The People, Respondent,v.Isma McGhee, Also Known as Izzy, Appellant.

Brief

N.Y.June 1, 2016

APL-2015-00243 To be argued by MARK W. ZENO (15 Minutes) 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 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The motion to suppress identification testimony. . . . . . . . . . . . . . . . . . . . . . 6 The Wade hearing and ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Post-hearing argument and denial of suppression. . . . . . . . . . . . . . . 10 Defense counsel seeks permission to ask Detective Rivera about prior false arrests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Abraham Lincoln Houses investigation. . . . . . . . . . . . . . . . . . . . . . . 13 November 18, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Questioning about Rivera’s search warrant application stating that it had been appellant’s brother, not appellant, that had sold crack on November 18 opens the door to testimony about two prior sales.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 February 1, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 March 9, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 March 13, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 March 28, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 i March 30, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 The May 16, 2012 arrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Verdict & Sentencing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The Appellate Division affirmance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 POINT I THE COURT ERRONEOUSLY PRECLUDED DEFENSE COUNSEL FROM CROSS-EXAMINING THE LEAD DETECTIVE ABOUT HIS INVOLVEMENT IN THREE FALSE ARRESTS THAT BECAME THE SUBJECT OF FEDERAL LAWSUITS, THEREBY DEPRIVING APPELLANT OF HIS RIGHTS TO DUE PROCESS AND TO CROSS-EXAMINE AND CONFRONT WITNESSES. US CONST., AMENDS. VI, XIV; NY CONST., ART. I, §6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. The applicable law: defendant’s right to confront and impeach adverse witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 B. Appellant should have been permitted to impeach Detective Rivera by asking him about his involvement in three false arrests that became the subject of federal lawsuits.. . . . . . . . . . . . . . 34 1. The court erred when it entirely precluded defense counsel from asking Detective Rivera whether he had previously falsely arrested three defendants in separate incidents on the grounds that those matters were “irrelevant to this case.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2. The Appellate Division was without jurisdiction to affirm on any ground other than that inquiry into Detective Rivera’s involvement in the false arrests was irrelevant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 ii 3. Because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera with his involvement in false arrests, the court’s ruling cannot be affirmed as an appropriate exercise of discretion. . . . . . . . . . . . . . . . . . . . . . . 40 C. Appellant’s Confrontation Clause and State law claims are preserved.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 D. The court’s total preclusion of cross-examination into the facts underlying the false-arrest lawsuits was not harmless.. . . . . . . . 45 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 LINEUP WAS UNDULY SUGGESTIVE. US CONST. AMEND. XIV; NY CONST. ART. I, § 6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 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 (PENAL LAW § 265.02(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 iii TABLE OF AUTHORITIES Federal Cases Brookhart v. Janis, 384 U.S. 1 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Davis v. Alaska, 415 U.S. 308 (1974). . . . . . . . . . . . . . . . . . . . . . . 4, 28, 29, 30, 32, 43 Delaware v. Fensterer, 474 U.S. 15 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Dunaway v. New York, 442 U.S. 200 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Gordon v. United States, 344 U.S. 414 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Lamie v. United States Trustee, 540 U.S. 526 (2004). . . . . . . . . . . . . . . . . . . . . . . . 66 Legislature. Ohio v. Johnson, 467 U.S. 493 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . 67 Olden v. Kentucky, 488 U.S. 227 (1988). . . . . . . . . . . . . . . . . . . . . . . 4, 18, 19, 24, 33 Pennsylvania v. Richie, 480 U.S. 39 (1987). . . . . . . . . . . . . . . . . . . . . . . 28, 29, 30, 33 Simmons v. United States, 390 U.S. 377 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 United States v. Granderson, 511 U.S. 39 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 66 United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir. 1990). . . . . . . . . . . . . . 33 United States v. Payne, 63 F.3d 1200 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . 38 United States v. Wade, 388 U.S. 218 (1967). . . . . . . . . . . . . . . . . . . 49, 50, 51, 55, 56 Wardius v. Oregon, 412 U.S. 470 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 iv State Cases Burger King, Inc. v. State Tax Commission, 51 N.Y.2d 614 (1980). . . . . . . . . . . . 65 Finger Lakes Racing Ass’n, Inc. v. New York State Racing &Wagering Board, 45 N.Y.2d, 471 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Johnson v. Hudson Riv. R. R. Co., 49 N.Y. 455 (1872). . . . . . . . . . . . . . . . . . . . . . 68 Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577 (1998). . . . 67 Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 N.Y.2d 86 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 People v. Allen, 50 N.Y.2d 898 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 43, 44 People v. Andrews, 54 A.D.3d 618 (1st Dep’t 2008). . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Ashner, 190 A.D.2d 238 (2d Dept. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Bady, 202 A.D.2d 440 (2d Dep’t 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Berrios, 28 N.Y.2d 361 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Boone, 251 A.D.2d 423 (2d Dep’t 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Bowens, 120 A.D.3d 1148 (1st Dep’t 2014). . . . . . . . . . . . . . . . . . . . . . . 63 People v. Buie, 86 N.Y.2d 501 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Carolina, 184 A.D.2d 520 (2d Dep’t 1992). . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Castillo, 47 N.Y.2d 270 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Chin, 67 N.Y.2d 22 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Chipp, 75 N.Y.2d 327 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Colavito, 87 N.Y.2d 423 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 v People v. Coleman, 56 N.Y.2d 269 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Concepcion, 17 N.Y.3d 192 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 39 People v. Corby, 6 N.Y.3d 231 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 41 People v. Crimmins, 36 N.Y.2d 230 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 56 People v. Cronin, 60 N.Y.2d 430 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . 5, 41, 42, 43 People v. Dais, 19 N.Y.3d 335 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 People v. Daley, 9 A.D.3d 601 (3d Dep’t 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Davis, 169 A.D.2d 508 (1st Dep’t 1991). . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Delamota, 18 N.Y.3d 107 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Eastman, 85 N.Y.2d 265 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28 People v. Epton, 19 N.Y.2d 496 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 People v. Evans, N.Y.L.J., Aug. 23, 1989 (Sup. Ct. Bx. Co.). . . . . . . . . . . . . . . 52, 65 People v. Figueroa, 166 A.D.2d 165 (1st Dep’t 1990).. . . . . . . . . . . . . . . . . . . . . . . 51 People v. Garcia, 25 N.Y.3d 246 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Garrett, 23 N.Y.3d 878 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38 People v. Gissendanner, 48 N.Y.2d 543 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 People v. Glaspie, 170 Misc.2d 828 (Sup. Ct. Queens Co. 1996). . . . . . . . . . . . . . . 54 People v. Golb, 23 N.Y.3d 455 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 People v. Gourdine, 223 A.D.2d 428 (1st Dep’t 1996). . . . . . . . . . . . . . . . . . . . . . . 55 People v. Graham, 55 N.Y.2d 144 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 vi People v. Herrera, 198 A.D.2d 9 (1st Dep’t 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 55 People v. Ingram, 125 A.D.3d 558 (1st Dep’t 2014). . . . . . . . . . . . . . . . . . . 36, 37, 39 People v. Jones, 193 A.D.2d 696 (2d Dep’t 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. LaFontaine, 92 N.Y.2d 470 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 People v. Lynes, 106 A.D.3d 433 (1st Dep’t 2013). . . . . . . . . . . . . . . . . 60, 61, 69, 70 People v. Marshall, _ N.Y.3d _, 2015 WL 9090609. . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. McCray, 23 N.Y.3d 193 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. McGee, 68 N.Y.2d 328 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Morales, 20 N.Y.3d 240 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 People v. Morse, 62 N.Y.2d 205 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 63 People v. Negron, _ N.Y.3d _, 2015 WL 7355828 (2015). . . . . . . . . . . . . . . . . . . . 43 People v. Owens, 74 N.Y.2d 677 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 51 People v. Paulin, 17 N.Y.3d 238 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 People v. Perry, 133 A.D.3d 410 (1st Dep’t 2015). . . . . . . . . . . . . . . . . . . . . . . 52, 54 People v. Rahming, 26 N.Y.2d 411 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Riley, 158 A.D.2d 559 (2d Dep’t 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Samms, 95 N.Y.2d 52 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 People v. Sandoval, 34 N.Y.2d 371 (1974).. . . . . . . . . . . . . . . . . . . . 4, 31, 32, 33, 35, 41, 42, 43 vii People v. Santiago, 17 N.Y.3d 246 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69, 70 People v. Scarola, 71 N.Y.2d 769 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 People v. Schaeffer, 56 N.Y. 448 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Smith, 18 N.Y.3d 588 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 31, 36, 37, 68 People v. Stuart, 100 N.Y.2d 412 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Tatum, 129 Misc. 2d 196 (Sup. Ct. Queens Co. 1985). . . . . . . . . . . . 52, 55 People v. Thomas, 122 A.D.3d 489 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 63 People v. Walker, 83 N.Y.2d 455 (1994). . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 31, 32 People v. Webster, 139 N.Y. 73 (1893). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Williams, 56 N.Y.2d 236 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 43, 55 People v. Wise, 46 N.Y.2d 321 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Sega v. State, 60 N.Y.2d 183 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 People v. Yusuf, 19 N.Y.3d 314 (1st Dep’t 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Statutes CPL § 470.15(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 39 CPL § 470.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Fed.R.Evid. 608(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Penal Law § 1.05(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 62, 63 Penal Law § 70.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 9, 10, 12, 59, 61, 65, 69 viii Penal Law § 70.02(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Penal Law § 70.04(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 66 Penal Law §70.06(1)(b)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Penal Law § 70.08(1)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 66 Penal Law § 70.70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Penal Law § 70.70(1)(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 63, 64, 69 Penal Law § 70.70(1)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 62, 63, 64, 65, 69 Penal Law § 70.70(3)(b)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Penal Law § 70.70(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 64, 66 Penal Law § 220.30(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 61 Penal Law § 265.02(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 26, 28, 58, 60, 61, 63, 64, 69 Penal Law § 265.03(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 ix 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 By permission of the Honorable Sheila Abdus-Salaam., Associate Judge of the Court of Appeals, granted September 4, 2015 (A.3),1 appellant, Isma McGhee, appeals from a judgment of the Supreme Court, New York County, rendered on December 3, 2012, convicting him, after a jury trial, of ten counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.30 [1]). Mr. McGhee was sentenced on each count to concurrent terms of 12 years in prison followed by 3 years of postrelease supervision (Nuñez, J., at pre-trial hearings, trial, and sentencing). 1Numbers preceded by “A” refer to pages in the accompanying Appendix. Numbers preceded by “TT” refer to pages of the trial transcript not included in the Appendix. Names, including abbreviated ones, preceding page references, refer to the witness whose testimony is cited. 1 On October 20, 2015, this Court granted appellant’s motion for assignment of counsel, assigning Robert S. Dean, Center for Appellate Litigation, to represent him. No application for a stay of execution of sentence has been made. Appellant is currently serving his sentence. QUESTIONS PRESENTED 1. Whether the court erroneously precluded defense counsel from cross-examining the lead detective about his involvement in three false arrests that became the subject of federal lawsuits, thereby depriving appellant of his rights to due process and to cross-examine and confront witnesses. 2. Whether, 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 lineup was unduly suggestive. 3. Whether appellant’s sentence as a second felony drug offender whose prior conviction was a violent felony offender is illegal because his prior offense is not a “violent” one as defined by Penal Law § 70.02. SUMMARY OF ARGUMENT For one year from May 2011 to May 2012, the Manhattan North Narcotics Bureau conducted an undercover investigation of narcotics commerce at the Abraham Lincoln Houses, located from East 132nd Street to East 135th Street between Fifth and Park Avenues. As part of that overarching investigation, the 2 People alleged that, from November 2011 through May 2012, appellant Isma McGhee made ten sales of crack cocaine to undercover officers. In Point I, below, appellant challenges the court’s evidentiary rulings limiting defense counsel’s efforts to impeach Detective Arnaldo Rivera, who was not only the detective leading and supervising the year-long investigation into appellant’s alleged crack-selling operation in the Lincoln Houses, but also the People’s lead witness. Through Rivera, the prosecutor established a framework for the People’s case against appellant, setting the scene of the investigation, describing the roles of the undercovers and introducing them by number, identifying appellant and his brother as the men who had sold drugs to the undercovers during the operation, walking the jury through each of the sales, and detailing the events leading up to appellant’s arrest. The veracity and accuracy of Rivera’s account was particularly important because one of the undercovers would be unavailable to testify, having attempted suicide as a result of the stresses of her work, and having been reassigned to administrative-only duty, and Rivera was permitted to testify that she had identified appellant as the person who had sold narcotics to her. Rivera’s credibility, and the precision of his account, were critical. It was constitutional error to prohibit defense counsel from impeaching Rivera by cross-examining him about his involvement in three false arrests in the course of his work. The fundamental right guaranteed by the Confrontation Clause 3 is the right to cross-examine the People’s witnesses. People v. Eastman, 85 N.Y.2d 265, 274 (1995). The Sixth Amendment right to cross-examine adverse witnesses includes traditional forms of impeachment that extend only to general credibility. Davis v. Alaska, 415 U.S. 308 (1974). While impeachment can take many permissible forms, impeachment by prior bad acts probative of the witness’s character for truthfulness is relevant and permissible, because those acts are relevant to a witness’s credibility. People v. Sandoval, 34 N.Y.2d 371, 376-77 (1974). Here, the court deprived appellant of the “wide latitude” for cross-examining Detective Rivera that the Confrontation Clause guaranteed him. Although the Confrontation Clause permits courts to place reasonable limits on cross-examination, Olden v. Kentucky, 488 U.S. 227, 232 (1988), the court’s blanket prohibition against any inquiry into the facts underlying the lawsuits was unlawful. The court’s conclusion that the evidence would have been irrelevant was legally wrong: had Rivera falsely arrested one or more persons before, that would have had a legitimate bearing on the jurors’ assessment of his credibility. The Appellate Division’s affirmance on the alternate ground that defense counsel did not have a good faith basis for inquiring into the detective’s involvement in the false arrests violated CPL § 470.15(1), because it was not a ground “decided adversely to the appellant by the trial court.” People v. 4 Concepcion, 17 N.Y.3d 192, 195 (2011)(emphasis in original). The trial court precluded cross-examination solely on relevance grounds. More, although courts have some discretion in limiting cross-examination, the court’s ruling cannot be affirmed as an appropriate exercise of discretion, because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera. See, People v. Cronin, 60 N.Y.2d 430 (1983). Because appellant preserved his constitutional and state law claims, and the court’s errors were not harmless beyond a reasonable doubt, appellant’s convictions must be reversed and a new trial ordered. In Point II, below, appellant challenges the court’s failure to suppress an identification following a photo array on the grounds that it was unduly suggestive. At a Wade hearing, UC 93 described the man who had allegedly sold crack to her on March 13, 2012, as a “short male black. Has one eye that's kind of off. Goes by the name of Shorty.” When preparing the photo array two months later, the police neither found someone else with a similar condition nor took any steps to ameliorate the difference between appellant and the other five photo-array participants. Because appellant’s photo was the only one in the array to meet the given description — i.e., only his photo featured an obvious eye condition — the array unfairly singled him out as the suspect and was unduly suggestive. See, People v. Owens, 74 N.Y.2d 677, 678 (1989). Accordingly, this Court should 5 vacate appellant's conviction and order a new trial to be preceded by an independent source hearing. In Point III, below, appellant challenges his sentence. Appellant’s sentence was illegal because he was incorrectly sentenced as a second felony drug offender whose prior conviction was a violent felony, and criminal possession of a weapon in the third degree under Penal Law § 265.02(4) is not a violent felony within the meaning of Penal Law § 70.02. STATEMENT OF FACTS The motion to suppress identification testimony Appellant was alleged to have been involved in crack sales between November 18, 2011 through March 30, 2012. The People gave notice that appellant had been identified by undercover officers four times, each of which they alleged were confirmatory: two “photo-identifications” on November 18, 2011, an identification from a “setbook of photos” on March 28, 2012, and a “photo array” identification on May 8, 2012 (VDF: A.17). In appellant’s omnibus motion, defense counsel moved to suppress the confirmatory photographic identifications because of the “passage of time between the sales and the identifications,” and the prosecution’s failure to use lineups rather than photos. Counsel also sought to suppress the identification resulting from the photo array on the grounds that it was “suggestive” (Omnibus Motion: A.38). 6 The prosecutor opposed, characterizing the timing of the identifications as follows: • The first was a single photo identification made less than four hours after the transaction occurring November 18, 2011.2 • The second was made from a setbook of photos approximately five hours after the transaction occurring on March 28, 2012. • The third was made approximately two months after the alleged transaction from a photo array. (Affirmation in Resp. to the Def.’s Omnibus Motionz: A.51-52). The court denied Wade hearings for all but the last identification (Decision on Omnibus Mot: A.55-56). The court concluded that the first two, made three and three-quarter hours after the related transactions, and the third, made approximately five hours after the related transaction, were confirmatory. The court ordered a hearing to determine whether the last identification, made 61 days after the undercover had allegedly seen appellant, was unduly suggestive (Id.). The Wade hearing and ruling The People called one witness, Detective Arnaldo Rivera. From January 7, 2011, through March 30, 2012, Manhattan North detectives were involved in a long-term investigation of narcotics dealing in the Abraham Lincoln Houses located between Park and Fifth Avenues from 132nd to 135th Street. According to 2 It was later clarified that two officers, who had engaged in two separate purchases of cocaine, allegedly from appellant, each made an identification that day (Decision on Omnibus Mot: A.56). 7 Detective Rivera, officers made approximately 60 drug purchases from 24 different persons (A.77). Rivera was the “case detective,” responsible for managing the operation along with his supervisors and undercovers (A.78). Rivera alleged that appellant participated in thirteen crack cocaine sales to Manhattan North undercovers during that period. Only one of those sales, alleged to have occurred at 4:25 in the afternoon on March 13, 2012, was the subject of the Wade hearing. While Rivera neither witnessed nor participated in the sale, he testified that UC 90 had previously purchased crack from appellant and had his telephone number. On March 13, UC 90 allegedly called appellant and arranged to meet him in the vicinity of 1980 Park Avenue (A.82). UC 90 went to that location along with UC 93, and appellant allegedly asked them to follow him into the lobby, where each undercover exchanged prerecorded buy money for four ziplock bags of cocaine (A.82-83). While Rivera had a photo of appellant in his case file, he did not show it to the officers before or after the sale (A.91). Rivera testified that he was familiar with the location, and that there were “plenty of fixtures” of light in the area, and also “natural light” from windows (A.83). After the alleged sale by appellant, UC 93 told Rivera that the man that had sold crack to her was known by the nickname, “Shorty,” and described the man as having “one eye that’s kind of off” (A.91). Even though Rivera had a photo of 8 appellant in his case file, he claimed at the hearing that he did not have the opportunity to administer any identification procedure at that time (A.92). Nearly two months later, at around 1:30 PM on May 8, 2012, Detective Rivera administered a photo array identification for Undercover 93 to identify the seller in the March 13 sales (A.84-85). The array, entered into evidence as People’s hearing exhibit 1, was generated using the Photo Manager system (A.93). Based on Undercover 93’s description, Detective Rivera entered Mr. McGhee’s NYSID number into the system, which then automatically generated five other photographs with similar facial characteristics (A.94). Detective Rivera was aware that appellant had “some vision issue … might be cross-eyed or dead-eyed or something along those lines” (A.95) and that no other photo exhibited these characteristics, but stated that he had no way of telling the system to generate photos of individuals with a similar issue. Rivera manually “scrolled through pages of photos,” but could not “come up with” any others with similar eye problems (A.95). Detective Rivera instructed Undercover 93 to view the array carefully and tell him if she recognized anyone (A.96). No one else was present (id.). After about a minute (A.97), she identified number 5, appellant’s photo, as the man who had sold her crack two months earlier (A.85, 96). 9 Post-hearing argument and denial of suppression Defense counsel argued that the photo identification should be suppressed because it was unduly suggestive. Appellant was the only individual in the photo array who was “looking off and away,” while “the other fillers are looking straight on to the camera” (A.97). He emphasized that Undercover 93 had noted this characteristic in the description she had given two months before the identification (A.98). Counsel argued that a more thorough search through the photo bank should have been conducted to find individuals with similar conditions (A.99). The People responded that the photo array was not unduly suggestive, because there were people that appeared both “younger and older,” “lighter and darker,” and that all had “some degree of facial hair and all have short cropped dark hair” (A.99). Conceding that appellant had some sort of eye condition, the prosecutor argued that it would have been “impractical and unworkable if not impossible” to place photos in the array of persons with a similar condition (id.). Citing to an unnamed case from this Court that he had read “not too long ago,” the prosecutor argued that officers were not required to find photos of persons with similar unique appearance issues, comparing the suggestion of scrolling through the photo bank in order to find others with eye issues to finding lineup fillers weighing 400 pounds or more in order to match a defendant’s weight (A.100). 10 The court denied suppression (A.100-01). Acknowledging that defendant’s photo was the only one in the array in which the participant was not “looking into the camera,” the court found that the array was not unduly suggestive: While it’s true that the photo of the defendant shows him not looking into the camera while all the others are looking into the camera, I don’t find this to be unduly suggestive as to constitute unlawful police procedure. I don’t think it’s that noticeable when you first look at the photo array. And instead, looking at all the faces of the subjects, they are similar in appearance and this photo array does appear to be a fairly constituted photo array (A.101). Defense counsel seeks permission to ask Detective Rivera about prior false arrests Before trial, defense counsel told the court that he planned to question Detective Rivera regarding prior bad or immoral acts (A.127). Specifically, Detective Rivera was a named defendant in three lawsuits for false arrest, providing counsel with a good faith basis for questioning his participation in the conduct underlying those charges (A.127-28). The People opposed unless the suits had been resolved unfavorably against Rivera (A.129). Two of the three were settled with the city with no specific acknowledgments of wrongdoing. The settlements were in the amounts of $30,000 and $75,000. (A.130-31). Defense counsel stated that he would not ask about Detective Rivera’s status as a named defendant, but whether he had made false arrests of the persons named as plaintiffs in the lawsuits (A.129). That is, the questioning would be based 11 on the underlying facts of the suits – whether Detective Rivera had participated in the arrest, whether the plaintiffs had in fact committed the alleged crimes, and whether he had participated in false arrests – and not the suits themselves (id.). This was particularly relevant, because appellant contended that he’d been falsely arrested (A.128). The detective was free to deny participation in the false arrest if he believed it untrue, but counsel was entitled to ask the question, he argued (A.130). The court denied counsel’s request, acknowledging that counsel had a good faith basis for asking the question, but ruling it “irrelevant,” stating, “I cannot allow that. It’s irrelevant to this case” (A.129-31). Defense counsel objected, stating that he should be able to confront any witness, police officer or otherwise, about any prior bad act they committed (A.130), noting that: [T]here is a direct link in my defense in this case …. This is his actions as a police officer, which is specifically what I’m calling into question. … I should be allowed to at least confront the detective about that (A.130-31). The court stood by its earlier ruling (A.132). 12 The trial Abraham Lincoln Houses investigation From May 2011, through May 2012, Manhattan North Detectives conducted a long-term narcotics investigation of the Abraham Lincoln Houses located from 132nd Street to 135th Street between Park Avenue and Fifth Avenue (A.159, 164, 169, 241). The Lincoln Houses consist of 14 residential buildings, between six and 14 stories tall. The investigation was prompted by community complaints of drug selling and violence (A.162). Roughly two dozen total people were ultimately arrested for selling various drugs, including crack cocaine, cocaine, marijuana, heroin, and ecstasy (A.163-64, 241). Detective Arnaldo Rivera was not only the lead detective on the investigation, but the People’s lead witness, explaining the nature of the investigation, and the roles played by each officer (Riv: A.172). Rivera’s duties included coordinating the investigation operations generally, processing the paperwork, and handling the arrest, or “takedown,” ending the investigation on May 16, 2012 (Riv: A.169). Five undercovers were assigned to make purchases at various points during the investigation: UC 79, UC 90, UC 93, UC 219, and UC 213 (Riv: A.170). UC 213, although she was an undercover during the course of the investigation, had been removed from the undercover program due to personal or “mental health related” issues and assigned to administrative duties (Riv: A.171). 13 Although Rivera did not personally witness any of the alleged sales, and was not even on the field team during each sale, his testimony provided a framework of sales the prosecution intended to prove, testifying when, where, by whom, and to whom the sales had allegedly been made (Riv: A.175-231). Rivera testified that appellant was a target of the investigation, identified him by name as the target of the investigation, pointed him out in the courtroom, and identified his photo, which was introduced into evidence (Riv: A.165; People’s exhibit 2). Rivera stated that appellant’s brother, Bobby Lane was also a target of the investigation, and identified his photo, which was also introduced into evidence (Riv: A.165-66; People’s exhibit 3). Rivera described appellant as a black male about 5’2” tall with a short haircut and a “lazy eye or a bad eye on one side” (Riv: A.165). He described appellant’s brother, Bobby Lane, as a black male, about 5’9” or 5’10” with a short haircut and mustache (Riv: A.165-66), who “also, as the defendant, has a distinguished eye” (Riv: A.270), further stating, “they both have almost the same characteristic with the eyes” (Riv: A.271). At some point in the investigation, Lane suffered an eye injury that caused him to cover his eye (Riv: A.165). November 18, 2011 UC 90 and UC 76 testified that they were walking east on 132nd Street at about 5 pm when a man they identified as appellant approached them and “got 14 into a narcotics conversation” with them during which appellant agreed to sell them crack (UC 90: A.275, 345; UC 76: A.464-66). According to the undercovers, appellant asked them to follow him into the lobby of 2101 Madison Avenue, where UC 90 told him that she wanted two dimes of crack and handed him $20 of prerecorded buy money. Appellant then handed her two orange zips of crack (UC 90: A.276-77; UC 76: A.464-66; People’s Ex. 4; Criminalist Sai Yee Tsang: TT: 241). UC 76 purchased three zips of crack in exchange for $25 of prerecorded buy money (UC 90: A.275; UC 76: A.465-70; People’s exhibit 14; Criminalist Ushaben Naik: TT: 278). The undercovers testified that, after leaving the building, they radioed their field team and told them they’d made a positive buy, later giving the crack to Detective Martin Campos for vouchering (UC 90: A.283; UC 76: A.469, 47; Cam: A.243, 248). Refreshing her recollection with her buy report, UC 90 testified that the physical description of the seller that she had given to her field team was “a male black approximately 35 to 403 years old, 5'3" to 5'6", 120 to 130 pounds” (UC 90: A.283). She testified that she identified appellant as “JD Shorty,” because that’s the name he gave her (UC 90: A.283, 342). Although she initially insisted that she’d 3It is unclear whether this should read “25 to 30 years old,” because, on cross- examination, UC 90 is directed to her earlier testimony and asked whether the day before she’d described him at 20 to 25 years old, rather than 25 to 30 (Riv: 191). 15 never identified appellant as JD Izzy, UC 90 later conceded that she had also called the man JD Izzy in her testimony to the Grand Jury, because, that too, was a name he provided to them (UC 90: A.343-44). According to Detective Rivera, the name JD Izzy preceded JD Shorty (Riv: A.218). Questioning about Rivera’s search warrant application stating that it had been appellant’s brother, not appellant, that had sold crack on November 18 opens the door to testimony about two prior sales. Before appellant’s arrest, Detective Rivera applied for and received a warrant to search appellant’s apartment (Riv: A.218-19). In the search warrant application, however, he stated that, on November 18, 2011, it had been appellant’s brother Bobby Lane, and not appellant, who had made those sales (Riv: A.219). According to Rivera, although the “actual paperwork” about the sale was correct, the application for the search warrant “mixed up” the names: instead of stating that JD Izzy or JD Shorty had made the sales earlier that day, the application stated that it had been “JD Buddha,” which was Lane’s street name (Riv: A.219). Rivera attempted to explain that he’d “missed the fact” that the wrong seller was named; it was not a mistake with the facts, but a “mistake in the name” (Riv: A.219-20). But in addition to the mix-up of the JD names, the search warrant also used the name “Bobby Lane” “multiple times” (Riv: A.219-20). UC 90 testified that she had not been involved in the preparation of the search warrant 16 application, and had never told Detective Rivera that it had been Lane, not appellant, that had sold crack to her on November 18 (UC 90: A.347). Although Rivera stated that the search warrant included every sale in which Rivera had been involved, it did not include any reference to sales occurring on March 9, or March 30, 2012, even though Rivera testified that there had been two on March 9, and another on March 30 (Riv: A.221-22). On redirect examination, pursuant to the court’s pretrial ruling that any impeachment using the search warrant application would open the door to proof of two prior alleged sales, Rivera testified that the November 18, 2011 sales were not the first to be made by appellant (Riv: A.227). When the prosecutor asked whether appellant had made sales to undercover officers on May 11, and 18, 2011, defense counsel objected, citing Rivera’s lack of first-hand knowledge. While the court sustained the objection, the court then directly asked Rivera whether he’d witnessed the sales. When Rivera stated that he had not witnessed the sales but had been part of the field team, the court asked Rivera whether he’d spoken with the undercovers about those sales, and Rivera responded that he had, “afterwards” (Riv: A.227-28). The prosecutor then asked Rivera whether he’d had appellant’s name prior to the November 18, 2011 sale and he responded that he had (Riv: A.228).4 4At no time did the court instruct the jury that the proof of the May 11 & 18 sales was admissible only to rebut the inference that Rivera’s attribution of the November 18 sales 17 February 1, 2012 Together with UC 213, who was no longer an undercover officer, JD 90 approached appellant’s brother, Bobby Lane, in front of 1980 Park Avenue and asked for “Shorty” (UC 90: A.286-87). Lane was called JD Buddha by the undercovers (Riv: A.218). During her direct testimony, UC 90 testified that Lane gestured to the officers to follow him inside the building, and they went to the tenth floor (UC 90: A.287). There, Lane telephoned someone stating, “Your peeps are here” (id.). Lane then left, telling the undercovers to wait on the tenth floor (id.). On cross-examination, UC 90 was impeached with her Grand Jury testimony, at which time she had stated that Lane made the telephone call before they went to the tenth floor (UC 90: A.357). UC 90 testified that appellant then showed up, and the undercovers told appellant that they each wanted two dimes of crack (UC 90: A.288). Appellant then made a cell phone call and said, “times two” (id.). A few minutes later, Lane returned, handing two dimes to each undercover in return for $20 (UC 90: A.288- 89). This time, the crack was packaged in twists (UC 90: A.295; People’s exhibit 5; Criminalist Spartak Shehu: TT.255 ). Asked how she’d described the seller she identified as appellant to her field team, UC 90 testified that she’d told her field team that he was “male black, 20 to to Bobby Lane was only a typographical mistake, and that the proof should not be considered as evidence that appellant had a propensity for engaging in crack sales. 18 25 years old, 5'2", 5'3", 130 to 150" and “cross-eyed ... not missing an eye” (UC 90: A.292). Asked how she’d described Lane to her field team, UC 90 testified that he was “a male black, 20 to 25 years old, 5'7" to 5'9", approximately 135 to 155 pounds in weight,” and “missing an eye” (id.). UC 90 reported that, at the end of the transaction, appellant (347-245-xxxx) and his brother (917-292-xxxx) gave UC 90 their cell phone numbers for future transactions (UC 90: A.296-97). UC 90’s cell was 347-680-xxxx (UC 90: A.298). Phone records confirmed that on February 1, one inbound and one outbound call was made between the telephone number UC 90 reported appellant had given her, and the number she reported belonged to her own cell phone (Sprint Nextel records custodian Norman Clark: TT.303). The duration of both calls were zero seconds, indicating that the person dialed and disconnected before answering (TT.303).5 After the transaction, UC 90 returned to her vehicle and notified her field that there had been a positive buy, and gave a description of Lane as a “male black, 20 to 25 years old, 5'7" to 5'9", approximately 135 to 155 pounds, and “missing an eye” (UC 90: A.292, 339, 349). She described appellant as a “male black, 20 to 25 years old, 5'2" to 5'3", 130 to 150,” and “cross-eyed” (UC 90: A.292). UC 90 gave 5These two calls, as well as others alleged to have been made in connection with subsequent sales on March 9, 13, & 28, were made from cell-phone towers located within one-half mile of the Lincoln Houses (Tanya DeVulpillieres: TT.434). 19 the twists she had purchased to Detective Rivera for vouchering (UC 90: A.294; Rivera: A.185). March 9, 2012 UC 90 testified that, at about 5 pm, she called appellant when she was in the vicinity of the Lincoln Houses and told him that she wanted to buy crack. Appellant told her to meet him in front of 2101 Madison Avenue (UC 90: A.299- 301; UC 76: A.474-75). Phone records indicated that UC 90 placed three phone calls to the number she reported belonged to appellant: one at 4:59 pm lasting 32 seconds; one at 5:08 pm lasting 45 seconds; and one at 5:10 pm lasting four seconds (Clark: A.391). Within a few minutes, UC 90 and UC 76 arrived at that address, and appellant, whom they claimed to recognize from prior transactions, motioned them inside (UC 90: A.300-01; UC 76: A.475). They went to the staircase in the back of the building, where UC 90 allegedly purchased four black zips of crack for $40. Although UC 90 recalled that UC 76 purchased two zips for $20, UC 76 recalled that it was three (UC 90: A.303, 305; UC 76: A.475, 477, 479-50; People’s exhibits 7 & 12; Criminalist Pushpa Jethanandani: TT.267; Criminalist Melissa McLean: TT.263). After the sale, the undercovers radioed their field team that they made a positive buy, and who they’d made the purchase from, and turned the crack over to Detective Rivera for vouchering (UC 90: A.303-04; Rivera: A.188). UC 90 20 recalled that, at some point during the investigation, she learned appellant’s true name, but could not recall whether she knew it by this point (UC 90: A.303). March 13, 2012 UC 90 testified that, from the vicinity of the Lincoln Houses, she called appellant and told him that she wanted to buy crack (UC 90: A.306-07). Appellant told her to meet him in front of 1980 Park Avenue (UC 90: A.306). Phone records indicated that UC 90 made two phone calls to the number she reported belonged to appellant: one at 4:17 pm lasting 18 seconds; and the second at 4:26 pm lasting 13 seconds (Clark: A.391-92). When UC 90 arrived there a few minutes later with UC 93, appellant was waiting outside (UC 90: A.309). Appellant motioned for them to follow him inside (UC 90: A.309, UC 93: A.504). In the staircase at the back of the lobby, UC 90 asked appellant for four dimes. She handed appellant $40 of prerecorded buy money and appellant handed her four pink zips of crack (UC 90: A.306, 309; People’s exhibit 8; Criminalist Suman Patel: TT.287). UC 93 then asked appellant for four, gave him $40 of pre-recorded buy money, and received four bags of crack cocaine (UC 90: A.306; UC 93: A.504-05, 508; People’s exhibit 13; Jethanandi:TT.272). After leaving the building, UC 90 radioed her field team that she’d made a positive buy and from whom she’d made the purchase (UC 90: A.308). She later 21 gave the zips of cocaine to Detective Campos for vouchering (UC 90: A.308; Cam: A.243, 252). March 28, 2012 UC 90 claimed that she called appellant, using the number he’d given her, and told him that she wanted to purchase crack, and that he told her to meet him in front of 2101 Madison Avenue (UC 90: A.311-12; UC 219: A.414-15). Phone records indicated that UC 90 made two phone calls to the number she reported belonged to appellant: one at 1:43 pm lasting 32 seconds; and the second at 1:48 pm of zero seconds duration (Clark: A.392-93). Arriving there a few minutes after the call at about 2 pm with UC 219, appellant motioned for them to follow him inside the building (UC 90: A.311; UC 219: A.414-15). Once inside, UC 90 told appellant that she wanted five dimes for $40. She handed appellant $40 of prerecorded buy money, and he handed her five clear zips of crack (UC 90: A.311, 314-15; People’s exhibit 9, Tsang: TT.244). She was able to make this bargain, the undercover contended, because she had become a repeat customer (UC 90: A.313). UC 219 then purchased two clear Ziploc bags of crack cocaine for $20 (UC 90: A.311; UC 219: A.415, 418-19; People’s exhibit 11; Criminalist Aimee Wong: TT.229). 22 After the transactions, UC 90 radioed her field team that there had been a successful buy, who it was from, and both officers later turned over the crack to Detective Rivera for vouchering (UC 90: A.314; UC 219: A.418; Riv: A.192-93). March 30, 2012 UC 90 testified that she inadvertently crossed paths with appellant at about 6 pm while ghosting for another undercover, on another case as part of the Lincoln Houses investigation who was in the midst of making a purchase (UC 90: A.319, 321, 338). Appellant approached UC 90 and allegedly asked her what she was doing in the neighborhood, and she responded that she was “talking to friends,” and “kn[e]w people from the neighborhood” (UC 90: A.322). UC 90 testified that she believed that she had “no choice” other than to ask appellant to buy crack, because she felt uncomfortable with her response (UC 90: A.319-20, 324). Following the conversation, appellant told her to go into 2140 Madison Avenue, where she told appellant that she wanted three dimes of crack for $20. Appellant agreed. UC 90 handed appellant $20 of prerecorded buy money for three dimes of crack (UC 90: A.320, 326; People’s exhibit 10; Naik: TT.278). After leaving the building, UC 90 met with the primary undercover for the intended buy, who was making an unrelated buy. She told the field team that they’d both made 23 positive buys, hers from JD Shorty (UC 90: A.326). UC 90 gave Rivera the crack to voucher (Riv: A.195). The May 16, 2012 arrest Appellant was arrested at the rear of 2201 Fifth Avenue (Riv: A.196). Although appellant’s apartment was searched pursuant to a warrant following his arrest, no drugs, buy money, or cell phones were recovered (Riv: A.205). Verdict & Sentencing The jury found appellant guilty of all ten counts of criminal sale of a controlled substance in the third degree (A.615-21). The People filed a “Statement of Predicate Violent Felony Conviction for Drug Offender” alleging that on April 2, 2003 appellant had been convicted, in New York County of “Criminal Possession of a Weapon in the Third Degree (PL § 265.02[4]), a violent felony as that term is defined in Penal Law Section 70.02(1)” (A.59). The statement also alleged that the Penal Law §70.06(1)(b)(v) ten-year period was extended by appellant’s incarceration from April 14, 2003 to June 19, 2006 (id.). At sentencing, after the clerk read the predicate statement, the clerk asked appellant directly whether he wished to challenge any charge in the statement and appellant responded that he did not (A.625-26). The court then asked appellant directly whether he wished to challenge the constitutionality of the prior conviction, and appellant again responded directly that he did not (A.626). 24 The court then stated that appellant was “adjudicated a predicate felon” (A.626). The court sentenced appellant to ten concurrent 12-year terms with three years’ postrelease supervision (A.637). The Appellate Division affirmance While the First Department found that the lower court properly precluded defense counsel from asking Detective Rivera whether he was involved in three false arrests that became the basis for Federal lawsuits naming the detective, it did not address the lower court’s legal determination that those bad acts were irrelevant to this case (A.5-6). Instead, the court found that the lower court had “properly exercised its discretion in denying defendant’s request,” because “defendant failed to establish a good faith basis for eliciting the underlying facts,” as he “did not specify any factual allegations supporting the assertion that this detective had participated in false arrests” (A.5-6). Alternatively, the Appellate Division found that any error was harmless, because the detective had done no more than “supervise[] the case and provide[] an overview of the investigation” (A.6). Addressing appellant’s challenge to the suggestive photo array, the First Department concluded that the array was not unduly suggestive because appellant “and the other participants were reasonably similar in appearance” (A.6). Without mentioning appellant’s argument that he was singled out for identification because 25 the identifying officer had described the suspect as having “one eye that’s kind of off,” and appellant’s photo was the only one in the array with an unusual eye condition, the Appellate Division found that the “difference between the defendant’s photo and the other photos” were “not sufficient to create a substantial likelihood that defendant would be singled out for identification” (A.7). As for appellant’s challenge to his status as a second felony drug offender whose prior conviction was a violent felony, the court cited its previous decisions in People v. Thomas, 122 A.D.3d 489 (2014), and People v. Bowens, 120 A.D.3d 2014), where it had rejected “similar ... arguments,” and concluded that the adjudication was “proper” (A.7) ARGUMENT POINT I THE COURT ERRONEOUSLY PRECLUDED DEFENSE COUNSEL FROM CROSS-EXAMINING THE LEAD DETECTIVE ABOUT HIS INVOLVEMENT IN THREE FALSE ARRESTS THAT BECAME THE SUBJECT OF FEDERAL LAWSUITS, THEREBY DEPRIVING APPELLANT OF HIS RIGHTS TO DUE PROCESS AND TO CROSS- EXAMINE AND CONFRONT WITNESSES. US CONST., AMENDS. VI, XIV; NY CONST., ART. I, §6. Detective Arnaldo Rivera was not only the detective leading and supervising the year-long investigation into appellant’s alleged crack-selling operation in the Lincoln Houses, he was also the People’s lead witness. Through Rivera, the prosecutor established a framework for the People’s case against appellant, setting 26 the scene of the investigation, describing the roles of the undercovers and introducing them by number, identifying appellant and his brother as the men who had sold drugs to the undercovers during the operation, walking the jury through each of the sales, and detailing the events leading up to appellant’s arrest. The veracity and accuracy of Rivera’s account was particularly important because one of the undercovers would be unavailable to testify, having attempted suicide as a result of the stresses of her work, and having been reassigned to administrative- only duty. Rivera’s credibility, and the precision of his account, were critical. Defense counsel sought to ask Detective Rivera — the lead case detective — about the facts underlying three Federal false-arrest lawsuits. The detective’s involvement in prior false arrests was relevant to appellant’s case, defense counsel contended, because appellant insisted that he had been falsely arrested. Defense counsel recognized that he could not ask the detective about the lawsuits themselves, even though two had been settled for tens of thousands of dollars. He planned only to ask the detective about the underlying facts, and conceded he would be bound by the detective’s answers. The court agreed that defense counsel had a good faith basis for inquiring into the facts giving rise to the false-arrest claims, but ruled that the testimony would be irrelevant, and forbid counsel from asking even a single question about any of the prior false-arrests. Because Detective Rivera was a critical witness, and the false-arrest allegations were relevant 27 impeachment, the court’s ruling was not only error, but also harmful error, and appellant was deprived of his constitutional rights to due process, and to cross- examine and confront witnesses. Accordingly, his convictions must be reversed and a new trial ordered. A. The applicable law: defendant’s right to confront and impeach adverse witnesses. The “primary interest secured” by the Sixth Amendment right to confrontation is “the right of cross-examination.” Davis v. Alaska, 415 U.S.308, 315 (1974); People v. Eastman, 85 N.Y.2d 265, 274 (1995)(“the fundamental right embodied in the Confrontation Clause is the right to cross-examine one’s adverse witness”); see, US Const. 6th Amend. [“(t)he accused shall enjoy the right ... to be confronted with the witnesses against him”]; NY Const., art. I, § 6 [“the party accused shall be allowed to ... be confronted with the witnesses against him or her”] ).6 Cross-examination’s constitutional preeminence reflects its irreplaceable role in the truth-seeking process: it is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” People v. Chin, 67 N.Y.2d 22, 27 (1986), 6To the extent that the Sixth Amendment provides no recourse for appellant arising from the limitations placed on cross-examination by the court below, those rights were nonetheless guaranteed by New York State common law and our State Constitution. See, People v. McCray, 23 N.Y.3d 193, 204 (2014)(Rivera, J., dissenting)(concluding a broader obligation to disclose favorable evidence than the Federal standard articulated in Pennsylvania v. Richie, 480 U.S. 39 (1987) was warranted on the basis of “the broader guarantees provided by our State Constitution, and because of the important role of cross-examination to ensuring the rights of the defendant and the truth seeking functions of our criminal justice system”) 28 quoting, 5 Wigmore, Evidence §1367, at 32 [Chadbourn rev. 1974]; Davis v. Alaska, 415 U.S. at 316 (Cross-examination is the “principal means by which the believability of a witness and the truth of his testimony are tested”). A defendant’s constitutionally secured right to cross-examine adverse witnesses is not limited to “delving” into the account provided by the witness in their direct testimony, but extends to impeaching or discrediting the witness as well. Id.; see, Pennsylvania v. Ritchie, 480 U.S. 39, 50 (1987)(right to cross-examine “includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.”); People v. Gissendanner, 48 N.Y.2d 543, 548 (1979)(“it should be too obvious to need reiteration that restrictions on the right to cross-examine key prosecution witnesses can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of a reasonable doubt as to,” citing Davis v. Alaska). Impeachment’s overarching purpose is to show that a witness’s testimony is not reliable. See, People v. Wise, 46 N.Y.2d 321, 325 (1978); see People v. Walker, 83 N.Y.2d 455, 461 (1994)(“impeachment is a particular form of cross- examination whose purpose is ... to discredit the witness and to persuade the fact finder that the witness is not being truthful.”). The Sixth Amendment right to confrontation protects a defendant’s right to impeach adverse witnesses from “improper restrictions on the types of questions that defense counsel may ask 29 during cross-examination.” Pennsylvania v. Ritchie, 480 U.S. at 53; Davis v. Alaska, 415 U.S. 308 (1974)(shield law designed to preserve anonymity of juvenile defender set aside when it ran afoul of a defendant’s right of confrontation; defendant should have been permitted to show bias of state’s crucial witness by eliciting testimony concerning witness’s juvenile record). While impeachment can take many permissible forms, impeachment by prior bad acts probative of the witness’s character for truthfulness is relevant and permissible. People v. Walker, 83 N.Y.2d at 461; see, Fed.R.Evid. 608(b)(party may impeach a witness by cross-examining about “specific instances of conduct” if they are “probative of the character for truthfulness”). It is hornbook law that “all witnesses may be cross-examined about any immoral, vicious or criminal act which may reflect on their own character and show them to be unworthy of belief.” Jerome Prince, Richardson on Evidence, § 6-406 at 389 [11th ed. 1995]; Fisch on New York Evidence, § 455 at 295 [2d ed. 1977](“A witness in a civil or criminal case ... may be impeached by proof of specific instances of misconduct which tend to discredit his character”). This State has long recognized that a witness’s prior bad acts are relevant to credibility. See, People v. Webster, 139 N.Y. 73, 84 (1893)(“It is now an elementary rule that a witness may be specially interrogated, upon cross-examination, in regard to any vicious or criminal act of his life, and may be compelled to answer them”); 30 People v. Sorge, 301 N.Y.198, 200 (1950) (“A defendant, like any other witness, may be ‘interrogated upon cross-examination in regard to any vicious or criminal act of his life’ that has a bearing on his credibility as a witness”); People v. Sandoval, 34 N.Y.2d 371, 376 (1974)(“Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility”); People v. Smith, 18 N.Y.3d 588, 593 (2012)(“the concerns observed by the Sandoval Court remain relevant”). Not all prior bad acts are created equal. Acts of impulsive violence or addiction may “may have lesser probative value as to lack of in-court veracity.” People v. Sandoval, 34 N.Y.2d 371, 376-77 (1974). But prior bad acts that show a “determination deliberately to further self-interest at the expense of society or in derogation of the interests of others,” go “to the heart of honesty and integrity.” Id. at 377. A party’s right to impeach a witness is not limited to questions about the witness’s prior crimes or “like misconduct.” People v. Walker, 83 N.Y.2d 455, 461 (1994). A witness’s prior conduct may be a proper subject for impeachment on cross-examination where it “demonstrates an untruthful bent or ‘significantly reveal[s] 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 31 society.’” Id. at 461, quoting People v. Coleman, 56 N.Y.2d 269, 273 (1982); see, e.g., Walker, 83 N.Y.2d 455 (“witness’s use of an alias relevant to credibility); Coleman, 56 N.Y.2d 269 (witness’s involvement in publication of pamphlets advocating tax avoidance permissible grounds for impeachment). This Court has most often been called upon to defend and define the use of prior bad acts as impeachment in the context of a defendant’s decision to testify. See, e.g., People v. Sandoval, 34 N.Y.2d 371 (1974). But constitutional and common law protections insure that a defendant’s right to impeach adverse witnesses is superior to the People’s. First, the due process assurance of reciprocity protects the parallel right of a defendant to impeach prosecution witnesses with their prior bad acts bearing on credibility. See, Wardius v. Oregon, 412 U.S. 470, 472 (1973)(“one of the essential ingredients of due process of law is reciprocity,” demanding that defendant be afforded the same procedural rights at the prosecution). Second, the Sixth Amendment right to confrontation is defendant’s right, not the People’s, and it assures defendant the right to confront and impeach the witnesses against him. Davis v. Alaska, 415 U.S. at 316. Third, while defendants are offered special protections when they are the witness being cross- examined, those protections do not apply to non-defendant witnesses. People v. McGee, 68 N.Y.2d 328, 332 (1986)(“Sandoval rationale applies only when the witness to be cross-examined is also the defendant on trial, for only then can the 32 questioning result in improper conviction on the basis of inadmissible evidence of prior bad acts. Thus, we have held that Sandoval does not apply to a witness who is not the defendant”). While the Confrontation Clause guarantees the defense a right to cross- examine adverse witnesses, its protection is not absolute. People v. Allen, 50 N.Y.2d 898 (no per se rule requiring reversal whenever defendant’s right to cross- examine a prosecution witness with respect to prior criminal acts is curtailed). Broad prohibitions foreclosing cross-examination about issues central to assessment of a witness’s reliability are forbidden. United States v. Maldonado- Rivera, 922 F.2d 934, 955 (2d Cir. 1990). “[R]easonable limits,” taking into account “such factors as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant,” are allowed. Olden v. Kentucky, 488 U.S. 227, 232 (1988), quoting Delaware v Van Arsdall, 475 U.S. , 673, 679 (1986). “Normally, the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” Pennsylvania v. Ritchie, 480 U.S. at 53; see, People v. Corby, 6 N.Y.3d 231 (2005)(court did not abuse its discretion in limiting cross-examination about witness’s motive to lie where bias and motive to lie were “apparent from the accumulated testimony and evidence,” and precluded questioning “would have been cumulative and of little probative value,” and would have “caused jury speculation and confusion”). “[T]he 33 Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985)(italics in original). B. Appellant should have been permitted to impeach Detective Rivera by asking him about his involvement in three false arrests that became the subject of federal lawsuits. 1. The court erred when it entirely precluded defense counsel from asking Detective Rivera whether he had previously falsely arrested three defendants in separate incidents on the grounds that those matters were “irrelevant to this case.” Here, the court deprived appellant of the “wide latitude” for cross- examining Detective Rivera that the Confrontation Clause guaranteed him. When defense counsel alerted the court that he planned to cross-examine Detective Rivera about the facts underlying three false-arrest lawsuits in which the detective had been a named defendant, the court ruled that the questioning was irrelevant. Defense counsel responded that he was entitled to confront any witness, whether they were a police officer or not, with prior bad acts that they had committed, because those prior bad acts were relevant to the witness’s credibility. The court stood by its ruling. The court’s conclusion that the evidence would have been irrelevant was wrong: defendant was entitled to impeach Detective Rivera. Here, the detective’s prior involvement in false arrests, as counsel argued, was relevant to his credibility. 34 Claims for false arrest under New York law or federal law are “substantially the same.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Both require a showing that a defendant was arrested without probable cause, i.e., officers effectuated an arrest without “reasonably trustworthy information ... to warrant a person of reasonable caution” to believe “that the person to be arrested has committed or is committing a crime.” Id., citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979). Had Detective Rivera revealed that he had previously arrested one or more persons without reasonable cause to believe that they had committed a crime, a juror would have been more likely to discredit his testimony, because a false arrest would show that Rivera was likely to “further his own self-interest ... in derogation of the interests of others.” Sandoval, 34 N.Y.2d at 377. More, as defense counsel argued, there was a “direct link” to the defense, and the questions went to the heart of the defense, because the lawsuits rested on allegations that Detective Rivera “arrested people who committed no crimes,” and it was the defense position that appellant was “falsely arrested” (A.128-30). Because defense counsel was deprived of the opportunity to ask Detective Rivera whether he was involved in three false arrests, and probe the underlying circumstances of those false arrests, we do not know whether Detective Rivera would or would not have admitted involvement. But prejudice and relevance must be assessed as if “the damaging potential of the cross-examination were fully 35 realized.” Delaware v. Van Arsdall, 475 U.S. at 684. In other words, the reviewing court must assess relevance as if Detective Rivera had admitted that he had been involved in three false arrests. The testimony would have been irrelevant only if Detective Rivera denied any involvement in false arrests. But since, as the court found, defense counsel had a good faith basis for asking the question, he was allowed to ask about the prior arrests and whether they had been proper. Such an admission would not merely have been relevant, but devastatingly relevant. The Appellate Divisions have found similar evidence relevant and impeachment with that evidence permissible. See, e.g., People v. Daley, 9 A.D.3d 601, 602 (3d Dep’t 2004)(court improperly limited defense counsel’s cross- examination of correction officer about “a federal lawsuit that had been brought against the officer by an inmate who asserted that the officer had assaulted him”); People v. Jones, 193 A.D.2d 696, 697 (2d Dep’t 1993)(court improperly limited cross-examination of police officer “about various civil actions brought against him for alleged police brutality, false arrest, and ... excessive force”). While the First Department has affirmed limitations on the cross-examinations of police officers, it has not done so on relevance grounds. See, People v. Ingram, 125 A.D.3d 558, 558-59, (defendant improperly sought to question officer about lawsuit itself, and not the underlying acts, and failed to establish good faith basis for questioning), leave granted 26 N.Y.3d 930 (2015)(Read, J.); People v. Smith, 36 122 A.D.3d 456, 456-57 (2014)(defendant not entitled to elicit fact that lawsuits had been settled and the dollar amounts of settlements), leave granted 24 N.Y.3d 1123(2015)(Pigott, J.);.People v. Andrews, 54 A.D.3d 618, 618-19 (2008)(mere existence of lawsuit “not a proper subject for cross-examination,” and counsel failed to establish a good faith basis for eliciting underlying facts). To the extent that Ingram, Smith, and Andrews rest on the underlying premise that an officer’s prior involvement in false arrests is irrelevant, that premise is incorrect and those cases should not be followed. People v. Garrett, 23 N.Y.3d 878 (2014), cited by the People in their brief to the Appellate Division, does not hold otherwise. Garrett held that the People have no Brady obligation to disclose a police witness’s involvement in an unrelated federal lawsuit where they have no actual knowledge of the litigation. Addressing the allegations in the civil lawsuit that accused the police witness of coercing a confession, the Court recognized that the allegations were “favorable to the defendant as impeachment evidence,” and “clearly had an ‘impeachment character’ that favored the defense.” Id. at 886. While this Court later stated that the unrelated case was only “tangentially relevant” to the case on trial, it did so wholly in the context of its “materiality” analysis. Id. at 892-93. Materiality and relevance are two entirely different concepts: “impeachment evidence may be considered favorable to defendant even if it is not material to the defendant’s case.” Id. at 886; 37 See United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)(impeachment evidence is material only when the witness “supplied the only evidence linking the defendant(s) to the crime,” or “where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case” [internal citations and quotations omitted]). Since the question of materiality in Garrett turned on the question of whether there was a reasonable probability that failure to provide the information to the defense affected the outcome of the trial, and the prejudice here is measured by the question of whether there was a reasonable possibility that the refusal to allow defense counsel to impeach Detective Rivera with the facts underlying the three false arrest lawsuits affected the verdict, this Court’s comments about relevance do not speak to the issue here. Thus, because the facts underlying the prior lawsuits would have been relevant impeachment evidence, the court improperly forbid defense counsel from inquiring about them. 2. The Appellate Division was without jurisdiction to affirm on any ground other than that inquiry into Detective Rivera’s involvement in the false arrests was irrelevant. The Appellate Division did not address the trial court’s justification for precluding defense counsel from cross-examining Detective Rivera with his prior involvement in false arrests, i.e., that the questioning would have been irrelevant. Instead, the Appellate Division found that the court had “properly exercised its 38 discretion,” because “defendant failed to establish a good faith basis for eliciting the underlying facts” in that “defendant did not specify any factual allegations supporting the assertion that this detective had participated in false arrests.” Because the trial court specifically found that defense counsel had established a good faith basis for the questions, both the Appellate Division, and this Court, are barred from affirming on this alternate ground. CPL §470.15(1) bars the Appellate Division, and CPL §470.35 bars this Court, “from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court.” People v. Concepcion, 17 N.Y.3d 192, 195 (2011)(emphasis in original). Those provisions are “legislative restriction[s]” on the power of appellate courts “to review issues either decided in an appellant's favor, or not ruled upon, by the trial court.” Id., quoting People v. LaFontaine, 92 N.Y.2d 470, 474 (1998). This jurisdictional proscription extends not only to issues expressly decided in defendant’s favor in the trial court, but to issues not decided as well. People v. Ingram, 18 N.Y.3d 948, 949 (2012). Since the only ruling adverse to appellant was the court’s determination that any questions about Detective Rivera’s involvement in the false-arrest lawsuits were irrelevant, that is the only ground upon which the court’s ruling may be affirmed. Since that ruling was “not adverse” to him, i.e., it was in his favor, it is not reviewable. 39 Because the trial court specifically found that appellant had established a good faith for defense counsel’s questions, it was particularly inappropriate for the First Department to affirm on the basis that counsel did not have good faith to pursue that line of inquiry because “defendant did not specify any factual allegations supporting the assertion that this detective had participated in false arrests.” By 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. By faulting defense counsel for failing to make a specific record which the trial court ruled was unnecessary, the First Department violated both the letter and spirit of LaFontaine. This Court has the power to review the trial court’s determination that the questions about Detective Rivera’s involvement the false arrests were irrelevant (see. subpoint b(1), ante), but cannot affirm on the alternate ground that the trial court rejected or did not reach. 3. Because the court exercised no discretion when it precluded defense counsel from impeaching Detective Rivera with his involvement in false arrests, the court’s ruling cannot be affirmed as an appropriate exercise of discretion. The Sixth Amendment and State law allow the trial court some discretion to limit cross-examination of a prosecution witness, weighing the probative value of such evidence against the possibility that it might “confuse the main issue and mislead the jury ... or create substantial danger of undue prejudice, to one of the 40 parties. People v. Corby, 6 N.Y.3d 231, 234 (2005); but cf. People v. Colavito, 87 N.Y.2d 423, 429 (1996)(because all relevant evidence is “prejudicial,” in the sense that it tends to prove the case against the party against whom it is admitted, “[m]erely invoking the word ‘prejudice’ does not, in and of itself, preclude admission of relevant evidence unless some evidentiary prohibition is violated”). That discretion may have permitted the court to place reasonable limits on defense counsel’s inquiry into the detective’s involvement in the false arrests, had it balanced the probative value that the questions would have shed on the detective’s credibility against the danger that the jury would be confused or misled. Where a court possesses discretion, it commits error by failing to exercise it — such as by issuing categorical rulings. In People v. Williams, 56 N.Y.2d 236 (1982), for example, this Court found that the trial court “abdicate[d] its responsibility” in basing its Sandoval ruling on only one factor — the defendant’s willingness to place his interests above those of society. Id. at 237. As the Williams Court put it, where an exercise of discretion is “left to the trial court,” “it is . . . an exercise of discretion that should be performed by the trial court.” Id. at 240 (emphasis in original). A trial court also errs when it wrongly perceives that it has no discretion to exercise. In People v. Cronin, 60 N.Y.2d 430 (1983), for instance, the Court determined that the trial court, employing a wrong legal standard, 41 improperly “felt constrained to draw the line” at a psychiatrist’s expression of opinion concerning the defendant’s intent. Id. at 433. Here, too, the court failed to exercise the requisite discretion. The court forbid defense counsel from impeaching Detective Rivera on the grounds that the false-arrest allegations were irrelevant, a legal determination not involving discretion. People v. Scarola, 71 N.Y.2d 769, 777 (1988)(“Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence”); People v. Buie, 86 N.Y.2d 501, 509 (1995)(All “relevant evidence is admissible unless its admission violates some exclusionary rule”). The court’s categorical ruling — “I cannot allow that. It’s irrelevant to the case” — reflected the absence of any considered, judicial, judgment, and was legal error. For an example of an appropriate exercise of discretion, one need look no further than the Sandoval hearing conducted by the trial court below. After listening to the bad acts and convictions that the prosecutor would want to question appellant about should he take the stand (A.116-19), and defense counsel’s request to “balance” the interest of his client in testifying against the right of the prosecutor to address the prior bad acts, the court issued a compromise ruling permitting the People to inquire about the fact that he had been convicted of four felonies (A.120), but not the underlying facts of those felonies (A.120-21). 42 Appellant need not demonstrate that an actual exercise of discretion would have resulted in a different conclusion. See Cronin, 60 N.Y.2d at 352-53 (suggesting that the trial court “could have found [the testimony in question] admissible”); Williams, 56 N.Y.2d at 240 (“This is not to say that any particular conviction in this case should have been excluded or that cross-examination should have been limited to only a certain number of past convictions.”); People v. Negron, _ N.Y.3d _, _, 2015 WL 7355828, 2015 NYCA Slip Op. at 9 (Nov. 23, 2015)(where court justified exclusion of evidence on relevance grounds and not because probative value outweighed potential for undue prejudice or jury confusion, reversal required if a finding that evidence would have been admissible was “permissible” after appropriate balancing). Still, an assessment of relevant factors would have permitted defense counsel at least some inquiry into the facts underlying one or more of the false arrest lawsuits. While the Confrontation Clause permits tailored limitations on cross-examination, it disfavors blanket prohibitions. See, Davis v. Alaska, 415 U.S. 308 (1974). Here, without allowing some inquiry into the detective’s prior involvement in the conduct underlying the false arrest lawsuits, defendant had little basis for confronting the detective’s credibility. Since the detective was not protected by Sandoval, or its rationale, the risk that the jury would improperly find he had a propensity to falsely arrest was not a consideration for the court. People 43 v. Allen, 67 A.D.2d 558, 560 (2d Dept’ 1979), aff’d for reasons stated in opinion below, 50 N.Y.2d 898 (1980). Balanced against appellant’s constitutional right to confront Detective Rivera, the risk that the jury would be confused would not have been an adequate basis to foreclose questioning about the false arrests. In short, the court’s blanket refusal to allow defense counsel to question the detective about the false arrests lacked legal basis and constituted an abdication of its judicial responsibility. C. Appellant’s Confrontation Clause and State law claims are preserved. Before the trial began, defense counsel told the court that he planned to question Detective Rivera regarding the facts underlying three false-arrest lawsuits in which Rivera was a named defendant. He pointed out that two of the cases had been settled, in the amounts of $30,000 and $75,000. (A.131-32). Counsel stated that he would not ask about Detective Rivera’s status as a named defendant, but whether he had made false arrests of the persons named as plaintiffs in the lawsuits (A.129). Counsel stated that cross-examination on these issues went to Rivera’s “character and credibility” (A.131). When the court ruled that the questioning would be irrelevant, defense counsel insisted that he could “confront” the police officer about “any prior vicious bad act, immoral act or malicious act that they have committed” (A.130). By alerting the court that he wanted to “confront” detective Rivera on cross-examination about his involvement in prior false arrests, 44 because those bad acts were relevant to his credibility, defense counsel preserved both his state law and constitutional claims. See, People v. Garcia, 25 N.Y.3d 246, 252 (2015)(defendant’s Confrontation Clause claim preserved, even though counsel never cited constitution or right to confrontation, where counsel objected on ground that witness whose testimony was introduced was not present). D. The court’s total preclusion of cross-examination into the facts underlying the false-arrest lawsuits was not harmless. The court’s erroneous ruling was not harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. at 680-81; People v. Crimmins, 36 N.Y.2d 230, 237 (1975). The harmless-beyond-a-reasonable-doubt standard requires a reviewing court to determine first, whether the evidence was overwhelming, and second, even if it was overwhelming, whether, in the absence of such error and assuming the full damaging potential of cross-examination were realized, there is no reasonable possibility that the result would have been different. People v. Schaeffer, 56 N.Y. 448, 454-55 (1982). First, because the evidence was not overwhelming, this Court need not even consider the impact that the error might have had on the verdict. Crimmins, 36 N.Y.2d at 241 (unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error”). While the People’s case involved a series of undercovers and chemists, claiming that appellant had sold crack on ten occasions, there was no 45 physical evidence linking appellant to a single sale. The People used prerecorded buy money for each of the ten alleged purchases from appellant but not a single bill was recovered. Detective Rivera catalogued the formal measures undertaken during this year-long buy operation to build a case against appellant, yet not a single video or audio recording was made that might have shown appellant actually engaging in a sale. Despite the purported care taken to build a case, the People made no effort to test a single ziplock, glassine, or twist of cocaine to see if fingerprints on them matched appellant. Before appellant’s arrest, the police executed a search warrant in appellant’s apartment in the Lincoln Houses from which he was allegedly selling drugs, yet no drugs, buy money, paraphernalia, or any other evidence linking him to the alleged sales was recovered. Though the People presented proof that undercovers repeatedly made phone calls to a single phone number to set up the drug sales, and UC 90 claimed that it was appellant’s cell phone number, nothing connected appellant to that phone beyond the undercover’s word. The phone-record custodian’s testimony that the undercover’s calls were routed through a cell tower in the vicinity of the Lincoln Houses hardly furthered the case against appellant. The People’s identification evidence was less than overwhelming as well. While the People presented the eyewitness testimony of four undercovers who claimed that appellant had sold them drugs, the People’s own witnesses did not 46 rule out the possibility of misidentification. Detective Rivera, for example, admitted that he had stated that it was appellant’s brother, Bobby Lane, who had made two of the crack sales in his sworn search-warrant application. Lane was not only physically similar to appellant, but had a similar left-eye condition that could reasonably have led the officers to confuse the two men. That Rivera admitted he’d confused the two men in the report about the November 18 sale reflects the possibility that the undercovers confused the two men on other occasions as well. Because the evidence was less than overwhelming, this Court need not even consider the harm caused by the errors described above. Second, even if this Court concludes that the evidence was overwhelming, it can only conclude that the court’s errors were harmless if there is no reasonable possibility that the denial of an opportunity to cross-examine Rivera about prior false arrests affected the verdict. In making this evaluation, this Court must consider “the importance of the witness’s 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-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684. Curtailment of cross-examination is harmful when it keeps important and relevant facts from the jury. See Gordon v. United States, 344 U.S. 414, 423 (1953); People v. Ashner, 190 47 A.D.2d 238, 247 (2d Dept. 1993). Where examination of a key point is denied, it is “constitutional error of the first magnitude.” Brookhart v. Janis, 384 U.S. 1, 3 (1966). Because Rivera’s testimony was critical to the People’s case, had the defense been able to establish that he had a history of false arrests, the effect would have been devastating. Rivera was not only the detective leading and supervising the year-long investigation into appellant’s alleged crack-selling operation in the Lincoln Houses, he was also the People’s lead witness. Rivera’s veracity and the accuracy of his account were particularly important because one of the undercovers would be unavailable to testify, having attempted suicide as a result of the stresses of her work, and having been reassigned to administrative-only duty. While the undercover did not testify, Rivera was permitted to recount her identifications to the jury. Had Rivera’s credibility been shown to be suspect, there is a reasonable possibility the jury would have reached a different verdict. * * * Because the court’s erroneous ruling forbidding inquiry into the detective’s record of false arrests was preserved and not harmless, this Court must reverse appellant’s convictions and grant him a new trial on all charges. 48 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 LINEUP WAS UNDULY SUGGESTIVE. US CONST. AMEND. XIV; NY CONST. ART. I, § 6. UC 93 described the man who had allegedly sold crack to her on March 13, 2012, as a “short male black. Has one eye that’s kind of off. Goes by the name of Shorty.” When preparing a photo array to present to UC 93 two months later, the police neither found someone else with a similar condition, nor took any steps to ameliorate the difference between appellant and the other five photo array participants. As the court recognized, appellant’s eye condition caused his photo to be the only one where the subject wasn’t looking into the camera. Because appellant’s photo was the only one in the array to meet the given description — i.e., only his photo featured an obvious eye condition — the array unfairly singled him out as the suspect and was unduly suggestive. Accordingly, this Court should reverse the court’s ruling denying suppression of the photo array, vacate appellant’s conviction and order a new trial to be preceded by an independent source hearing. US Const. Amend. XIV; N.Y. Const. Art. I, §6. Unduly suggestive pretrial identification procedures violate due process and are not admissible to determine the guilt or innocence of an accused. United States 49 v. Wade, 388 U.S. 218 (1967). Suggestive identification procedures “increase the dangers inhering in eyewitness identification. People v. Marshall, _ N.Y.3d _, _, 2015 WL 9090609, 2015 NYCA Slip Op. 195 at 9 (Dec. 17, 2015), quoting Wade, 388 U.S. at 229. Even the most correct photographic identification procedures pose the danger that a witness may make an incorrect identification. Id., quoting Simmons v. United States, 390 U.S. 377, 383 (1968). The People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure; it is then the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive. People v. Berrios, 28 N.Y.2d 361 (1971). Where suggestiveness is shown, it is again the People’s burden to demonstrate the existence of an independent source by clear and convincing evidence. People v. Rahming, 26 N.Y.2d 411, 417 (1970). “When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pre-trial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process.” Marshall, _ N.Y.3d at _, 2015 NYCA Slip Op. 195 at 14. 50 An identification procedure is unduly suggestive if there is a “substantial likelihood” that the defendant will be “singled out for an identification.” People v. Chipp, 75 N.Y.2d 327, 336 (1990). While there is no requirement that a defendant be surrounded by people of “nearly identical ... appearance,” id., there may not be any “characteristic or feature that would orient the viewer to select defendant.” People v. Figueroa, 166 A.D.2d 165 (1st Dep’t 1990). There are many ways that an identification procedure can unduly suggest a suspect to a witness. See Wade, 388 U.S. at 232-33. Perhaps the most common, and the one most relevant here, is by arranging a procedure where only the suspect meets the prior description given by the witness. See, e.g., People v. Owens, 74 N.Y.2d 677, 678 (1989) (finding suggestive line up in which defendant was the only person “wearing the distinctive clothing—a tan vest and a blue snorkel jacket—which fit the description of the clothing allegedly worn by the perpetrator of the crime”); People v. Bady, 202 A.D.2d 440, 440 (2d Dep’t 1994) (reversing conviction when defendant was only one in line up wearing red shirt, which figured prominently in victim’s description); People v. Carolina, 184 A.D.2d 520, 521 (2d Dep’t 1992) (finding line up suggestive when only defendant had haircut witness described); People v. Davis, 169 A.D.2d 508, 508 (1st Dep’t 1991) (finding suggestive line up in which defendant was only person wearing clothing similar to that described by complainant). 51 A suspect is impermissibly singled out for identification if he is the only participant with a distinctive body feature that figured prominently in the witness’s description. For example, in People v. Perry, 133 A.D.3d 410 (1st Dep’t 2015), the Appellate Division suppressed identifications from a photo array and lineup where the complainant described the perpetrator of a robbery as having “one distinctive feature: a ‘deformed right eye.’” Id. At the suppression hearing, the detective who prepared the photo array and lineup admitted that defendant was the only participant in both who had an “apparently defective eye.” Id. The court concluded that, because only the defendant — in both the array and the lineup — matched the key aspect of the perpetrator’s description, the procedures were unduly suggestive. Id. The court concluded that the practical difficulty of finding fillers with “similarly defective eyes,” could have been solved by concealing the defective eye with a hand over the eye or a patch. Id. The court’s decision in People v. Tatum, 129 Misc. 2d 196 (Sup. Ct. Queens Co. 1985), is to the same effect. There, the court suppressed a lineup identification where only the defendant had a glass eye because both witnesses stressed in their descriptions that the perpetrator had a “crooked eye” and a “funny” eye. Similarly, in People v. Evans, N.Y.L.J., Aug. 23, 1989 (Sup. Ct. Bx. Co.), the court suppressed a line up identification where the suspect was the only participant with 52 a lazy eye, finding that the police could have had the line up participants wear eye patches or cover their eyes with their hands. Here, UC 93 allegedly purchased crack on March 13, 2012. On the day of the sale, UC 93 described the seller to Detective Rivera as a “short male black. Has one eye that’s kind of off. Goes by the name of Shorty” (A.91). Because, aside from his physical stature and race, the seller’s eye problem was the only physical aspect of her description, it was the characteristic stuck out to her most. The photo array presented to UC 93 two months later included six photographs. But appellant’s photo was the only one displaying a participant with an eye issue (A.95; People’s hearing exhibit 1, added to record on appeal). Detective Rivera testified that it would not have been practical to select photos of only people with eye issues due to the technological limitations of the photo system (A.95). No further alterations were made to the photos. As the court recognized, appellant’s eye condition caused his photo to be the only one where the subject wasn’t looking into the camera. Detective Rivera’s claim that it would have been impossible to find a filler with a similar eye condition is demonstrably false. Appellant’s brother, Bobby Lane, was not only physically similar to appellant, but suffered from a similar eye condition in his left eye. Because Lane was also a subject of the Lincoln Houses investigation, Rivera had his photo (A.165-66; People’s trial exhibit 3). Had Rivera 53 been concerned about creating a fair array, he would have included Lane’s photo. Even if Rivera did not think to include Lane’s photo in the array, he could have minimized the possibility that UC 93 would choose appellant’s photo because of his eye condition by using a black marker or white-out to color over the left eyes in each of the array’s photos. Instead, the police did nothing to mitigate appellant’s unusual appearance, whether by finding a photo of someone with a similar eye condition or by putting a patch over each of the array participant’s left eyes See, e.g., People v. Perry, 133 A.D.3d 410 (where witness described perpetrator as having “one distinctive feature: a ‘deformed right eye,’” defendant was the only participant in photo array and lineup with “apparently defective eye,” and police made no effort to mask eye condition, both identification procedures found unduly suggestive); People v. Boone, 251 A.D.2d 423 (2d Dep’t 1998) (finding line up was not unduly suggestive, even though defendant had distinctive facial scar, because defendant was positioned to hide scar from line up viewer); People v. Riley, 158 A.D.2d 559, 560 (2d Dep’t 1990) (finding line up not unduly suggestive where any disparity between defendant’s and fillers’ beards was reduced by having the participants hold cards beneath their chins); cf. People v. Glaspie, 170 Misc.2d 828, 832 (Sup. Ct. Queens Co. 1996) (finding use of carbon paper to stimulate facial hair on clean-shaven fillers avoided suggestiveness due to disparities in facial hair). 54 People v. Tatum demonstrates the point.129 Misc. 2d 196 (N.Y. Sup. Ct. 1985). There, defendant had a glass eye, and was the only lineup participant with a noticeable eye condition. The court found the lineup unduly suggestive, because the defendant “was the only one with such a ‘grossly dissimilar appearance.’” 129 Misc.2d at 204, quoting Wade, 388 U.S. at 233. As here, the police in Tatum sought to explain the absence of fillers in the identification procedure with the same distinguishing characteristic, because it would have been difficult to find fillers with distinguishing eye conditions. The court rejected this defense as missing the point, because the police could easily have ameliorated the undue suggestiveness with an eye patch, or by asking the fillers to place a hand over their eye. Here, similarly, the police could easily have placed a piece of paper over the left eye in each photo. The photo array here is easily distinguishable from the small subset of cases where this Court has upheld identification procedures notwithstanding a singular characteristic of defendant. See People v. Gourdine, 223 A.D.2d 428 (1st Dep’t 1996); People v. Herrera, 198 A.D.2d 9 (1st Dep’t 1993); People v. Williams, 197 A.D.2d 421 (1st Dep’t 1993). In each, this Court determined that the singularity did not result in undue suggestiveness because the record indicated that the witness did not utilize or emphasize the singularity in his pre-identification 55 description of defendant. Here, Rivera testified that UC 93’s brief description prominently featured appellant’s eye condition. The issue was preserved by defense counsel’s argument at the close of the Wade hearing that the photo array was unduly suggestive, because appellant was “looking off and away…. He’s the only one who’s doing so” and noting that UC 93 had mentioned “someone with eye or vision issues” in her description two months earlier (H: 26-27). The failure to suppress the photo array identification by UC 93 was not harmless beyond a reasonable doubt. First, as discussed in subpoint I(A), because the evidence was not overwhelming, this Court need not even consider the impact that the error might have had on the verdict. Crimmins, 36 N.Y.2d at 241. The only evidence that appellant had sold drugs on March 13 was the testimony of undercover 90 and 93. Without a showing that UC 93’s ability to identify appellant was not impermissibly influenced by the suggestive photo array, his in court identification of appellant was not admissible. See People v. Delamota, 18 N.Y.3d 107, 119 (2011). Second, because UC 93 was one of only two people to identify appellant as a participant in the March 13 sale, it was necessarily critical to the proof of that count, and there is a reasonable possibility it affected the verdict. Allowing UC 93’s identification was not only critical to proof of the single March 13 sale, it 56 corroborated the proof of the other counts as well, particularly because it confirmed UC 90’s identification of appellant as a seller. Cf. People v. Morales, 20 N.Y.3d 240 (2012) (evidence on appeal on certain charges also found to have caused “spillover effect” on other charges by creating a “reasonable possibility that the jury’s findings were prejudicially influenced”). The likelihood that the jury’s verdict on the sales on other dates may have been a result of spillover prejudice is particularly likely, because the court did not charge the jury to consider the evidence of each sale separately. People v. Castillo, 47 N.Y.2d 270, 275-256 (1979)(Evidence relating to separate criminal charges against a single defendant must not be commingled, and the defendant is entitled to an instruction that the jury must separately evaluate whether the People have presented proof beyond a reasonable doubt on every charge). Thus, the jury may well have considered the fact that UC 93 had identified appellant as the seller on March 13 as proof that he had engaged in sales on the other dates. Though UC 93’s identification was one of many over the course of the trial, it was one of many conflicting descriptions. Defendant was referred to as JD Shorty (A.342), JD Izzy (A.343), JD Ismael (A.342), and even his brother’s JD name, JD Buddha (A.219). The seller in the November 18, 2011 transaction was described as “male black approximately 35 to 40 years old, 5’3” to 5’6”, 120 to 130 pounds” (A.283), but the seller on February 1 was a “male black, 20 to 25 years 57 old, 5’3”, 130 to 150” pounds and “cross-eyed” (A.292). The evidence is at best unclear as to whether the sellers in this transactions were even the same person, much less whether the description matches appellant. 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 (PENAL LAW § 265.02(4)). Appellant was sentenced as a second felony drug offender whose prior 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 that crime was a violent felony in 2003, it was no longer classified as a violent felony in 2011 and 2012 when the current crimes were alleged to have been committed, or in 2013 when it was used to enhance his sentence. The plain language of the operative sentencing provisions in effect in 2013 — when appellant was sentenced — dictated that whether or not a prior crime is a violent felony for recidivist sentencing purposes is measured at the time of the enhanced sentence is imposed, not the time the prior crime was committed. See, Penal Law § 58 70.70(1)(c) (a defendant is not a second felony drug offender whose prior conviction was a violent felony unless his prior offense “is” a “violent felony”). Even if the failure to include criminal possession of a weapon under subdivision four as a violent felony in the Penal Law § 70.02 listing of qualifying violent felonies was a drafting error, it would be inappropriate to impose an enhanced sentence upon a defendant who has not had fair notice of the punishments that may be imposed against him. See, Penal Law § 1.05(2). Accordingly, appellant must be resentenced. A second felony drug offender who was previously convicted of a violent felony is subject to an enhanced sentence range. See Penal Law §70.70(4)(a). Analysis of whether a drug offender may be sentenced as a second felony drug offender whose prior conviction was a violent felony begins with how the Legislature has defined such an offender. See, People v. Yusuf, 19 N.Y.3d 314, 318-19 (2012). Penal Law § 70.70(4)(a) states that its enhanced sentences “shall apply to a second felony drug offender whose prior felony conviction was a violent felony.” This qualifying language contains two terms that are defined in other subsections of section 70.70: “second felony drug offender,” which is defined in subsection (1)(b); and “violent felony,” which is defined in subsection (1)(c): 59 • Subsection (1)(b) defines a second felony drug offender as a drug offender who is “a second felony offender as that term is defined in” 70.06(1). • Subsection (1)(c) defines “violent felony” as having “the same meaning as that term is defined in” § 70.02(1). Section 70.02(1) defines a violent felony offense as a “class B violent felony offense, a class C violent felony offense, a class D violent felony offense, or a class E violent felony offense.” Subsection (1) then further defines the class B, C, D, and E felonies by providing a list of qualifying violent felonies in subsections (1)(a) through (d). A prior felony cannot enhance a defendant’s sentence unless the felony is specifically listed as a violent felony in Penal Law § 70.02(1). See People v. Lynes, 106 A.D.3d 433, 434 (1st Dep’t 2013) (finding that second-degree murder is not a violent predicate felony because it was not listed as a violent predicate felony under § 70.02(1)). Appellant’s crime—a conviction under Penal Law § 265.02(4)—is not listed as a violent predicate felony under § 70.02(1). While § 70.02(1)(c) explicitly makes it a violent felony offense to commit criminal possession of a weapon in the third degree under subsection five, six, seven, eight, nine or ten of § 265.02, the statute does not include criminal possession of a weapon in the third degree under subsection four. 60 The failure to define criminal possession of a weapon in the third degree under subsection four may have been a drafting oversight. Penal Law § 265.02(4) was repealed by L.2006, ch. 742 § 1, effective November 1, 2006. See McKinney’s 2006 Sess. Law News of N.Y. Ch. 742 (S. 8467). The conduct constituting criminal possession of a weapon in the third degree under subdivision four was reclassified as criminal possession of a weapon in the second degree under subdivision three. Penal Law § 265.03(3); see, McKinney’s 2006 Sess. Law News of N.Y. Ch. 742 (S.8467) § 2. The following year, the Legislature specifically delisted Penal Law § 265.02(4) as a violent felony offense. See L.2007, ch. 7, § 32 (amending § 70.02(c) to delete the cross references to § 265.02(4)). Since April 13, 2007, a violation of Penal Law § 265.02(4) does not constitute a violent predicate felony for the purposes of § 70.02. Because treating it as a predicate felony would “effectively rewrite the statute,” doing so would be improper. See Lynes, 106 A.D.3d at 434. Yet that is what happened here. The predicate felony statement alleged that, on March 19, 2003, appellant was convicted of criminal possession of a weapon in the third degree under subsection four of § 265.02 (See Statement of Predicate Violent Felony Conviction for Drug Offender, in Record on Appeal; A.59). Based on this statement, the court found appellant to be a second felony drug offender whose prior conviction was a violent felony. 61 The plain language of Penal Law § 70.70(1)(b), (c) and § 70.02(1) — at the time appellant was sentenced as a second felony drug offender whose prior conviction was a violent felony — dictated that criminal possession of a weapon in the third degree under subdivision four was not a violent felony. Because a person reading that statute would not have had “fair warning” that a prior conviction for criminal possession of a weapon in the third degree under subdivision four would subject him to sentencing as a second felony drug offender whose prior conviction was a violent felony, it would be unlawful to impose that enhanced sentence. 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”); People v. Stuart, 100 N.Y.2d 412, 420 (2003)(penal statute must be “sufficiently definite to give a person of ordinary intelligence fair notice” that his conduct is forbidden; internal quotations and citations omitted). Because the sentencing statute did not give fair notice of the enhanced sentences for those who had previously committed criminal possession of a weapon in the third degree under subdivision four, it was unlawful to sentence appellant as if it had. Fair notice for recidivist sentencing purposes is assessed at the time of the commission of the crime upon which the enhanced sentence is imposed. People v. Morse, 62 N.Y.2d 205 (1984) demonstrates the point. There, this Court concluded that the fair notice requirement was satisfied where a change in the second violent 62 offender and the persistent violent felony offender laws required imposition of enhanced punishment, “even though at the time of the prior conviction on which the enhanced sentence was based the prior crime was not classified as a violent felony offense.” Id. at 213. This Court ruled that, 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.” Id. at 217. Here, on the other hand, appellant did not have fair notice that he was subject to an enhanced sentence. When appellant allegedly committed the instant offenses in 2010 and 2011, the crimes upon which an enhanced sentence would be imposed, the sentencing statutes (Penal Law §§ 70.70(1)(b), (c) and 70.02) did not define criminal possession of a weapon in the third degree under subdivision four as a violent felony. Importing the reasoning from its prior decisions in People v. Thomas, 122 A.D.2d 489 (2014), and People v. Bowens, 120 A.D.3d 1148 (2014), the First Department held that criminal possession of a weapon in the third degree under Penal Law § 265.02(4) could still be used as a predicate violent felony, because it was classified as a violent felony when it was committed, and remained, as recodified as criminal possession of a weapon in the second degree, a violent 63 felony offense. Without addressing the plain language of the applicable statutes, the First Department essentially concluded that the Legislature’s failure to define violent felony to include Penal Law § 265.02(4) when it recodified the elements of that crime as criminal possession of a weapon in the second degree, was a drafting oversight. Before the Appellate Division, the People attempted to flesh out the drafting-error theory. The People conceded that the statutory provisions defining what is and is not a violent felony used the present tense. Penal Law § 70.70(1)(b) states that the term “‘violent felony shall have the same meaning as that term is defined in” §70.02(1) (italics added). And § 70.02(1) states that a violent felony is a class B violent felony offense, a class C violent felony offense ... defined as follows....” But the People pointed to what they labeled “backward-looking” conflicting language in the “applicability” provision of Penal Law § 70.70(4), which states that the enhanced sentencing provisions “shall apply to a second felony drug offender whose prior felony conviction was a violent felony.” (Respondent’s Appellate Division brief at 55). There is no reason to think that the choice of the past-tense “was” in the applicability provision (§ 70.70(4(a)), rather than the present tense “is” as had been used in the definitional sections (§ 70.70(1)(c)), was for anything more than grammatical consistency. Because a “prior” conviction necessarily has happened in 64 the past, it would have been incongruous to use the present tense. More problematically for the People, their interpretation would create a conflict in the statute, and courts, “in construing apparently conflicting statutory provisions[,] must try to harmonize them.” Burger King, Inc. v. State Tax Commission, 51 N.Y.2d 614, 620-21 (1980), citing, Statutes, § 98, p. 141). Construing the word “was” in subsection (4)(b) to refer only to fact that the conviction had occurred in the past, and not as a signal, as the People contend, that it amended both the definitional subsections § 70.70(1)(c) and § 70.02(1) to read that a violent felony offense is an offense “is now, or was at the time that it was committed, a class B violent felony offense, ...” is the only means of harmonizing the use of the present and past tenses in the same provision. More, the enhanced sentencing provisions of Penal Law § 70.04(1)(a) for second violent felony offenders, and § 70.08(1)(a) for persistent violent felony offenders, also assess whether a person’s prior conviction is a violent felony for recidivist purposes by reference to the current Penal Law § 70.02 listing of violent felony offenses. And neither statute uses the past tense. Penal Law § 70.04(1)(a)(“A second violent felony offender is a person who stands convicted of a violent felony offense ... after having previously been subjected to a predicate violent felony conviction ...”); Penal Law § 70.08(1)(a) (“A persistent violent felony offender is a person who stands convicted of a violent felony offense ... after having been 65 subjected to two or more predicate violent felony convictions defined in” §70.04(1)(b)). If, as the People contend, it is the use of the past tense in Penal Law § 70.70(4)(a) that authorizes use of criminal possession of a weapon in the third degree under subsection four as a violent felony for drug offenders, but neither the second violent felon offender sentencing statute, Penal Law § 70.04(1)(a), nor the persistent violent felony offender sentencing statute, Penal Law § 70.08(1)(a), use the past tense, then only drug offenders with prior criminal possession of weapon in the third degree under subdivision four are subject to enhanced sentences. There is no reason to believe that the Legislature intended to enhance the sentences of drug offenders with prior convictions for criminal possession of a weapon in the third degree under subsection four felonies, but not violent felons. Courts are generally forbidden from correcting legislative drafting errors. Lamie v. United States Trustee, 540 U.S. 526, 542 (2004), particularly alleged drafting errors in penal statues. United States v. Granderson, 511 U.S. 39, 68 (1994)(“It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think ... is the preferred result”). Where there is an ambiguity in a criminal statute, courts must resolve doubts in favor of the defendant. People v. Golb, 23 N.Y.3d 455, 468 (2014)(“if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity”). 66 The substantive power to prescribe punishment is vested in the Legislature. Ohio v. Johnson, 467 U.S. 493, 499 (1984). “[T]he clearest indicator of legislative intent” is the statute itself. Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 583 (1998). Court’s must “give effect” to the “clear and unambiguous ... plain meaning” of a statute. Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 N.Y.2d 86, 91 (2001); accord, Statutes §76 (“[w]here words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation”); Statutes, §94 (“[t]he language of an enactment should be given its plain meaning ... and [a] court should neither limit nor extend plain language”); cf. Sega v. State, 60 N.Y.2d 183, 191 (1983)(“[w]hile legislative intent is the great and controlling principle ..., it should not be confused with legislative history, as the two are not coextensive. Inasmuch as the legislative intent is apparent from the [statutory] language..., there is no occasion to consider the import, if any, of the legislative memorandum”). Courts must abide by the Legislature’s intent as expressed by its chosen words: If ... the terms of a statute are plain and within the scope of legislative power, it declares itself and there is nothing left for interpretation. To permit a court to say that the law must mean something different than the common import of its language would make the judicial superior to the legislative branch of government and practically invest it with lawmaking power. 67 Finger Lakes Racing Ass’n, Inc. V. New York State Racing & Wagering Board, 45 N.Y.2d, 471, 480 (1978), citing, Johnson v. Hudson Riv. R. R. Co., 49 N.Y. 455, 462 (1872); see, People v. Smith, 79 N.Y.2d 309, 311 (1992)(it is not the function of a court “to pass on the wisdom of a statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment”); People v. Graham, 55 N.Y.2d 144, 149-50 (1982)(judge, who was executive director of State Commission that drafted CPL provision, was not free to ignore statute’s plain language which he believed “the legislature never could have intended”). Before a court can correct the plain language of a statute, it must conclude that application of the plain language leads to an absurd result. Sentencing appellant as a second felony drug offender, rather than a second felony drug offender whose prior conviction was a violent felony would not be absurd. People v. Paulin, 17 N.Y.3d 238, 243-44 (2011)(finding no “absurdity” in plain language of 2009 Drug Law Reform Act, even though results might be “illogical,” and refusing to rewrite statute’s terms); People v. Santiago, 17 N.Y.3d 246 (2011)(finding it “best to read” provisions of 2009 DLRA “as written,” notwithstanding “not unreasonable” argument that it was not what the Legislature intended). The available sentence range for a second felony drug offender convicted of a class B 68 drug felony is from a minimum of two years to a maximum of 12 years.7 The available range for a second felony drug offender whose prior conviction was a violent felony is from a minimum of six years to a maximum of 15 years. The sentence ranges not only provide a six-year overlap, but both encompass the sentence imposed by the court below, namely 12 years. 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 § 265.02(4) should not have been used to treat him as a second felony drug offender whose prior conviction was a violent felony. See Lynes, 106 A.D.3d at 434. This claim presents an issue of law, notwithstanding lack of preservation, as the illegality is apparent on the face of the record, and therefore “this case falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record.” People v. Santiago, 22 N.Y.3d 900, 903 (2013); see People v. Samms, 95 N.Y.2d 52, 55-56, 58 (2000) (finding no preservation required where illegality “may be determined from the face of the appellate record . . . . [and n]o resort to outside facts, 7Appellant’s prior offense does constitute a “prior felony” within the meaning of Penal Law § 70.70(1)(b). Thus, appellant should have been sentenced as a second felony drug offender convicted of a Class-B felony, and sentenced to a determinate sentence in accordance with the applicable range of between two and 12 years, with between one and one-half and three years’ postrelease supervision. See Penal Law § 70.70(3)(b)(i); § 70.45(2)(d). 69 documentation or foreign statutes is necessary”); Lynes, 106 A.D.3d at 434 (rejecting prosecution’s claim that the predicate challenge needed to be preserved). The defect is apparent from the trial record in appellant’s case. The prosecutor provided a predicate felony statement citing a statutory crime that is not listed as a violent felony. Because this defect is evident from the information provided in the statement itself, there is no need to turn to outside facts or documentation, and “thus the record [is] sufficient for the [preservation] exception to apply.” Santiago, 22 N.Y.3d at 903. Thus, the Court should vacate appellant’s sentence, vacate the predicate violent felony offender adjudication, and remand this matter for a resentencing and a new predicate felony adjudication hearing. Lynes, 106 A.D.3d at 434; People v. Dais, 19 N.Y.3d 335 (2012) (requiring that People present new predicate felony statement when remanding for resentencing in DLRA context). Should this Court conclude that the language of Penal Law § 70.70 is a legislative drafting error in need of correction, it should correct it prospectively only, so that only those persons with fair notice of the change are subjected to the enhanced punishment. See, People v. Epton, 19 N.Y.2d 496, 506 (1967). 70 CONCLUSION FOR THE REASONS STATED IN POINT I, APPELLANT’S CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL ORDERED; FOR THE REASONS STATED IN POINT II, APPELLANT’S CONVICTIONS SHOULD BE REVERSED AND A NEW TRIAL ORDERED TO BE PRECEDED BY AN INDEPENDENT SOURCE HEARING; AND, FOR THE REASONS STATED IN POINT III, APPELLANT SHOULD BE RESENTENCED. Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant ____________________ Mark W. Zeno Center for Appellate Litigation 120 Wall Street New York, NY 10005 (212) 577-2523 mzeno@cfal.org Angela Zhu Pro Bono Counsel Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 (212) 839-5300 71