The People, Respondent,v.Isma McGhee, Also Known as Izzy, Appellant.BriefN.Y.June 1, 2016APL-2015-00243 To be argued by MARK W. ZENO Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ISMA MCGHEE, ALSO KNOWN AS IZZY, Defendant-Appellant. DEFENDANT-APPELLANT’S REPLY BRIEF ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 Wall Street New York, NY 10005 Tel: (212) 577-2523 ext. 505 Fax: (212) 577-2535 mzeno@cfal.org MARK W. ZENO CENTER FOR APPELLATE LITIGATION Of Counsel ANGELA ZHU SIDLEY AUSTIN LLP Pro Bono Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 POINT I Because (A) the Court Erroneously Forbid Defense Counsel from Cross-Examining Detective Rivera About His Involvement in False Arrests on the Grounds that those Questions Would Have Been “Irrelevant,” the Appellate Division Was Without Jurisdiction to Affirm on the Alternate Ground that Defense Counsel Had Not Demonstrated a Good Faith Basis for that Questioning; and (B) the Court Did Not Limit the Questioning as an Exercise of Discretion, this Court Cannot Affirm that Ruling as an Exercise of Discretion; and (C) In Any Event, Precluding Questioning on the Alternate Grounds Reached by the Appellate Division or Proposed Here Would Violate Appellant’s Rights to Due Process and to Cross- Examine and Confront Witnesses (in Reply to Point I of Respondent’s Brief).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Respondent’s defenses of the trial court’s ruling are procedurally barred: the trial court’s ruling that forbid defense counsel from questioning the detective about whether he had been involved in prior false arrests can only be affirmed if this Court agrees that the questions would have been “irrelevant”. . . . . . 6 1. Because the LaFontaine rule prohibits this Court from reviewing issues not decided adversely to appellant, and supreme court forbid cross-examination on the sole ground that the false arrests were “irrelevant,” this Court may not affirm on the ground that defense counsel lacked a good faith basis to ask the detective about the false arrests, and the First Department was wrong to have affirmed for that reason. People v. LaFontaine, 92 N.Y.2d 740 (1998). . . . . . . . . . . . . . . . . . . . . . . 6 i 2. Because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera with his prior involvement in false arrests, the court’s ruling cannot be affirmed as an appropriate exercise of discretion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. Respondent is wrong on the merits: defense counsel had a good faith basis for questioning the detective about his involvement in prior false arrests, and it was constitutional error to completely forbid that questioning. . . . . . . . . . . . . . . . . . . . 14 POINT II BECAUSE THE MOST PROMINENT FEATURE OF UC 93’S DESCRIPTION OF THE SELLER WAS THAT HE HAD ONE EYE THAT WAS “KIND OF OFF,” AND APPELLANT’S PHOTO WAS THE ONLY ONE IN THE ARRAY — ADMINISTERED TWO MONTHS AFTER THE SALE — DISPLAYING A NOTICEABLE EYE CONDITION, THE ARRAY WAS UNDULY SUGGESTIVE BECAUSE IT SINGLED OUT APPELLANT FOR IDENTIFICATION. US CONST. AMEND. XIV; NY CONST. ART. I, § 6 (IN REPLY TO POINT II OF RESPONDENT’S BRIEF). . . . . . . . . . . . . . . . . 19 POINT III APPELLANT WAS INCORRECTLY SENTENCED AS A SECOND FELONY DRUG OFFENDER WHOSE PRIOR CONVICTION WAS A VIOLENT FELONY BASED ON HIS EARLIER CONVICTION FOR CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE BECAUSE, AT THE TIME HE COMMITTED THIS OFFENSE, PENAL LAW § 265.02(4) WAS NO LONGER A VIOLENT FELONY (IN REPLY TO POINT III OF RESPONDENT’S BRIEF). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ii TABLE OF AUTHORITIES Cases Coggins v Buonora, 776 F.3d 108 (2d Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Court. People v. Chipp, 75 N.Y.2d 327 (1990). . . . . . . . . . . . . . . . . . . . . . . . 3, 20, 21 F.C.C. v. Fox Television Stations, Inc., _ U. S. _, 132 S.Ct. 2307 (2012).. . . . . . . . 24 Delgado v. City of New York, 86 A.D.3d 502 (1st Dep’t 2011). . . . . . . . . . . . . . . 18 Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007). . . . . . . . . . . . . . . . . . . . . 16 People v. Alamo, 23 N.Y.2d 630 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Boyer, 6 N.Y.3d 427 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Coleman, 56 N.Y.2d 269 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Delamota, 18 N.Y.3d 107 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Dickman, 42 N.Y.2d 294 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Gee, 99 N.Y.2d 158 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Holley, 26 N.Y.3d 514 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Ingram, 18 N.Y.3d 948, 949 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. LaFontaine, 92 N.Y.2d 740 (1998).. . . . . . . . . . . . . . . . . . . . . . 1, 5, 6, 7, 8, 9, 10 People v. Morse, 62 N.Y.2d 205 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28 People v. Newball, 76 N.Y.2d 587 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Nicholson, 26 N.Y.3d 813, 2016 WL 633926 (Feb. 18, 2016). . . . . . . . . . 8 iii People v. Owens, 74 N.Y.2d 677 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Smith, 18 N.Y.3d 588 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Walker, 83 N.Y.2d 455 (1994). . . . . . . . . . . . . . . . . . . . . . . . . 16, 25, 26, 27 Scotto v. Almenas, 143 F.3d 105 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statutes CPL § 470.15(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25 Fed.R.Civ.P. 11(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Penal Law § 1.05(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 28 Penal Law § 10(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Penal Law § 70.02(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 23, 24, 27, 28 Penal Law § 70.06(1)(b)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Penal Law § 70.70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 Penal Law § 70.70(1)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Penal Law § 155.30(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27 Penal Law § 265.02(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 19, 23, 27, 28 iv SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION - FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ISMA McGHEE, also known as IZZY, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief (RB), received by this office on April 8, 2011. INTRODUCTION Appellant argued in Point I of his opening brief (AB), that it was constitutional error to prohibit defense counsel from impeaching Detective Arnaldo Rivera by cross-examining him about his involvement in three false arrests. Counsel had a good faith reason to believe that Rivera had participated in the false arrests because they became the subject of federal lawsuits against him and other named officers. Detective Rivera not only led and supervised the year- long investigation into appellant’s alleged crack-selling operation, but he was also the People’s lead witness. Although the Constitution permits reasonable limits on cross-examination, the trial court’s blanket prohibition against any inquiry into the 1 false arrests was unlawful. The court’s conclusion that the resulting evidence would have been “irrelevant” was legally wrong: had Rivera falsely arrested one or more persons before, those admissions would have had a legitimate bearing on the jurors’ assessment of his credibility. Respondent does not defend the court’s conclusion that the false-arrest inquiry was irrelevant, arguing instead, as the Appellate Division ruled, that defense counsel had failed to establish a good faith basis for it. As discussed in Point I(A) below, the Appellate Division was without the jurisdiction to have affirmed on the ground that defense counsel lacked a good faith basis to ask the detective about his involvement in the false arrests, and this Court may not affirm on any ground other than that the inquiry would have been irrelevant. CPL § 470.15(1). Alternatively, as discussed in Point I(B), below, respondent’s good-faith-basis argument is wrong on the merits: defense counsel had a good faith basis for questioning Detective Rivera about his involvement in prior false arrests, and it was constitutional error to completely forbid that questioning. In Point II of his opening brief, appellant argued that an undercover’s identification of appellant from a photo array was unduly suggestive in violation due process. The most prominent feature of the undercover’s description of the man who had sold crack to her two months before the array was shown to her was that the seller had “one eye that’s kind of off.” Appellant argued that, because 2 appellant’s photo was the only one in the array to meet that description — i.e., only his photo featured an obvious eye condition — the array unfairly singled him out as the suspect. Because the police made no effort to ameliorate the aspect of appellant’s appearance that made his photo stand out from the others, the array was unduly suggestive. Respondent concedes that appellant’s photo was the only one in the array with a “noticeable” eye condition, but defends the hearing court’s determination that the array was fair enough because the eye condition was “not ‘that noticeable’ upon first glance” (RB: 60). By respondent’s reckoning, the hearing court’s conclusion presents a mixed question beyond this Court’s power to review. As set forth in Point II, below, because appellant’s photo was the only one in the array with an noticeable eye condition, the array singled him out for identification, and was unduly suggestive as a matter of law, and reviewable by this Court. People v. Chipp, 75 N.Y.2d 327, 336 (1990). Finally, in Point III of his opening brief, appellant argued that he was unlawfully sentenced as a second felony drug offender whose prior conviction was a violent felony: at the time he allegedly committed these drug offenses, his prior conviction for criminal possession of a weapon in the third degree—Penal Law § 265.02(4)— was no longer designated a violent felony by Penal Law § 70.02(1). Respondent concedes that Penal Law § 265.02(4) was no longer a designated 3 violent felony when appellant was alleged to have committed the drug offenses. But respondent insists that whether or not a conviction qualifies as a predicate for future enhancement is measured by the nature of the predicate conviction at the time of its commission, not at the time of the commission of the subsequent crime susceptible to sentence enhancement. As discussed in Point III, below, the question is one of fair notice: because the second felony drug offender sentencing statute imports Penal Law § 70.02(1)’s exclusive list of violent felonies, and criminal possession of a weapon in the third degree under Penal Law § 265.02(4) was not a listed violent felony when appellant was alleged to have committed the drug offenses in 2010 and 2011, appellant did not have fair notice of the sentence enhancement he would face for having committed a violent felony, and could not lawfully have been sentenced as a second felony drug offender whose prior conviction was a violent felony. 4 REPLY ARGUMENT POINT I BECAUSE (A) THE COURT ERRONEOUSLY FORBID DEFENSE COUNSEL FROM CROSS-EXAMINING DETECTIVE RIVERA ABOUT HIS INVOLVEMENT IN FALSE ARRESTS ON THE GROUNDS THAT THOSE QUESTIONS WOULD HAVE BEEN “IRRELEVANT,” THE APPELLATE DIVISION WAS WITHOUT JURISDICTION TO AFFIRM ON THE ALTERNATE GROUND THAT DEFENSE COUNSEL HAD NOT DEMONSTRATED A GOOD FAITH BASIS FOR THAT QUESTIONING; AND (B) THE COURT DID NOT LIMIT THE QUESTIONING AS AN EXERCISE OF DISCRETION, THIS COURT CANNOT AFFIRM THAT RULING AS AN EXERCISE OF DISCRETION; AND (C) IN ANY EVENT, PRECLUDING QUESTIONING ON THE ALTERNATE GROUNDS REACHED BY THE APPELLATE DIVISION OR PROPOSED HERE WOULD VIOLATE APPELLANT’S RIGHTS TO DUE PROCESS AND TO CROSS-EXAMINE AND CONFRONT WITNESSES (IN REPLY TO POINT I OF RESPONDENT’S BRIEF). The trial court forbade defense counsel from questioning Detective Rivera about his involvement in prior false arrests on the sole ground that the questions—and the answers those questions would yield—would have been irrelevant. As discussed in subpoint A, only that issue is reviewable by this Court. The Appellate Division was, and this Court is, jurisdictionally barred from considering any other reason for precluding the false-arrest questioning. As set forth in subpoint A(1), because the LaFontaine rule barred the Appellate Division from affirming on any ground not decided adversely to appellant, that court was wrong to find that the trial court’s ruling was correct on the alternate ground that counsel lacked a good faith basis to ask Detective Rivera about his involvement in 5 false arrests. LaFontaine likewise bars this Court from affirming the preclusion of questioning on that basis, or that it would have been an appropriate exercise of discretion. Additionally, as set forth in subpoint A(2), because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera with his prior involvement in false arrests, the court’s ruling cannot be affirmed as an exercise of discretion. As discussed in subpoint B, even if this Court is not procedurally barred from reaching respondent’s alternate justifications for denying defense counsel the opportunity to cross-examine Detective Rivera, those justifications fail, because defense counsel demonstrated a good faith basis for questions about Rivera’s involvement in the false arrests. A. Respondent’s defenses of the trial court’s ruling are procedurally barred: the trial court’s ruling that forbade defense counsel from questioning the detective about whether he had been involved in prior false arrests can only be affirmed if this Court agrees that the questions would have been “irrelevant.” 1. Because the LaFontaine rule prohibits this Court from reviewing issues not decided adversely to appellant, and supreme court forbade cross-examination on the sole ground that the false arrests were “irrelevant,” this Court may not affirm on the ground that defense counsel lacked a good faith basis to ask the detective about the false arrests, and the First Department was wrong to have affirmed for that reason. People v. LaFontaine, 92 N.Y.2d 740 (1998). Ruling on defense counsel’s request to cross-examine Detective Rivera about his involvement in three false arrests, supreme court agreed that federal false-arrest lawsuits naming the detective in each instance provided a “good faith 6 basis” for counsel to ask him whether he had been involved in the false arrests. Notwithstanding that finding, the court concluded that the topic was “irrelevant,” and forbid any cross-examination on the issue (A 198-99). Appellant argued in his opening brief that, because the court precluded cross-examination about the false arrests on the grounds that the inquiry would be “irrelevant,” this Court may not affirm on the grounds that the questioning was improper for any alternate reason, and the Appellate Division was wrong when it affirmed on issues not decided adversely to appellant (Appellant’s Brief (AB) at Point (I)(B)(2), pp. 38-40). Respondent concedes that supreme court expressly ruled that defense counsel had established a good faith basis for questioning the detective about the false arrests, and that the Appellate Division found that defense counsel had not established a good faith basis for the questioning (RB: 35). Respondent even cites to People v. Nicholson, this Court’s most recent discussion of LaFontaine’s reviewability limitations, where the Court reaffirmed LaFontaine’s central prohibition that an appellate court cannot render a decision “on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant’s favor.” People v. Nicholson, 26 N.Y.3d 813, 2016 WL 633926 (Feb. 18, 2016). Yet respondent insists that the Appellate Division’s ruling that “[d]efendant failed to establish a good faith basis for eliciting the underlying facts of these 7 lawsuits” (A.5-6) does not contradict supreme court’s express finding that defense counsel had a “good faith basis” for the questioning (RB: 35-36). By respondent’s reckoning, although supreme court found that appellant had a good faith basis for the false-arrest questions, it used the term “in a different sense than the Appellate Division” when it found that defense counsel had not established a good faith basis for the questions (RB: 35). According to respondent, the good-faith-basis concept includes both a reliability component and a specificity component. While the trial court’s ruling considered only the reliability component, the Appellate Division’s usage included both (RB: 35). By respondent’s lights, supreme court was wrong when it found a good faith basis and the Appellate Division was right when it found no good faith basis. LaFontaine does not apply, respondent’s argument goes, because supreme court’s legally incorrect conclusion was based upon an incomplete and flawed analysis of what constitutes a good faith basis. Even if respondent’s breakout of the good-faith-basis standard were correct, it is difficult to follow how this analysis helps respondent, because it is at odds with the essence of the LaFontaine rule, which prohibited the Appellate Division from affirming on any ground decided in appellant’s favor. If, as respondent contends, the trial court erroneously found that defense counsel had a good faith basis for asking about the false arrests without considering the specificity of counsel’s information, then the Appellate Division was powerless to rule that defense 8 counsel did not have a good faith basis because counsel’s information was not sufficiently specific. Respondent contends, in essence, that the Appellate Division was empowered to rule on an issue that the trial court did not address. It would not only be directly contrary to LaFontaine to permit an affirmance on an issue not reached by the trial court, People v. Ingram, 18 N.Y.3d 948, 949 (2012), but it would also be unfair. Once counsel specified the questions he intended to ask, neither the court nor the prosecutor challenged the specificity of counsel’s good faith basis, and counsel had no reason to further demonstrate the specificity of his information. Had the prosecutor made the argument he makes here, i.e., that there was no good faith basis because he did not specify factual allegations that this detective participated in the false arrests (RB: 36), then defense counsel would have had reason and an opportunity to be more specific. Because the court expressly stated that counsel had a good faith basis, there was no reason to say more. In another effort to avoid LaFontaine’s reviewability limitations, respondent alternately contends that, even though the court expressly ruled that any questions about the detective’s involvement in false arrests were “irrelevant,” subsequent “additional discussion” on the issue broadened the trial court’s ruling. Respondent is wrong for at least two reasons. First, respondent confuses the preservation requirement, which permits review of only those issues that have been raised by a 9 party in the trial court, with LaFontaine’s limitations, which permit review of only those issues decided adversely to the appealing party by the court. While both preservation and LaFontaine-reviewability rules limit this Court’s authority, they are distinct concepts. By arguing that the court had “discretion” to limit cross- examination, the prosecutor preserved his challenge on that ground. But this Court may only review preserved issues that were decided adversely to appellant by the lower court. And the court never suggested that it was forbidding the false-arrest inquiry as an exercise of its discretion. The only ruling adverse to appellant was that counsel’s inquiry into the detective’s prior involvement in false arrests would have been irrelevant, and that is the only ruling that may be reviewed. Second, and more fundamentally, the record does not support respondent’s contention that the court’s “ultimate ruling” encompassed the merits arguments it now raises on this appeal. The court initially precluded the questioning on relevance grounds and never moved from that ruling. When defense counsel announced that he wanted to question the detective about his involvement in the false arrests, the prosecutor argued that the issue had been “sprung” on him, and that defense counsel’s application was vague. The court responded by asking defense counsel what “specifically” he intended to ask the detective. Defense counsel explained that he wasn’t going to ask the detective whether he’d been named in the lawsuits. Instead, he would ask the detective whether he had been 10 “involved in the arrest of the named plaintiff, if such an arrest took place on the dates that were alleged,” whether the named persons “committed no crimes,” and whether the detective “participated in a false arrest” (A: 128). Accepting counsel’s response to its specificity concerns, the court responded that those questions were nonetheless “irrelevant to this case” (id.). The court ruled that, although counsel had a good faith basis for asking the questions, the questions were “irrelevant” because “nothing had been proven” that the detective had made any false arrests (A: 199). Nothing that followed broadened the court’s relevance ruling, which the court tied to whether there had been a finding against the detective. Responding to the court’s ruling, defense counsel argued that the subject was relevant because there was a direct link between the evidence that the detective may have falsely arrested others and appellant’s defense that he had not engaged in any drug sales. The prosecutor responded that the court had the “discretion” to decide whether or not to allow the questioning, comparing the line of questioning to asking the detective when “he stop[ped] beating” his “wife.” The prosecutor stressed that there was no finding on the underlying issue that was unfavorable to the detective because two of the three lawsuits had been settled without an admission of wrongdoing (A: 131). Defense counsel then pointed out that two of the cases had been settled for $30,000 and $75,000 respectively. The prosecutor’s final word on 11 the matter was that there was no proof that the cases were resolved unfavorably to the detective-witness. The court concluded, “I am not going to allow it based on what has already been stated” (A.132). Respondent’s insistence that this colloquy following the court’s express ruling on relevance grounds broadened its ruling to include every idea that had been floated by either party, before and after the initial ruling, as well as issues not expressed but containing words that were expressed, is wrong. For example, respondent urges that, because defense counsel used the phrase “other officers” in his application, the Appellate Division and this Court are empowered to rule that defense counsel did not have a good faith basis for questioning the detective about whether he was involved in the false arrest because he did not lay a foundation with the specific acts that the lawsuits accused this detective of committing, as opposed to acts committed by other named officers (RB: 33). Defense counsel’s reference to “other officers” named in the lawsuit that were alleged to have acted with the detective did not transform the court’s express finding that counsel had a good faith basis for asking the detective about his involvement into a finding adverse to appellant that he had no good faith basis for asking the detective such a question because counsel failed to demonstrate that the detective had been “personally linked” to the misconduct. 12 Having precluded inquiry into the false arrests on the grounds that the questioning would be irrelevant, the court’s concluding remark that it was “not going to allow” the questioning “based on what has already been stated,” provides no opportunity to reach theories not reached by the court below. The court’s remark was nothing more than an indication that its prior ruling stood. 2. Because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera with his prior involvement in false arrests, the court’s ruling cannot be affirmed as an appropriate exercise of discretion. Appellant argued in his opening brief that, although the Sixth Amendment and state law allow a trial court some discretion to limit cross-examination of a prosecution witness, supreme court’s ruling could not be justified as an exercise of discretion: the court forbade defense counsel from impeaching Detective Rivera on the grounds that the false-arrest allegations were irrelevant, a legal determination not involving discretion (AB: Point I(B)(2)). Respondent nonetheless defends supreme court’s ruling as an appropriate exercise of discretion (RB: 42). Respondent insists that “the court’s ultimate ruling” reflected a “sound exercise of discretion” (RB: 45, 48), even though the court never mentioned “discretion” or any of the words or phrases normally associated with discretion. Though the court’s ruling forbidding counsel’s proposed line of questioning consisted of a single word repeated twice—“irrelevant”— respondent insists that 13 ruling reflected something more comprehensive. According to respondent, the court undertook a “balancing analysis” (RB: 42, 45), which assessed whether the questioning “risked diverting the jurors’ attention” (RB: 45), weighed the “probative worth” of the questions against the danger of “allowing prejudicial inferences ... to linger” (RB: 46), and determined that the “probative value” of the questions even if “technically permissible ... was outweighed by the risk of significant confusion” and “significant potential for undue prejudice” (RB: 47, 42). Respondent’s speculations to the contrary notwithstanding, there is nothing in the record to suggest that the court weighed any of those considerations. The court’s blanket refusal to allow defense counsel to question the detective about any of the three false arrests demonstrates that the court exercised no discretion. See, e.g., People v. Smith, 18 N.Y.3d 588, 593 (2012)(court’s Sandoval compromise allowing cross-examination about prior convictions, but limited inquiry to the name of the crime, county, and date of conviction, was an appropriate exercise of discretion). The court’s ruling that any questions about Rivera’s involvement in false arrests cannot be affirmed as an exercise of discretion. B. Respondent is wrong on the merits: defense counsel had a good faith basis for questioning the detective about his involvement in prior false arrests, and it was constitutional error to completely forbid that questioning. Respondent makes no challenge to appellant’s contention on this appeal that, had Detective Rivera been involved in false arrests, questions about Rivera’s 14 involvement in those false arrests would have been relevant to his credibility. As discussed in subpoint A, because the trial court forbade questioning solely on relevance grounds, that is the only issue that may be challenged on this appeal. But even assuming respondent were in a position to challenge the merits of counsel’s right to question Rivera on some other ground, that challenge would be unavailing because defense counsel established a good faith basis for asking Detective Rivera about his involvement in the false arrests described in the three federal lawsuits. Respondent no longer presses the trial prosecutor’s objection to questioning about the facts underlying the three false-arrest lawsuits, i.e., that because the three lawsuits were not resolved unfavorably to Detective Rivera, they did not supply a good faith basis to believe that there was any wrongdoing by the detective. Because respondent reluctantly acknowledges that the resolution of the lawsuits is sufficient to establish the reliability of the allegations (RB: 37), we undertake no defense of defense counsel’s demonstration of the reliability of the allegations. Instead, respondent insists that counsel’s showing was insufficient because counsel failed to demonstrate that the circumstances underlying the false arrests were “similar to those that resulted in defendant’s arrest in this case” (RB: 38). But defense counsel was under no obligation to demonstrate a similarity between the false arrests and this case. As discussed more fully in appellant’s opening brief, impeachment by prior bad acts probative of the witness’s credibility is relevant and 15 permissible (AB: 30-33). Bad acts are relevant to credibility regardless of whether they are linked to the subject of the witness’s testimony. See, e.g., People v. Alamo, 23 N.Y.2d 630 (1969)(where defendant was charged with assaulting a police officer and resisting arrest, prosecutor had a good faith basis for asking him about his involvement in robbing taxis, even though Grand Jury failed to indict him for those crimes); People v. Walker, 83 N.Y.2d 455, 461 (1994)(use of aliases or false pedigree information is a proper subject for impeachment on cross-examination because it shows “a willingness or disposition on the part of the particular [witness] to place the advancement of his self-interest ahead of principle or of the interests of society”). The fact that a police officer previously participated in a false arrest is relevant to that officer’s credibility. A false-arrest claim—under both New York and Federal law—requires a showing that the officer’s actions were objectively unreasonable. See, Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007) (probable cause to arrest exists when an officer has “knowledge or reasonably trustworthy information ... sufficient to warrant a person of reasonable caution” “to believe that the person to be arrested has committed or is committing a crime”). Even the most innocent reasons for a false arrest reflect on an officer’s credibility. At a minimum, an officer’s decision to arrest absent a reasonable belief 16 that a person has committed a crime is relevant to the officer’s credibility because it may reflect the officer’s decision to advance his own career at the expense of the arrestee. See, e.g. People v. Dickman, 42 N.Y.2d 294, 299 (1977) (defendant’s reckless driving “demonstrated his disposition to further self-interest at the expense of society or in derogation of the interests of others ... and thus was relevant to his credibility” [internal quotations omitted]); People v. Coleman, 56 N.Y.2d 269, 273 (1982) (publication of pamphlets advocating tax avoidance revealed a willingness to place self interest ahead of that of others). Worse, a false- arrest claim may rest on a knowing lack of probable cause or fabricated evidence, see, e.g., Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998), and can be accompanied by false police reports. See, e.g., Coggins v Buonora, 776 F.3d 108, 113 (2d Cir. 2015). Defense counsel had a good faith basis to ask Detective Rivera about the false arrests, regardless of whether he could show they were similar or were linked to the drug offenses for which appellant was on trial, because participation in a single false arrest was relevant to the jury’s assessment of his credibility. Respondent’s argument that counsel did not adequately specify Detective Rivera’s role in the underlying false arrests fares no better. To begin, because neither the prosecutor nor the court faulted the specificity of counsel’s references to Detective Rivera’s participation in the false arrests, it would be wrong to for this 17 Court to find counsel’s good faith lacking because counsel did not detail Rivera’s role. Had counsel been alerted that his offer of proof lacked specificity, he could have supplied it. It would be unfair to rule to the contrary without that opportunity. Even assuming counsel could have been called upon to identify Rivera’s role, counsel’s statement that Rivera had participated in the arrests that led to the three federal lawsuits was sufficient. No more was required: whether Rivera supervised the false arrests, conveyed the information that triggered the false arrests, or personally effectuated the false arrests, the credibility of his testimony in this case was implicated. The fact that Detective Rivera was named as a defendant in each of the lawsuits required Rule-11-compliant allegations that he did not have qualified or absolute immunity, which meant that his participation in the arrest was an objectively unreasonable action. See, Delgado v. City of New York, 86 A.D.3d 502, 510 (1st Dep’t 2011)( police officer entitled to qualified immunity so long as “it was objectively reasonable for” officer “to believe that his or her conduct was appropriate under the circumstances, or that officers of reasonable competence could disagree as to whether his or her conduct was proper”); Fed.R.Civ.P. 11(b)(3) (requires that, whenever a signed pleading is submitted to the court, an attorney certifies, among other things, that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to 18 have evidentiary support after a reasonable opportunity for further investigation or discovery”). Rivera’s precise role in the false arrests would have been an appropriate subject for inquiry; a detailed account of that role was not a condition precedent to questioning Rivera about it. * * * The court’s ruling entirely forbidding inquiry into the detective’s participation in false arrests on the grounds that the inquiry would have been irrelevant was wrong. The alternate ground for affirmance offered by respondent here—that counsel had no good faith basis for that questioning—is not only procedurally unavailable, but is also lacking in merit. Because this issue was preserved and not harmless, this Court must reverse appellant’s convictions and grant him a new trial on all charges. POINT II BECAUSE THE MOST PROMINENT FEATURE OF UC 93’S DESCRIPTION OF THE SELLER WAS THAT HE HAD ONE EYE THAT WAS “KIND OF OFF,” AND APPELLANT’S PHOTO WAS THE ONLY ONE IN THE ARRAY — ADMINISTERED TWO MONTHS AFTER THE SALE — DISPLAYING A NOTICEABLE EYE CONDITION, THE ARRAY WAS UNDULY SUGGESTIVE BECAUSE IT SINGLED OUT APPELLANT FOR IDENTIFICATION. US CONST. AMEND. XIV; NY CONST. ART. I, § 6 (IN REPLY TO POINT II OF RESPONDENT’S BRIEF). Appellant argued in his opening brief that, because the undercover described the man who had allegedly sold crack to her as having “one eye that’s 19 kind of off,” and appellant’s photo in the array shown to the undercover was the only one whose subject with a walleye—i.e., one eye that was looking off camera—it was unduly suggestive. Not only was appellant’s photo noticeably distinct for the very reason the undercover noted on the day she allegedly bought drugs, but the police made no effort to ameliorate that distinguishing feature. Respondent argues that the hearing court’s determination, affirmed by the Appellate Division, that the array was not unduly suggestive, is beyond the authority of this Court’s review (RB: 57). Because the court below erred as a matter of law, People v. Chipp, 75 N.Y.2d 327, and the courts’ determination that the photo array did not single out appellant is not supported by the record, this Court has the authority to reverse and should exercise it. People v. Delamota, 18 N.Y.3d 107, 118 (2011). While the question of whether a photo array is unduly suggestive is normally a mixed question, see, People v. Holley, 26 N.Y.3d 514, 524 (2015), an identification procedure is unduly suggestive as a matter of law when “the defendant generally resembles the offender but stands out as markedly different from the others,” People v. Gee, 99 N.Y.2d 158, 163 (2002), citing People v. Owens, 74 N.Y.2d 677, 678 (1989)(defendant was the only lineup participant “wearing the distinctive closing ... which fit the description of the clothing allegedly worn by the perpetrator”). Put differently, an identification procedure is unduly 20 suggestive as a matter of law when it “singles out” the defendant. Chipp, 75 N.Y.2d at 336. A photo array containing six photos, only one of which has the sole distinguishing feature noted by the identifying witness when describing the suspect, singles out that person for identification, and is unduly suggestive as a matter of law. Appellant argued in his opening brief that, because his photo was the only one in the array where the subject had an “obvious eye condition,” and that eye condition had been the only distinguishing feature of the undercover’s description of the man who sold her drugs, the array unfairly singled him out as the suspect. More, the police made no effort to conceal or minimize that distinguishing feature. Acknowledging that appellant’s photo in the array showed a “noticeable” left eye condition, that had been noticed and noted by the undercover, respondent dismisses the condition as “slight,” “not ‘that noticeable’ upon first glance,” and “subtle” (RB: 60-61). Ultimately, it is not the adjectives that either appellant or respondent use to label appellant’s eye condition, but whether the condition singles him out for identification, that determines whether the array was unduly suggestive. See, Chipp, 75 N.Y.2d at 336. The array, included in the appendix at A.61, shows six men, five of whom are staring directly into the camera. Appellant’s photo is in position 5. Neither of appellant’s eyes look directly into the camera. The eyes do not focus on 21 the same location. Appellant’s right eye points to the photographer’s left. His left eye gazes up and still further to the photographer’s left. Appellant’s eye condition singled him out. The totality of the undercover’s description of the man she was to identify was: “short male black. Has one eye that’s kind of off. Goes by the name of Shorty.” Because appellant’s photo was the only one that fit that description—the other five men looked intently into the camera with nothing unusual in their eyes—the array singled him out for identification. Respondent makes much of the fact that the undercover was “specially trained” to make identifications, and was “aware from the time” of the drug buy that she would be called upon to identify the seller (RB: 61). Citing People v. Boyer, 6 N.Y.3d 427, 432 (2006), respondent urges that there was “no risk of misidentification” because the undercover had observed the seller face to face (RB: 61-62). Boyer, however, stands for the proposition that there is no risk of misidentification when a trained undercover identifies a seller from whom he purchased drugs only minutes earlier. Cf. People v. Newball, 76 N.Y.2d 587, (1990)(undercover officer’s identification of seller in buy and bust operation not confirmatory when it took place weeks after the sale). Here, the undercover viewed the array two months after the sale. That she had focused on the seller’s 22 eye condition, noting it in her description, made it more likely, not less, that she singled out appellant’s photo. Accordingly, the court’s order denying suppression should be reversed, appellant’s conviction should be vacated, and the case should be remitted for retrial to be preceded by an independent source hearing. POINT III APPELLANT WAS INCORRECTLY SENTENCED AS A SECOND FELONY DRUG OFFENDER WHOSE PRIOR CONVICTION WAS A VIOLENT FELONY BASED ON HIS EARLIER CONVICTION FOR CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE BECAUSE, AT THE TIME HE COMMITTED THIS OFFENSE, PENAL LAW § 265.02(4) WAS NO LONGER A VIOLENT FELONY (IN REPLY TO POINT III OF RESPONDENT'S BRIEF). Appellant was sentenced as a second felony drug offender whose prior felony conviction was a violent felony based upon his March 19, 2003 conviction for criminal possession of a weapon in the third degree under Penal Law § 265.02(4). While Penal Law § 265.02(4) was a violent felony in 2003, it was declassified as a violent felony in 2007. When appellant was alleged to have committed the drug crimes in 2011 and 2012, Penal Law § 265.02(4) remained absent from Penal Law § 70.02(1)’s list of designated violent felonies. Appellant argued in his opening brief that the plain language of the operative sentencing provisions in effect in 2011 and 2012, when appellant committed the charged offenses, did not give him fair notice that he could receive an enhanced sentence 23 because of his prior conviction, because the crime he had committed was no longer a designated violent felony. Respondent acknowledges that, at the time appellant committed the drug offenses, Penal Law § 265.02(4) was no longer a violent felony. But respondent insists that the absence of Penal Law § 265.02(4) from the list of New York’s violent felonies “must not be read in isolation” (RB: 67). By respondent’s reckoning, because the statute that authorizes imposition of an enhanced sentence upon a second felony drug offender whose prior felony conviction was a violent felony includes backward-looking language, it requires that the sentencing court look back to whether the predicate crime was a designated violent when it was committed. At its core, the question is which version of Penal Law § 70.02(1)’s list of designated violent felonies should be used to assess whether an offender is currently a second felony drug offender whose prior conviction is a violent felony: the repealed list that was in effect at the time of the prior crime, or the list in existence at the time the offender committed the offense for which he is now to be sentenced? The question is answered by the statutes’ plain language, which dictated that criminal possession of a weapon in the third degree under subdivision four was no longer a violent felony when appellant committed the offenses in 2010 and 2011. Because it was no longer a designated violent felony, appellant did not have 24 fair notice that he could receive an enhanced sentence. See, F.C.C. v. Fox Television Stations, Inc., _ U. S. _, _, 132 S.Ct. 2307, 2317 (2012)(a “punishment fails to comply with due process if the statute or regulation under which it is obtained fails to provide a person of ordinary intelligence fair notice....” [internal quotations and citations omitted]); Penal Law § 1.05(2) (purpose of the Penal Law is, among other things, “[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction”). Respondent argues that this Court’s decision in People v. Walker, 81 N.Y.2d 661 (1993), where the Court reviewed “comparable language” demonstrates that the Legislature expressed an intent to “look at the time of the prior crime when considering whether the crime qualified as a predicate violent” (RB: 69). Because appellant’s challenge is very different than Walker’s, Walker provides no support for respondent’s argument. In 1984, Walker was convicted of grand larceny in the third degree, under Penal Law § 155.30(1), a class E felony. The 1984 version of Penal Law § 155.30(1) made it a felony to steal property valued at more than $250. In November 1990, Walker was indicted for felony drug possession charges and later found guilty after trial. At the time of the 1990 offense, Penal Law § 155.30(1) remained a class E felony. But the statute’s minimum value had been bumped up from $250 to $1,000 and had been renamed grand larceny in the fourth degree (L. 1986, ch 515, § 1). 25 The People sought to sentence Walker as a second felony offender, based on the 1984 grand larceny conviction. The trial court declined, finding that the crime he’d committed in 1984 would no longer be a felony under then current law, and the People appealed. This Court reversed, finding that the defining language in the second felony offender statute “signal[ed] its 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.” 81 N.Y.2d at 665. The statutory mechanism for assessing whether a defendant is a second felony drug offender whose prior conviction is a violent felony is entirely different than the second-felony-offender mechanism addressed in Walker: it contains no defining language signaling a backward looking intent. The second felony offender statute states that, for a “conviction to constitute a predicate felony conviction, ‘[t]he conviction must have been in this state of a felony.’” Walker, 81 N.Y.2d at 664 (italics added), quoting Penal Law § 70.06(1)(b)(i). Felony was and is defined as “an offense for which a term of imprisonment in excess of one year may be imposed.” 81 N.Y.2d at 664 quoting Penal Law § 10(5). This Court concluded that the statute specified that, because the crime Walker committed was a felony when it was committed, it satisfied that statutory language that, “the conviction must have been in this state of a felony.” Penal Law 70.06(1)(b)(i)(italics added). 26 At the time Walker committed the 1990 felony drug possession offense, he had fair notice that he would be sentenced as a second felony offender. See, People v. Morse, 62 N.Y.2d 205 (1984)(fair notice for recidivist sentencing purposes is assessed at the time of the commission of the crime upon which the enhanced sentence is imposed). As defined by the second felony offender statute, the prior larceny qualified to enhance his current sentence because it was a felony at the time it was committed in 1984. More, Penal Law § 155.30(1)—the precise statute he had been convicted of having violated— remained a felony, as did grand larceny in the fourth degree, the title of his 1984 offense. In 1990, a person having previously been convicted of grand larceny under Penal Law § 155.30(1) in 1984, would have known that he faced sentencing as a second felony offender should he choose to commit a felony drug possession offense: he’d been convicted of a felony, and the Penal Law statute he’d been convicted of remained a felony in the Penal Law. Conversely, at the time appellant committed these drug offenses in 2010 and 2011, he did not have fair notice that he could be sentenced as a second felony offender whose prior conviction was a violent felony. The statutory mechanism for assessing whether a defendant is a second felony offender whose prior conviction is a violent felony is both different and more precise than the statute at issue in Walker. Penal Law § 70.70, the felony drug sentencing statute, defines “violent 27 felony” as having the “same meaning” as provided in Penal Law § 70.02(1). See, Penal Law § 70.70(1)(c). Unlike the second felony offender statute, which provides a general definition of what constitutes a felony, Penal Law § 70.02(1) provides an all-inclusive list of designated violent felonies. At the time appellant committed the drug offenses in 2010 and 2011, criminal possession of a weapon in the third degree under Penal Law § 265.02(4) was not on the violent felony list. The second felony offender statute in existence at the time Walker committed his 1990 drug offense provided a definition of a felony to which his prior conviction conformed. Here, the relevant drug sentencing statutes in effect at the time appellant committed the 2010 and 2011 drug crimes, provided a list of qualifying violent felonies and appellant’s conviction was not one of them. Appellant did not have fair notice that he was subject to the enhanced punishment of a second felony drug offender whose prior conviction was a violent felony. See, People v. Morse, 62 N.Y.2d at 217 (because the offender had “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[,]” the fair notice purpose of Penal Law § 1.05(2) was not “infringed.” Because criminal possession of a weapon under § 265.02(4) is not a violent felony for the purposes of § 70.02 & §70.70, appellant’s prior conviction under 28 § 265.02(4) should not have been used to treat him as a second felony drug offender whose prior conviction was a violent felony. CONCLUSION FOR THE R EASONS STATED IN POINT I ABOVE AND IN APPELLANT'S OPENING BRIEF, APPELLANT'S CON VICTION S SHOULD B E REVERSED AND A N EW TRIAL ORDERED; FOR THE REASONS STATED IN POINT ti.ABOVE AND IN APPELLANT'S OPENING BRIEF, APPELLANT'S CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL ORDERED TO BE PRECEDED BY AN INDEPENDENT SOURCE H EARING; AND, FOR TH E REASONS STATED IN POINT Ill .ABOVE AND IN APPELLANT'S OPENING BRIEF, APPELLANT SHOULD B E RESENTENCED. MarkW. Zeno Center for Appella c Lj igation 120 Wall Street New York, NY 10005 (212) 577-2523, ext. 505 mzeno@cfal.org Angela Zhu Pro Bono Counsel Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 (212) 839-5300 Respectfully submitted, ROBERTS. DEAN Attorney for Defendant-Appellant 29