The People, Respondent,v.Tyrell Ingram, Appellant.BriefN.Y.June 1, 2016To be argued by: RAFFAELINA GIANFRANCESCO APL-2015-00221 (15 MINUTES REQUESTED) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK. Respondent, against TYRELL INGRAM, Defendant-Appellant. BRIEF FOR RESPONDENT JAMES A. McCARTY SPECIAL ACTING DISTRICT AUORNEY OF BRONX COUNTY Attorneyfor Respondent 111 Dr. Martin Luther King Jr. Blvd. White Plains, New York 10601 Telephone: (914) 995-3496 Facsimile: (914) 995-4672 RAFFAELINA GIANFRANCESCO LAURIE G. SAPAKOFF STEVEN A. BENDER SPECIAL ASSISTANT DISTRICT A 77QRNE) S OfCounsel Brief Completed: April 27, 2016 TABLE OF CONTENTS TABLE OF AUTHORITIES PRELIMINARY STATEMENT I QUESTIONS PRESENTED 3 STATEMENT OF FACTS The People’s Case 4 Defense Case 10 Jury Verdict 10 Use of a Federal Lawsuit as Impeachment Material 10 Appellate Division Decision 14 POINT I 15 THE TRIAL COURT SOUNDLY EXERCISED ITS DISCRETION N PRECLUDING DEFENDANT FROM CROSS-EXAMINING POLICE WITNESSES REGARDING THE MERE EXISTENCE OF A FEDERAL LAWSUIT IN WHICH THEY WERE NAMED DEFENDANTS. A. Defendant’s Claims are Unpreserved 16 B. Relevant Law on the Court’s Exercise of Discretion in Cross-Examination.. 19 C. The Trial Court Soundly Exercised Its Discretion in Precluding Inquiry Regarding the Mere Existence of the Federal Lawsuit. Defendant Never Provided a Good Faith Basis and Reasonable Basis in Fact to Believe That Sanchez or Deevy Engaged in Specific Acts of Misconduct 23 D. Even If There Was Any Error It Was Harmless 28 CONCLUSION 32 TABLE OF AUTHORITIES Federal Cases Davis vA/as/ca, 415 Us 308 (1974) 19 Delaware v Van Arsdall, 475 US 673 (1986) 19 State Cases BadrvHogan, 75 NY2d 629 (1990) 20 People vAlamo, 23 NY2d 630 (1969) 20,22,26 People vAndrew, 54 AD3d 618 (1st Dept 2008) 22, 23,25,30 People v Antonetty, 268 AD2d 254 (1st Dept 2000) 22 People vAska, 91 NY2d 979 (1998) 20 PeoplevCascone, 185NY317(1906) 21 People v Chandler, 94 AD3d 1155 (3d Dept 2012) 22 People v Coleman, 206 I11.2d 261 (2002) 24 PeoplevCook,37 NY2d 591 (1975) 21 People v Corby, 6 NY3d 231(2005) 20 People v Crimmins, 36 NY2d 230 (1975) 28 People v Daley, 9 AD3d 601 (3d Dept 2004) 25 People vDaniels, 225 AD2d 632 (2d Dept 1996) 21 People vDuffi,’, 36 NY2d 258 (1975) 20,21 People yE/hot, 127 AD3d 779 (2d Dept), lv denied 26 NY3d 928 (2015) 22,25 PeoplevFrancis, 112 AD2d 167(2d Dept 1985) 21 People v Francis, 15 AD3d 318 (1St Dept 2005) .25 People v Garrett, 23 NY3d 878 (2014) 27 Peoplev George, 67NY2d 817 (1986) 16 People v Gissendanner, 48 NY2d 543 (1979) 20 People v Graham, 25 NY3d 994 (2015) 16, 19 People vHasenfiue, 252 AD2d 829 (3d Dept 1998) 30 PeoplevHayes, 17 NY3d 46 (2011) 19 People v I-Judy, 73 NY2d 40 (1988) 12, 20 Peoplevlngrain, 125 AD3d 558 (lstDept2Ol5) 1,14,19,23 People v Jones, 193 AD2d 696 (2d Dept 1993) 26 People vKass, 25 NY2d 123 (1969) 22,26 People vKello, 96 NY2d 740 (2001) 28 People vLane, 7 NY3d 888 (2006) 19 People v Macon, 256 AD2d 134 (1st Dept 1998) 22 PeoplevMiller,91 NY2d 372 (1998) 21,23 PeoplevMiranda,27 NY3d 931 (2016) 16,19 PeoplevMorrison, 194 NY 175 (1909) 21 People v Munoz, 291 AD2d 287 (1st Dept 2002) 21 People vPadilla, 28 AD3d 365 (1st Dept 2006) 25 People v Powell, NY3d, 2016 WL 1306692 (April 5, 2016) 20, 24 People vRodriguez, 38 NY2d 95 (1975) 21 People v Santos, 306 AD2d 197 (1st Dept 2003) 12 People v Schwartzman, 24 NY2d 241(1969) 20 11 People v Sorge, 301 NY 198 (1950) .20, 22 People v Stanard, 42 NY2d 74 (1977) 19 People v Steele, 168 AD2d 937 (4th Dept 1990) 21 People v Thomas, 46 NY2d 100 (1978) 22, 26 People v Vidal, 26 NY2d 249 (1970) 21 PeoplevWebster, 139NY73 (1893) 20 People v Williams, 81 NY2d 303 (1993) 19 State v Bova, 240 Conn. 210 (1997) 24 111 COURT OF APPEALS STATE OF NEW YORK x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against TYRELL INGRAM, Defendant-Appellant. x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, former Associate Judge of the Court of Appeals, granted on August 14, 2015, defendant appeals from an order of the Appellate Division, First Department, dated February 24, 2015 (People vlngram, 125 AD3d 558). This order affirmed ajudgment of conviction rendered March 14, 2011, in the Supreme Court, Bronx County (Carter, J.), whereby defendant was convicted, after a jury trial, of the crime of criminal possession of a weapon in the second degree and sentenced, as a second felony offender, to a determinate term of 12 years imprisonment followed by 5 years post- release supervision. Defendant is currently incarcerated. By order, dated February 11, 2016, the Supreme Court, Bronx County (Fisher, Jj, as Deputy Chief Administrative Judge for the New York City Courts, granted a motion made by Darcel D. Clarke, District Attorney of Bronx County, to be relieved from acting thither in the prosecution of this matter and, pursuant to County Law § 701 (1) (b), appointed the Honorable James A. McCarty, Acting District Attorney, Westchester County, to act as special district attorney for all purposes in this matter. 2 QUESTIONS PRESENTED This Court has held that the fact of a witness’ arrest or indictment is improper cross-examination, for a mere allegation of wrongdoing proves nothing. Against the backdrop of that established rule, this case presents the following questions: 1. (a) Is defendant’s claim that he was denied his federal constitutional right to a fair trial and improperly precluded from cross-examination of two police witnesses regarding prior bad acts alleged in a federal civil lawsuit preserved when he never voiced these contentions to the trial court? (b) Did the trial court abuse its discretion by sustaining the prosecution’s objection to defendant’s proposed cross-examination of police witnesses regarding the mere existence of a federal lawsuit against the officers? As defendant frames his claim in this Court, it is unpreserved and, thus, not reviewable. And the trial court properly exercised its discretion by precluding cross-examination. A lawsuit, like an arrest or indictment, is merely an allegation of wrongdoing possessing no impeachment value. Defendant never sought to question the police witnesses about the underlying facts of the lawsuit, and failed to establish a good faith basis and reasonable basis in fact for doing so, as he never before the trial court the specific alleged bad acts by each witness the lawsuit which formed the basis of his proposed cross-examination. articulated underlying 3 STATEMENT OF FACTS Tire People’s Case Detective Manuel Sanchez was a 13-year member of the Bronx Narcotics Bureau, which was involved in short-time buy and bust operations (A. 7, 9).1 Each operation consisted of an eight or nine person team: a sergeant, police officers or detectives, and two undercover police officers (A. 9,46-47, 107-108). The sergeant and the arresting officer for the day rode in the lead car. Those in the chase car pursued the individuals involved in selling the drugs at a location (A. 9). Typically, the chase car was the first to arrive at a scene to apprehend any individuals (A. 38). The prisoner van was operated by two detectives, who transported the anestees to and from the precinct and courthouse (A. 9-10). The last vehicle contained the two undercover police officers (A. 10). Another officer acted as a “ghost” to ensure that the undercover entered and left the location of the drug buy (A. 10). On the evening of September 28, 2008, Sanchez attended a tactical meeting to review the locations for the buy and busts, hand out equipment, and ensure all members of the operation viewed each other in their plain civilian clothes (A. 11, Parenthetical notations preceded by “A.” refer to defendant’s appendix and those preceded by “SA.” refer to the respondent’s supplementary appendix, the latter containing various trial transcript pages that were not included in defendant’s appendix. 4 161). Sergeant Timothy Deevy was the supervisor that evening (A. 11, 117, 160).2 Detective Anthony Schaffer was the arresting officer, while Detectives Sanchez and Gregory Perpall were assigned to the chase car (A. 12, 89, 105, 117, 160, 265). Detective Albert Roman was the ghost for two unnamed undercover police officers (A. 12, 160). Detectives Amado Batista and Daniel Howell operated the prison van (A. 12-13, 106, 117). At around 2:30 A.M. the following morning, September 29, 2008, Schaffer and Deevy were headed southbound in an unmarked black Dodge Caravan on Hoe Avenue at 174th Street waiting at a red light (A. 160, 162-163, 267). The prisoner van, with four arestees from earlier drug operations was parked at Southern Boulevard and l73’’ Street (A. 126-127, 131). The chase car, driven by Sanchez was headed eastbound on l73 Street in the vicinity of Hoe and Vyse Avenues (A. 13, 38). Sanchez and Perpall were driving around the area looking for locations, unknown to the police, where drug sales might be taking place (A. 13-14). As Schaffer drove the van with Deevy in the front passenger seat, they noticed the 23-year-old defendant on the opposite side of the street running “hill speed” westbound on l74 Street holding a large bulge at his waistband (A. 163- 2 Deevy retired from the New York City Police Department in June 2009, approximately nine months after defendant’s arrest (A. 11-12, 159). Defendant’s insinuation at trial and on appeal (see defendant’s brief, p. 3) that Deevy had to justify shooting defendant because he was close to retirement is pure conjecture. At the time of trial, Perpall had retired from the New York City Police Department afier an approximately 23-year career (A. 86). 5 164, 267, 367). Defendant was dressed all in black (hoody, jeans, and sneakers) and looking back, as if he was running away from someone (A. 164, 267-268, 286). Schaffer pulled the van alongside defendant, as Deevy rolled down the window, pulled out his police shield and stated, “Police, don’t move” (A. 165, 268). Defendant stopped short, looked at the shield, and ran back in the direction he had just come from, northbound on Hoe Avenue (A. 165, 202, 269). Deevy jumped out and pursued defendant, while Schaffer followed in the van (A. 165-166, 269). Defendant turned the corner onto Vyse Avenue. Deevy followed and made a wide turn around the corner to give himself a better chance of avoiding being shot, as he was trained in the police academy (A. 166). Schaffer kept pace with defendant in the unmarked van (A. 167). Defendant ran behind the van, crossed the street and headed in Deevy’s direction but from the opposite side of the street (A. 167, 270). Deevy ran across the Street between two parked cars when defendant, holding a gun in his right hand, pointed it at Deevy and pulled the trigger (A. 167-168, 180, 206). The men were about five to six feet apart (A. 168, 180). Deevy saw a flash come out of the front of defendant’s gun and heard a loud bang (A. 168, 185). Schaffer, who had After later obtaining defendant’s pedigree information the police discovered that he lived at I-be Avenue, between l73 and 174th Street (A. 287-288). 6 jumped out of the van, heard the pop, and saw the muzzle flash in Deevy’s direction (A. 27 1-272). Instinctively, Deevy returned fire with his police department issued Glock 9 millimeter weapon (A. 161-162, 168, 272; SA. 7-8). Deevy felt ajerky motion on his gun and realized that although one bullet fired, the next one was not properly sitting in the chamber (A. 168). Instead, the second bullet was sticking straight out of the ejection port. Deevy squeezed the trigger but nothing happened (A. 168). Defendant took a step and fell to the ground, although not shot. While still keeping focus on defendant, Deevy cleared the bullet by shaking the gun (A. 169- 170).6 Defendant, who was on his belly, turned towards Deevy and got back up with his gun in his hand (A, 170-171). Schaffer, now near Deevy, ran towards defendant. Schaffer grabbed defendant’s gun and threw it to the ground (A. 171, 183, 275, 294). Deevy holstered his own gun and aided Schaffer in subduing defendant (A. 185, 275). The whole incident took about a minute (A. 276). Meanwhile, just before arriving at Vyse Avenue, Sanchez heard someone on the point-to-point radio yelling, “He’s running, he’s running. He’s on Vyse Avenue, southbound on Vyse Avenue, southbound on Vyse Avenue, 173” (A. 14, This type of malthnction is commonly known as “stove pipe” (A. 222). In clearing a live cartridge, it would fall to the ground (A. 229). 7 40, 47, 53).7 Sanchez made a left turn onto Vyse Avenue, heading northbound towards 174th Street when he and Perpall heard two shots and smelled gunpowder in the air (A. 14, 16, 90). The street was blocked by Schaffer’s van, which was abandoned in the middle of the street, facing the wrong way on the one-way street (A. 14, 16-17, 41, 90). Sanchez and Perpall got out of their car and ran up the street, screaming Deevy’s name (A. 14). When Deevy yelled, “over here,” Sanchez and Perpall spotted him on the sidewalk under a building scaffolding for 1690 Vyse Avenue.8 Deevy and Schaffer were on top of defendant struggling to place him under arrest (A. 15-16, 18, 20-22, 25, 43-44, 91-92, 171). Perpall ran towards the men and pulled out his handcuffs to help secure defendant (A. 92-93). Once defendant was cuffed, Perpall asked what happened. Schaffer told him that defendant shot at Deevy (A. 93). Perpall quickly took out his flashlight and checked Deevy for any gunshot wounds (A. 93). Perpall then radioed, “shots fired by MOS [Member of Service] and perp,” and “nobody’s hit” (A. 99-10O). Deevy also radioed, “we got the guy, he’s under, recovered the gun, The frequency used for the point-to-point radio communication was audible only to the members of the field team (A. 53). 8 Approximately 20 minutes earlier the team had made a drug arrest at that location (A. 108-09, 112,200-201). A transcript of the radio transmission, not admitted in evidence, was provided to the jury to aid in listening to the audio (A. 99-100). 8 we’re not looking for anyone, we got one under, received fired at MOS and the perp but I don’t believe anybody got hit” (A. 99-100). When Sanchez arrived at the scene, he observed a gun on the ground near the feet of the detectives and defendant, and picked it up (A. 15, 27, 35, 210, 295).’° It was a black .38 caliber revolver with an old, brown handle, which held five cartridges (A. 15, 138). As a safety precaution, Sanchez opened the cylinder and ejected the bullets—four live rounds and one empty shell (A. 15, 27-29, 33, 45-46). Sanchez handed the gun and bullets to Batista, who came upon the scene (A. 34)11 Batista brought the gun and ammunition back to the precinct and gave it to Crime Scene Unit Detective Paul Brown (A. 34, 118, 120, 131, 237, 249250).12 The gun and ammunition were tested and found operable (SA. 4; A. 147)) No latent prints of value were recovered on the ammunition (A. 238). 0 A photograph depicting the location where the gun was recovered was admitted in evidence (A. 55; SA. 1-3). Howell had decided to drive the prisoner van back to the location of the last arrest when he and Balista realized something was going on (A. 126-130). 12 Brown testified on cross-examination that the weapon was made “safe” when given to him by Batista. Brown believed the gun’s cylinder was open and the bullets were inside the chamber (A. 250). ‘ Detective Michael Bruestle, an expert in firearms operability, testified that according to the report accompanying the gun, it had been fingerprinted and tested for DNA, but Bmestle did not know if those tests had actually been done (A. 146-147). However, as later explained by CSU Detective Brown, a DNA test would not be performed on a gun recovered from a known source, as in this case (A. 240, 253, 257-258). 9 The Crime Scene Unit recovered a discharged shell casing and live cartridge, and defendant’s sneaker at the scene near the building wall (A. 64-66, 75-76, 136; SA. 6). The cartridge and shell casing came from Deevy’s 9mm Glock, which tested operable (A. 75, 148-49, SA. 5). Defendant was taken to the hospital for an abrasion on his cheek and bleeding on his finger (A. 178, 241). Defense Case The only evidence presented by defendant were the audio recordings of three telephone calls made to 911, in which the anonymous callers stated that two to three shots were fired, and a narcotics detective shot and killed a teenager (A. 304- 305). Jury Verdict The jury found defendant not guilty of attempted murder in the first and second degrees, attempted assault in the second degree, and criminal possession of a weapon in the second degree (intent to use). Defendant was found guilty of criminal possession of a weapon in the second degree (loaded firearm). Use ofa Federal Lawsuit as Impeachment Material At the outset of Detective Sanchez’s cross-examination, defense counsel established that the detective worked 13 years in Bronx Narcotics and made over 10 1,000 arrests (A. 35). Counsel then repeated, “Over 1,000” and asked, without having made a motion in lirnine, “And have you ever been sued” (A. 35). The prosecutor’s immediate objection was sustained (A. 35). Outside the presence of the jury, defense counsel informed the court that the whole narcotics team was the subject of a federal civil rights lawsuit (“federal lawsuit” or “the lawsuit”) filed by an individual named Marcus Reyes on June 18, 2010. The lawsuit alleged a false arrest, excessive force (Reyes claimed he was struck in the back and body several times), an illegal strip search, and fabricated evidence. According to counsel, the team arrested Reyes at 3:15 in the morning in front of 2710 Morris Avenue. After the criminal case was dismissed, Reyes filed a federal lawsuit, which was, according to defense counsel, still pending (A. 36- 37))4 Contrary to counsel’s representation at defendant’s trial in February 2011, the federal lawsuit was no longer pending. Defendant never made pan of the trial record the complaint itself, its underlying facts, and its status. But, as detailed in respondent’s brief in the Appellate Division, First Department (p.8, n.3), respondent’s review of the federal court records through the Public Access to Court Electronic Records (“PACER”) computer system showed a lawsuit under 42 USC § 1983 had been filed in the Eastern District of New York by Marcus Reyes on December 14, 2009, against the City’ of New York, Amado Batista and John Doe 1-4 (representing unidentified officers of the NYPD), related to an incident that occurred on November 23, 2008. at approximately 3:15 AM, in front of 2710 Moths Avenue, Bronx. New York. The federal lawsuit alleged that “members of New York City Police Department. . . subjected [Reyesj to false arrest, excessive force, illegal strip search and fabricated evidence.” An amended complaint filed on June 18, 2010, added defendants: Undercover #306, Sgt. Timothy Deevy, Det. Daniel Howell, Det. Manual Sanchez, Det. Gregory Perpall, Det. Anthony Schaffer, and Det. Albert Roman. A settlement agreement, without admissions of guilt, was entered on July 23, 2010, and the federal lawsuit was dismissed on July 26, 2010 (Id. at p.8, n.3). 11 Counsel argued, “I think it goes directly to my theory of this case that these are [rogue] cops” (A. 36). Counsel contended that defendant was doing nothing more than running when he was arrested. He was not engaged in a drug sale (A. 3 6-37). The prosecutor objected on the ground that, like an arrest, a lawsuit (the fact that one is being sued) is “evidence of nothing” (A. 37). Counsel countered that being sued was “clearly evidence of prior bad acts” (A. 37). Again the prosecutor pointed out, “Not the fact of getting sued, though” (A. 37). The court sustained the objection, but provided counsel the opportunity to bring in case law and recall Sanchez (A. 37). The following day, defense counsel discussed the First Department decision in People v Santos (306 AD2d 197 [2003]), which affirmed an order granting the defendant a new trial based on newly discovered evidence: after the defendant’s trial, the complainant, a corrections officer, pled guilty in an administrative proceeding to assaulting three inmates. Counsel also mentioned People v Hzdy (73 NY2d 40 [1988]), a case pertaining to bad character evidence against a defendant, which, according to counsel, was also applicable to a witness’ credibility, and another case where the witness’ prior contacts with the criminal justice system was newly discovered evidence, which should have been admitted at trial (A. 56-58). 12 Significantly, the prosecutor pointed out that the question asked by defense counsel to Sanchez was, “isn’t it true you were sued.” The prosecutor argued that being sued was like an arrest, something which counsel cannot cross-examine on, and not addressed in the cases defense counsel relied upon (A. 58). The court stated it would read the cases (A. 58). Although provided ample opportunity to do so, defense counsel never suggested to the court that, in fact, she wished to ask about the facts underlying the federal lawsuit; indeed counsel failed to speci the particular acts of misconduct alleged in the suit supposedly done by each witness that defendant sought to use as impeachment evidence. Prior to Deevy’s testimony defense counsel renewed her request to question him “about the civil rights lawsuit” (A. 153). Counsel reminded the court that she provided it with cases to review (A. 153). Again, however, counsel said nothing to suggest she was interested in eliciting the underlying facts or anything other than the bare fact of the federal ]awsuit having been filed against them. The following day the court addressed “the defense request to inquire into the - - of these officers about the fact that apparently there’s been a lawsuit instigated against them” for false arrest and excessive force, which based on counse]’s representation, the court believed was still pending. The court denied the application, having found “the prejudicial effect far outweighs the probative value at this stage since it is a pending lawsuit” (A. 156). 13 Appellate Division Decision Defendant argued two issues on appeal to the First Department, which unanimously affirmed his conviction (People vlngram, 125 AD3d 558 [1st Dept 2015]). As pertinent to the sole issue raised in this Court, he claimed the trial court improperly prohibited cross-examination of a key prosecution witness about prior bad acts and specific acts of misconduct (fabricating evidence, excessive force, and false arrest). The First Department found no record support for defendant’s assertion that the trial court “precluded him from impeaching the credibility of a police witness by way of prior bad acts.” The proposed inquiry was properly precluded because the “mere existence of a federal lawsuit in which the officer was one of the named defendants was not a proper subject for cross-examination” (id. at 558). The First Department found, as supported by the record, defendant did not seek to ask the police witness anything about the underlying facts of the lawsuit, and the trial court did not prevent defendant from making such a request. By failing to provide any specific factual allegations of each police witness’ alleged misconduct, the appellate court reasoned, defendant failed to establish a good faith basis for eliciting the underlying facts of the lawsuit “under the theory that they involved prior bad acts by this officer bearing on his credibility” (Id. at 558-559). 14 POINT I THE TRIAL COURT SOUNDLY EXERCISED ITS DISCRETION IN PRECLUDING DEFENDANT FROM CROSS-EXAMINING POLICE WITNESSES REGARIMNG THE MERE EXISTENCE OF A FEDERAL LAWSUIT IN WHICH THEY WERE NAMED DEFENDANTS. Defendant contends the trial court violated his federal constitutional right to a fair trial by improperly curtailing cross-examination of two police witnesses about their prior bad acts underlying the federal lawsuit. Notably, however, defendant never asked the trial court to allow cross-examination of the witnesses about the underlying facts of the lawsuit, but, instead, sought their impeachment by the mere fact they had been sued. This new claim, therefore, is unpreserved. Indeed, defendant never proffered before the trial court the specific allegations of misconduct by Sanchez and Deevy as alleged in the lawsuit (as opposed to global claims of what the entire narcotics team was alleged to have done) that would form the basis of his proposed line of questions for impeachment of each witness. And for that reason defendant failed to establish a record by which the trial court, and ultimately an appellate court, could determine whether the proposed cross examination was sufficiently probative on credibility as to outweigh its inherent risk of prejudice. Simply expressed, defendant now faults the trial court for wrongly ruling on a claim he never raised in that court. As the Appellate Division observed, defendant sought to question the police witnesses about the existence of 15 the lawsuit (i.e., “And have you ever been sued” [A. 35]), which is not permissible impeachment evidence. On this record, the trial court properly exercised its discretion, limiting cross-examination from straying into an impermissible and highly speculative area presenting no probative value while posing serious risks of prejudice (i.e., speculation, taint by allegations only, and potential trial within a trial). A. Deftndant’s Claims are Unpreserved Defendant argues the trial court prevented him from impeaching the credibility of key police witnesses with their prior bad acts alleged in the federal lawsuit. But defendant made no such application before the trial court, rendering his claim in this Court unpreserved (see, e.g., People v George, 67 NY2d 817 [1986] [no question of law presented on trial court’s ruling barring defendant certain cross-examination of a People’s witness; defense counsel failed to make known his position with respect to the ruling at time when it could have been corrected]; see generally, e.g., People v Graham, 25 NY3d 994, 996-997 [2015] [noting issue record must establish question is preserved to be reviewable by this Court]; People vMiranda, 27 NY3d 931 [2016] [hearing court did not expressly decide, in response to protest, the issues now raised on appeal]). A brief review of the trial record on this point highlights that defendant’s claim before the Appellate Division and this Court is different from the claim he 16 had asserted before the trial court, and, consequently, is not reviewable in this Court. On cross-examination of Detective Sanchez, defense asked, “And have you ever been sued” (A. 35). The trial court sustained the prosecutor’s objection. At this point, defense counsel argued to the court (outside the presence of the jury) that Sanchez, as well as the other members of the narcotics team involved in defendant’s arrest, were named defendants in a federal lawsuit and that that subject was proper impeachment; but counsel never at this point in the proceedings or later expressly claimed he sought impeachment on the misconduct underlying the lawsuit—in fact, defendant never particularized the specific allegations of misconduct underlying that lawsuit as to any police witness and established how that misconduct was probative of credibility. Instead, defendant emphasized the filing of the complaint’s allegations as determinative, invoking the complaint’s general, conclusory terms, “false arrest, excessive force, illegal strip search and fabricated evidence.” Defense counsel pointed out that the individual suing the police was also arrested in the Bronx in the early morning and the criminal case was later dismissed; and counsel claimed that “it goes directly to my theory of this case that these are [rogue] cops” (A. 36). The prosecutor objected, arguing a lawsuit, similar to an arrest, was “evidence of nothing” (A. 37). Defense counsel responded that the lawsuit was 17 “clearly evidence of prior bad acts” (A. 37), again emphasizing that he was seeking to impeach by the fact of the filing of a civil suit itself Indeed, each time the prosecutor pointed out that the “fact of getting sued” was not proper impeachment material (A. 37, 58), defendant never alerted the trial court that his claim was anything else and remained silent. As the trial continued, and before Sergeant Deevy’s testimony, defense counsel renewed her request to question Deevy “about the civil rights lawsuit” (A. 153). Again, defendant never alerted the court that it was his intention, as he now claims on appeal, to question the police witness about his alleged prior bad acts (i.e., specific facts underlying the lawsuit beyond the general vague assertions in the complaint that constitutes alleged misconduct by this particular police officer). In fact, defendant never detailed what each witness was alleged to have specifically done that constituted the alleged prior acts in the federal lawsuit. Never. Even when the court ruled on defendant’s application, and framed it as an inquiry “of these officers about the fact that apparently there’s been a lawsuit instigated against them,” defendant never corrected the court or suggested, let alone “make it clear,” that he was “interested in the facts and acts that led to the lawsuit,” as he states in his brief (see defendant’s brief, p. 31). Defendant was given every opportunity in the trial court to articulate and advance his present claim, but he never did so. In light of this record, the Appellate Division properly 18 found that defendant did not seek to ask anything about the underlying facts of the lawsuit (Ingram, 125 AD3d at 558), and, hence, that his present claim was unpreserved. And based on that same record, this Court as well should conclude that defendant has failed to preserve his current claim (see, e.g., Miranda, 27 NY3d at 932; Graham, 25 NY3d at 996-997). Similarly defendant’s constitutional claim, that the exclusion of the purported impeaching evidence deprived him of a fair trial under the Fourteenth Amendment (see defendant’s brief, p. 17), is unpreserved. Defendant never advanced in the trial court he had a constitutional right that would be violated by the court barring impeachment of the police witnesses by the fact that a civil lawsuit had been filed against them. This constitutional claim is thus unpreserved as well (see, e.g., People v Lane, 7 NY3d 888 [2006] [failure to raise constitutional claims in trial court rendered them unpreserved for Court’s review]). B. Relevant Law on the Court’s Exercise ofDiscretion in Cross-Examination Although a criminal defendant has a guaranteed right to confront all adverse witnesses through cross-examination (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; Davis vAlaska, 415 US 308 [1974]), this right has limitations (see People v Hayes, 17 NY3d 46, 53 [2011]; People v Williwns, 81 NY2d 303, 313 [1993); People v Stanard, 42 NY2d 74, 83 [1977)). A trial court is afforded broad discretion to determine the scope of cross-examination (Hayes, 17 NY3d at 53), 19 concerning collateral matters designed to impeach credibility (see People v Gissendanner, 48 NY2d 543, 548 [1979] [a defendant’s Sixth Amendment confrontation and fair trial rights require “no such compulsion to examine records. motivated by nothing more than impeachment of witnesses’ general credibility” its availability rests largely on the exercise of a sound discretion by the trial court”]; People vSchwartzman, 24 NY2d 241 [1969]). In exercising this broad discretion, a court must “weigh the probative value of such evidence against the possibility that it ‘would conthse the main issue and mislead thejury. . or create substantial danger of undue prejudice to one of the parties” (People v Powell, _NY3d_, 2016 WL 1306692 [April 5, 2016]; Peoplev Corby, 6NY3d 231, 234 [2005) quoting Prince, Richardson on Evidence § 4-103 [Farrell 11th ed]). And a trial court’s ruling limiting cross-examination designed to impeach credibility is reviewed under the deferential abuse of discretion standard (People v Dtffr, 36 NY2d 258, 262-263 [1975]; see also PeoplevAska, 91 NY2d 979, 981 [1998]; People v Hudy, 73 NY2d 40, 56 [1988]). True, a witness may be cross-examined about any specific immoral, vicious, criminal or wrongful act probative of the witness’s credibility (see People v Webster, 139 NY 73,84 [1893]; PeoplevSorge, 301 NY 198 [1950];Peoplev Alamo, 23 NY2d 630 [1969]; People vSchwartzman, 24 NY2d 241 [1969]; Dufj5, 36 NY2d at 258; Badr v Hogan, 75 NY2d 629, 634 [1990]). But, the mere fact 20 that an individual was arrested or indicted is not permissible impeachment by alleged misconduct (People v Miller, 91 NY2d 372, 380 [1998]; People v Rodriguez, 38 NY2d 95, 101 [1975]; People v Morrison, 194 NY 175, 177 [1909]; People v Cascone, 185 NY 317, 334 [1906]). There is no probative value in eliciting that a witness had been previously charged or “processed,” as there is “no logical connection between a prior unproven charge and that witness’ credibility” (People v Cook, 37 NY2d 591, 596 [1975]; c/People v Munoz, 291 AD2d 287 [1st Dept 2002] [defendant permitted to ask victim whether he shot defendant’s brother; court properly precluded elicitation of the fact that victim was under indictment]); People vDaniels, 225 AD2d 632 [2d Dept 1996] [trial court providently exercised its discretion in allowing defendant to cross-examine complainant about facts underlying arrest but not the arrest itself, which did not result in a conviction]).15 Further circumscribing impeachment through acts of misconduct is that the cross-examiner must establish he or she is proceeding in good faith and upon a reasonable basis in fact about the alleged acts (Duffi’, 36 NY2d at 262; People v I Similarly, an acquittal of criminal charges or dismissal on the merits (which indicates the absence of a reasonable basis for believing the truth of the charges) contravenes the good-faith and basis-in-fact requirement (People v Steele, 168 AD2d 937, 938 [4th Dept 1990]; cf People v Vidal, 26 NY2d 249, 253 [1970] [dismissals involving “unexplained termination” of the charge, did not preclude cross-examination of the underlying acts; moreover, no showing was made that the questioning was not done in good faith]; People v Francis, 112 AD2d 167 [2d Dept 1985]). 21 Kass, 25 NY2d 123, 126 [1969]; People vAlamo, 23 NY2d 630 [1969]; People v Sorge, 301 NY 198, 200 [1950] [questions are not improper when they “have basis in fact and are asked . . . in good faith”]). Proceeding in good faith requires a sufficiently reliable source of information, not mere accusations or nonspecific information (see e.g., People v Chandler, 94 AD3d 1155 [3rd Dept 2012] [accusations made against suspended police officer not permissible impeachment evidence]; People vAntonetty, 268 AD2d 254 [1st Dept 2000] [impermissible to elicit only accusations against a police witness]; People v Macon, 256 AD2d 134, 134 [1st Dept 1998] [good faith basis not established with information which was “speculative and based upon totally unreliable rumor”]). Moreover, the information must be related to specific bad acts alleged to have been committed by the particular witness (see People v Thomas, 46 NY2d 100, 105 [1978] [civilian complaint filed against fellow officer “too remote” to constitute impeachment evidence against arresting officer]; People v Elliot, 127 AD3d 779 [2d Dept] [no reasonable basis in fact for finding that police officer engaged in any immoral, vicious, or criminal act in connection with unrelated police shooting], lv denied, 26 NY3d 928 [2015]; People v Andrew, 54 AD3d 618, 618 [1st Dept 2008] [no good faith basis for eliciting underlying facts of federal lawsuit where complaints “did not allege, or even support an inference” that the particular witness “personally engaged in any specific misconduct”]). 22 C The Trial Court Soundly Exercised Its Discretion in Precluding Inquiry Regarding the Mere Existence of the Federal Lawsuit. Defendant Never Provided a Good Faith Basis and Reasonable Basis in Fact to Believe That Sanchez or Deevy Engaged in Specj/ic Acts ofMisconduct. The prosecutor’s objection to defendant’s question to Sanchez, “And have you ever been sued” (A. 35), was properly sustained by the trial court because as the Appellate Division found, “the mere existence of the lawsuit was not a proper subject for cross-examination” (see Ingram, 125 AD3d at 558; Andrew, 54 AD3d at 618). Defendant’s stated reason for the question—that it was “clearly evidence of prior bad acts” (A. 37), showed the proposed cross-examination risked substantial prejudice without any counterbalancing probative value, as a lawsuit, like an arrest or indictment, is merely an unresolved accusation, not evidence of misconduct and thus, not probative of the witness’ credibility (see Mille, 91 NY2d at 380). Precisely for this reason, the trial court properly exercised its discretion to preclude this line of questioning. Contrary to defendant’s claim, there was nothing ironic as to how the court either treated these witnesses or rendered its ruling (see defendant’s brief, pp. 27-28), as defendant, unlike the prosecutor in his Sandoval application, presented no factual basis to permit him to ask the question. As previously discussed, defendant never proposed, as he now claims on appeal, to question Sanchez or Deevy about any specific acts of misconduct. However, even if this record could be interpreted as a request to question them about the underlying facts of the lawsuit, defendant failed to provide a good faith 23 basis and reasonable basis in fact to believe either one of the witnesses had engaged in specific acts of misconduct. Failing that, moreover, the trial court properly exercised its evidentiary discretion to prohibit cross-examination on an unresolved allegation of wrongdoing that, if placed before the jury, would potentially lead to impermissible jury speculation about the lawsuit and the police witnesses’ conduct generally without any concomitant probative value as impeachment evidence (see generally Powell, NY3d , 2016 WL 1306692; see also, e.g., Peoplev Coleman, 206 Ill.2d 261, 267 [2002] [discussing rule in Illinois, and observing that “[m]ere evidence of a civil suit against an officer charging some breach of duty unrelated to the defendant’s case is not admissible to impeach the officer,” citing and discussing People v Davis, 193 IIl.App3d 1001 [1990]]; State v Bova, 240 Conn. 210, 220-221 [1997] [observing “[t]he defendant has failed to demonstrate how the two pending claims against Police Officer Can alleging the use of excessive force bear any particular relevance to his veracity as a witness in this case, especially since those claims remain unproven”]). Thus, when initially discussing the federal lawsuit defense counsel was vague and conclusory: that it alleged the “whole narcotics team” engaged in “false arrest, excessive force, illegal strip search, and fabricated evidence” (A. 36). While counsel noted Reyes alleged he was “struck in the back several times, struck in his body” (A. 36), she never particularized with specificity the alleged bad acts 24 done by Sanchez, Deevy, or any other officer on the team. Expressed another way, defendant offered nothing in the way of specific bad acts that Sanchez or Deevy were alleged to have committed, nor some reasonable basis to believe these witnesses were in fact involved (apart from the fact that they belonged to this team) in other than general, conclusory terms made by Reyes (see Andrew, 54 AD3d at 618 [no good faith basis for eliciting underlying facts of federal lawsuit, as the federal complaints “did not allege, or even support an inference, that this detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers”]). And, defendant’s reference to the general allegations contained in the federal lawsuit did not provide a good faith basis to question either Sanchez or Deevy with regard to the lawsuit. Without specific acts of misconduct there was no reasonable basis in fact to question the witness’ credibility (compare People v Elliot, 127 AD3d 779 [2d Dept 2015] [no reasonable basis in fact for finding that officer engaged in any immoral, vicious, or criminal act in connection with unrelated police shooting]; and People v Padilla, 28 AD3d 365 [1st Dept 2006] [defendant unable to establish good faith basis for questioning since facts surrounding the arrest were not revealed]; and People v Francis, 15 AD3d 318 [1St Dept 2005] [sufficient good faith basis did not exist when specific acts not revealed]; with People vDaley, 9 AD3d 601 [3d Dept 2004] [good faith basis existed for 25 questioning officer about a federal lawsuit filed by another inmate asserting that the officer assaulted him]; and People vJones, 193 AD2d 696 [2d Dept 1993] [no basis to restrict cross-examination of witness about “various civil actions brought against him for alleged police brutality, false arrest, and his alleged use of excessive force”]). Even if it could be inferred that some of the officers on the narcotics team may have engaged in some prior bad acts during Reyes’ arrest, it would have been unfair to infer that every officer named in the lawsuit did as well (cf People v Thomas, 46 NY2d 100, 105 [1978] [inference that the defendant wished to convey about arresting officers’ knowledge of civilian complaint filed against fellow officer “too remote”)). Moreover, contrary to defendant’s argument, no disparity exists between preclusion of cross-examination of the police witness’ solely on the nonspecific grounds alleged in the federal lawsuit and this Court’s holdings in People v Alamo (23 NY2d 630 [1969]) and People vKass (25 NY2d 123 [1969]) (see defendant’s brief, p. 29). Good faith to impeach the defendants on cross-examination was established in both Alamo and Kass because the prosecutors’ sources (a police officer in Alamo; a jeweler and his attorney in Kass), provided specific details regarding the purported acts of misconduct committed by the defendants. Here, however, it is not the source of the information (i.e., the federal complaint) but the lack of specific allegations of prior bad acts against Sanchez and Deevy, which 26 provided the basis for the trial court to appropriately restrict in its evidentiary discretion certain cross-examination that, on this record, was not probative of credibility and seriously risked injection of substantial prejudice: jury speculation about the lawsuit, and impermissible tainting of police witnesses by the mere lodging of sensational allegations. Nor does People v Garrett (23 NY3d 878 [2014]), relied on by defendant, support his position. Garrett refused to interpret Brady to impute knowledge to the trial prosecutor of allegations in an unrelated federal civil lawsuit against an officer who had participated in the investigation of defendant’s case and testified for the prosecution (Id. at 889). In holding that no prosecutorial suppression of favorable information occurred, the Court also found the allegations in the civil complaint were favorable to Garrett “as impeachment evidence” (ii at 886), and thus were favorable evidence, but “the value of the undisclosed information as admissible impeachment evidence would have been, at best, minimal” (Id. at 892). The federal complaint in Garrett “described coercive tactics [the officer] allegedly used against the plaintiffs will,” arguably mirroring Garrett’s allegations against the officer in the criminal case, thus supporting Garrett’s false confession theory (Id.). Manifestly clear is that Garrett concerned the scope of a prosecutor’s disclosure obligation, it announced no bright-line evidentiaiy rule permitting cross examination of police officers predicated on unresolved allegations made in any 27 civil suit against them (no matter how remote or tangential) by former arrestees. Even in Garrett, when the civil allegations of misconduct were made part of the record, and described police misconduct that arguably supported a defense, the civil suit was still deemed only marginally probative, as it arose from an unrelated case. Indeed the lack of probative value in defendant’s proposed line of cross- examination is highlighted even further when juxtaposed to the facts in Garrett; here, in marked contrast, the allegations of misconduct alleged against each officer were never set forth with particularity, for defendant sought to use the federal lawsuit to impeach the narcotics team as a whole and by their association with that team, to taint Sanchez and Deevy, as well as the entire team, as “rogue cops.” If the civil complaint in Garrett only proved marginally probative, then necessarily the proposed line of remote and speculative cross-examination in this case was properly barred. Garrett prescribed when certain information may have to be disclosed, not when such information, once disclosed, is admissible to impeach. D. Even V There Was Any Error It Was Harmless The evidence of defendant’s guilt of criminal possession of a weapon in the second degree was overwhelming and there was no significant probability’ that the jury would have acquitted him if the limited cross-examination had occurred (People v Crimmins, 36 NY2d 230, 24 1-242 [1975]; People vKello, 96 NY2d 740 [2001] [applying Crimmins state harmless error analysis to an unpreserved claim of 28 federal constitutional error]).16 Deevy and Sanchez’s testimonies were corroborated by Schaffer, the recovery of the gun, and the radio transmissions made immediately after defendant’s arrest. Both Deevy and Schaffer testified while waiting at a red light they saw defendant holding a large bulge at his waistband, running at “flaIl speed” like he was trying to get away from someone. Defendant then evaded the officers once told, “Police, don’t move.” Defendant’s actions obviously required the police to investigate. Otherwise, they would have neglected their duty as police officers. Deevy credibly testified that when he chased defendant around the corner he swung out wide, as taught in the police academy, to protect himself He then saw defendant holding a gun in his hand, while Schaeffer heard the pop and muzzle flash as he approached defendant. Schaffer then grabbed the gun out of defendant’s hand and threw it to the ground. Sanchez quickly arrived at the scene and picked up the operable gun from the ground, which contained four live rounds and one spent shell. Without any time to “frame” defendant, as he claimed at both trial and on appeal, the police radioed that shots were fired by defendant and an officer, and that the gun was recovered (A. 99-100), 16 Defendant implicitly concedes that his federal constitutional claim of error is unpreserved by only analyzing harmless error under the Crimmins state standard (see defendant’s brief, p. 32), 29 The inconsistencies raised by defendant (e.g., the placement of the spent shell, and packaging of the gun and ammunition), did not negate the fact that defendant possessed a weapon. As borne out in the testimony, given that the gun came from a known source (defendant), there was no need to conduct a DNA test. Defendant’s suggestion of a frame up and planted evidence fell flat on the charge defendant was ultimately convicted of— criminal possession of a weapon in the second degree. Indeed, there was no significant probability that the impeachment evidence would have affected the jury’s verdict. Given the overwhelming evidence of defendant’s guilt and that the police witnesses’ credibility would have been marginally effected by the nonspecific allegations contained in the federal lawsuit, any error in limiting their cross- examinations was clearly harmless (see Andrew, 54 AD3d at 619; People v Hasenflue, 252 AD2d 829 [3rd Dept 1998]). * * * In sum, defendant failed to preserve his claims that the trial court violated his federal constitutional right to a fair trial by improperly curtailing cross- examination of two police witnesses about their prior bad acts underlying the federal lawsuit. The trial court properly exercised its discretion in precluding the sole inquiry made by defendant — the mere existence of the federal lawsuit. Defendant never proffered specific allegations of misconduct with regard to 30 Sanchez and Deevy, thus providing no good faith basis and reasonable basis in fact for such an inquiry. Even if cross-examination was improperly limited, any error was harmless, given the overwhelming evidence of defendant’s guilt of criminal possession of a weapon in the second degree. 31 CONCLUSION The Appellate Division’s order should be affirmed in all respects. Respectfully Submitted, JAMES A. McCARTY Special Acting District Attorney of Bronx County 111 Dr. Martin Luther King, Jr. Blvd. White Plains, New York 10601 Telephone: (914) 995-3496 Facsimile: (914) 995-4672 By: _________ kaftalina Gianfyancescq) Special Assistant DistriciAttorney April 27, 2016 RAFFAELINA GIANFRANCESCO LAURIE G. SAPAKOFF STEVEN A. BENDER Special Assistant District Attorneys Of Counsel 32