very truly yours, MICHAEL R BLOOMBERG, Mayor By: Michelle L. Goldstein Legislative Representative 000013 Hon. George E. Pataki Governor of the State ofNew York Executive Chamber Albany, New York 12224 Dear Governor Pataki: THE CITY OF NEW YORK OFFICE OF THE MAYOR NEW YORK, N.Y. 10007 October 19,2006 S.8467- by Senator Golden AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm APPROVAL RECOMMENDED The above-referenced bill is now before you for executive action. This legislation amends Section 265.03 of the pena1law, making a person who illegally possesses any loaded firearm guilty of criminal possession of a weapon in the second degree, regardless of intent. Criminal possession of a weapon in the second degree is a class C violent felony. Additionally, it repeals subdivision 4 of section 265.02 of the penal law. Currently, a person who possesses a loaded firearm is guilty of criminal possession of a weapon in the third degree. The minimum penalty for criminal possession of a weapon in the third degree is one year, unless the judge finds that certain exceptional circumstances apply. However, the actual imposed penalty is frequently under the one-year minimum. The 2004 statistics for New York City show that 33% of those convicted of some form of criminal possession of a weapon in the third degree received less than the 1-year minimum sentence required by law: 15% of convicts were incarcerated for less than one year, while 18% were sentenced to no prison time. Gun criminals pose a unique threat to public safety. People convicted of criminal possession of a weapon in the third degree in New York City are more likely to recidivate violently than non-firearm felons-42% compared to 25%. In fact, they are four times as likely as other felons to be arrested for a homicide. With that in mind, it is clear that the current law poses an unacceptable risk to the public. This bill helps limit that risk by increasing the penalty for possession of a loaded illegal handgun to a minimum of 3% years-no exceptions. OOOQ-14 Hon. George E. Patak.i October 19, 2006 Page two S.8467 Subsequent to the passage of this historic legislation, an unintended consequence was discovered regarding the penalty for possession of a loaded firearm in one's home or business. After careful review and discussion with th~ District Attorneys, we believe that this drafting error should be rectified when the Legislature is back in session, but that the potential consequences of its existence are extremely minor and should in no way postpone the effective date of this bill, with its significant public safety benefits, from being signed into law by November 1st. This change will help prevent crime and save lives here in New York City and across the State. Accordingly, I respectfully urge approval of this bill, which is part of the City's 2006 Legislative Program. Very truly yours, MICHAEL R. BLOOMBERG, Mayor By: Michelle L. Goldstein Legislative Representative 000015 700 600 500 0 0 400 0 Estimates of Potential Use of the Home-or-Place-of-Business Exception for Cases Currently Charged as PL 265.03(2) (Top Charge Only) ·-· .. --.. -·-..... -..... -.... - ..... _ ........ ----·--............ _ ................ , .... _______ , ____ .. ____ ----·----·---·----------·---·-----·-1 ~ ' ~ e r~l .L- ~dieted O"l 300 ! · ·. A . ../'.'"'.;ti\•1 on.;cted . -i ... ~ . . . : : : . .. . :- ; :. .. . . ..... / ····.·· · in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm APPROVALRECO~DED The abQve-referenced bill is now before you for executive action. This legislation amends Section 265.03 of the penal law, making a person who illegally possesses any loaded firearm guilty of criminal possession of a weapon in the second degree, regardless of intent. Criminal possession of a weapon in the second degree is a class C violent felony. Additionally, it repeals subdivision 4 of section 265.02 of the penal law. Currently, a person who possesses a loaded firearm is guilty of criminal possession of a weapon in the third degree_ The minimum penalty for criminal possession of a weapon in the third degree is one year, unless the judge finds that certain exceptional circumstances apply. However, the actual imposed penalty is frequently under the one-year minimum. The 2004 statistics for New York City show that 33% of those convicted of some form of criminal possession of a weapon in the third degree received less than the 1-year minimum sentence required by law: 15% of convicts were incarcerated for less than one year, while 18% were sentenced to no prison time. Gun criminals pose a unique threat to public safety. People convicted of criminal possession of a weapon in the third degree in New Yotk City are more likely to recidivate violently than non-firearm felons--42% compared to 25%. In fact, they are four times as likely as other felons to be auested for a homicide. With that in mind, it is clear that the current law poses an unacceptable risk to the public. This bill helps limit that risk by increasing the penalty for possession of a loaded illegal handgun to a minimwn of 3 V. years-no exceptions. 000017 OCT-19-2006 11:01 Hon. George E. Pataki October 19,2006 Page two STATE LEGISLATIVE 1 212 788 1497 P.03 S.S467 Subsequent to the passage of this historic legislation, an unintended consequence was discovered regarding the penalty for possession of a loaded fireann in one's home or business. After careful review and discussion with the District Attorneys, we believe that this drafting error should be rectified when the Legislature is back in session, but that the potential consequences of its existence are extremely minor and should in no way postpone the effective date of this bill, with its significant public safety benefits, from being signed into law by November 1st. This change wj ll help prevent crime and save lives here in New York City and across the State. Accordingly, I respectfully urge approval of this bill, which is part of the City's 2006 Legislative Program. Very truly youxs, MJCHAEL R. BLOOMBERG, Mayor By: Michelle L. Goldstein Legislative Representative 000018 TOTAL P.03 ..------------- Hon. George E. Pataki Governor of the State ofNew York Executive Chamber Albany, New York 12224 Dear Governor Pataki: I THE CITY OF NEW YORK OFFICE OF THE MAYOR NEw YORK, N.Y. 10007 August 29, 2006 S.8467 ~by Senator Golden AN ACT to amend the penal law, in relation to possession of a loaded fireann and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm APPROVAL RECOMMENDED The above-referenced bill is now before you for executive action. This legislation amends Section 265.03 of the penal law, making a person who illegally possesses any loaded firearm guilty of criminal possession of a weapon in the second degree, regardless of intent. Criminal possession of a weapon in the second degree is a class C violent felony. Additionally, it repeals subdivision 4 of section 265.02 of the penal law. Currently, a person who possesses a loaded firearm is guilty of criminal possession of a weapon in the third degree. The minimum penalty for criminal possession of a weapon in the third degree is one year, unless the judge finds that certain exceptional circumstances apply. However, the actual imposed penalty is frequently under the one-year minimum. The 2004 statistics for New York City show that 33% of those convicted of some form of criminal possession of a weapon in the third degree received less than the 1-year minimum sentence required by law: 15% of convicts were incarcerated for Jess than one year, while 18% were sentenced to no prison time. Gun criminals pose a unique threat to public safety. People convicted of criminal possession of a weapon in the third degree in New York City are more likely to recidivate violently than non-firearm felons-42% compared to 25%. In fact, they are four times as likely as other felons to be arrested for a homicide. With that in mind, it is clear that the current law poses an unacceptable risk to the public. This bill helps limit that risk by increasing the penalty for possession of a loaded illegal handgun to a minimum of 3 Vz years-no exceptions. 000019 Hon. George E. Pataki August 29, 2006 Page two S.8467 This change will help prevent crime and save lives here in New York City and across the State. Accordingly, I respectfulJy urge approval of this bill, which is part of the City's 2006 Legislative Program. Very truly yours, MICHAEL R. BLOOMBERG, Mayor By: Michelle L. Goldstein Legislative Representative 000020 Memorandum NEW YORK STATE POLICE To: From: Subject: Honorable Richard Platkin Counsel to the Governor Glenn Valle August29,2006 Counsel to the Division of State Police S8467 AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm POSITION: The Division of State Police has no objection to this legislation. 000021 RETRIEVE BILL Page 1 of3 STATE OF NEW YORK 8467 IN SENATE June 22, 2006 Introduced by Sens. GOLDEN, PADAVAN, VOLKER, MALTESE, ALESI, BALBONI, BONACIC, BRUNO, DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, HANNON, JOHNSON, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MARCELLINO, MARCHI, MAZIARZ, MEIER, MORAHAN, NOZZOLIO, RATH, ROBACH, SALAND, SEWARD, SKELOS, SPANO, TRUNZO, WINNER, WRIGHT, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the penal law, in relation to possession of a loaded firearm and to repeal subdivision 4 of section 265.02 of such law relating to possession of a loaded firearm The_R~o:e!_~ 9.f...the S_tat~f _!'l_ew___Xor!.t. ~~ese11t~d_!_I1.Senat.e~d __ A~~em_: b__!y, do ergt.c~ __ as_follo_w~_;_ 1 Section 1. Subdivision 4 of section 265.02 of the penal law is 2 REPEALED. 3 § 2. Section 265.03 of the penal law, as amended by chapter 764 of the 4 laws of 2005, is amended to read as follows: 5 § 265.03 Criminal possession of a weapon in the second degree. 6 A person is guilty of criminal possession of a weapon in the second 7 degree when: 8 (1) with intent to use the same unlawfully against another, such 9 person: 10 (a) possesses a machine-gun; or 11 {b} [p~&e&aaaa • l~aaaa £i5aa-.; &5 12 ~] possesses a disguised gun; or 13 (2} such person possesses five or more firearms~ or 14 Cll ... s_3.1ch .. ~.rson 2ossess'!!~ a,~ l,_Q.a,d~d :f:ir;earm. __ Such__pe lS ~h [I TS tS Jf n a a >f n d d e Y: d e a 2007 REGULAR SESSION Ch. 7, § 32 6. A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time; and 7. A plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation; and (b) in the case of any armed felony, as defined in subdivision forty-one of section 1.20, states that such offense is an armed felony and specifies the particular implement the defendant or defendants possessed, were armed with, used or displayed or, in the case of an implement displayed, specifies what the implement appeared to be; and (c) in the case of any hate crime, as defined in section 485.05 ofthe penal law, specifies, as applicable, that the defendant or defendants intentionally selected the person against whom the. offense was committed or intended to be committed; or intentionally committed the aqt or 'acts constituting the offense, in whole or in substantial part because of a belief or perception regarding the race,. color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of.a person; and · · (d), in the q.ase of a crime of terrorism, as defined in section 490.25 of the p~nal law, specifies, as 'applicable, thdt the defendant or defendants acted with intent to: intiniidlite or coerce a civilian population, influence the policy of a unit of government by. intiinidation or coerCion! ~r affect,the· conduct of a unit of ~overnment by mqrder,, as~,assinatio?· or kidnappmg; and · · . · · · · (e) in the case of a &exually motivated felony,, as defined in section \30,91 of th~ ,penal law, ~sserts facts supporting the allegation thatthe offense was sexually motivated; and. 8 .. The signature ofsthe foreman·or acting. foreman of the grand jury, except where the indictrrlent has been ordered reduced pursuant to. subdivision one-a of section 210.20 of this chapter or the accusatory instrument is a superior court information; and . .. 9,, ,! The ·signature oUhe dis~riqtattorney. '§ ~32.'.., Paragraphs ·(c) and' {d) of. subdivision 1 of section 70.02 of the ·penal law, paragraph (c)'as amended by chapter '110 of the laws of 2006, and paragraph (dtas separately amended by chapters 764 and 765 of the laws of 2005, are amerided'toread as follows: '(c)'l@ass'·nrmolent'felony offenses:· an attempt to commit any of the class C:felonies. set forth in})atagraph (b); reckless'~sault ofa child as defined in section 120.02, assault in the second degree as defined in section 120.05, menacing a police officer or: peace officer' as definegi~ sectii)!L1~Q.18, stltlk].~g in the [rrst degree, as defin~d in subdivision one.ghection .12Q.60,,rape in ,the second degree.as defined in section 130.30, criminal sexual ,act.in the second degree as defined. in section 130.45, sexual ~bl.,lSe in the frrst degree as dejjned in section 130.65, course of sexual conduct against a child in the sec<;md degree as defined in .sectio!X 130.80,·.aggt'avate.d sexual' abuse in the third degree as defined in section 130.66, facilitatiiig 'W.s~x offeii~e' 'with a controlled substance. as defined· in section, 130.90, crim~nal possession 'Of'a weapon in the third· degree as defined in subdivision fum;. five, six; seven or eight of, section 265.02; crintinal sale of a frrearm in the third,degree as defined in section 265.11,, intimidating a victim! or,wi~ness in the second degree as defined. in section 215)6, soli@.ting or providing ·Suppm:t for .ran. act of terrorism in the· second ·degree as defined in section 490.10, and making a terroristic threat as defined in section 490.20, falsely reporting an~inci~~m~, ii} thr .[~sr~r dr~ee as defined .in sec~i~I1. 2,40.60, plac_ing a .false bomb or haza,rdous ~u~staf\Ce 1n thgJi,H~~ tlegte~Jts .. defineq m sectwn 240.62, placmg a false bomb or hazardous ~~bstance i~, .~. ~#~tts pt~diuiri '(jl7 arena, ma~s transportation faqility or enclosed shopping mall as defined 'in section 2~0.63; and aggravated unpermitted use of indoor pyrotechnics in the first degree 'as definea in section 405~18: ··, ~q)'Class',~,vi'9l~nt f~16nY ... offef\&eS': .an &ttenipt to ·commit. any of the felonies ofcriiri~11al p6ssession or 'a weapon in the th:ird degree as defined in subdivision fum;. five, six, seven or eight of section 265:02 as a lesser included offense of that section as defined in section 220.20 o'f~~e-~rirninalprQ~edqr~Jaw,persistentsexual ab'use as defined in section 130:53, aggravated sexual·abuse.in the:fourtli de~tt:ee as·definedin section 130.65-a,. falsely reporting an incident MdUions are indicated by 'underline; deletions by skikeoot;. vetoes by shading 133 000023