The People, Respondent,v.Tyrell Ingram, Appellant.BriefN.Y.June 1, 2016State of New York Court of Appeals BRIEF FOR DEFENDANT-APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, First Department Criminal Court, Bronx County, Indictment No. 4395/08 PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TYRELL INGRAM, Defendant-Appellant. TO BE ARGUED BY: ELSA MITSOGLOU COURT OF APPEALS NO. APL-2015-00221 TIME REQUESTED: 15 MINUTES STANLEY NEUSTADTER, ESQ. Attorneys for Defendant-Appellant Cardozo Appeals Clinic 55 Fifth Avenue New York, New York 10003 (212) 790-0410 Date Completed: December 22, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF FACTS ........................................................................................1 Introduction......................................................................................................1 The People’s Case: The Team.........................................................................3 The Team That Night.......................................................................................4 Crime Scene Unit Investigations .....................................................................8 Limits Placed on Cross-Examination of Key Witnesses...............................11 ARGUMENT In a case where credibility was a key issue, the erroneous exclusion of proper impeaching evidence involving the prosecution's key witnesses’ prior bad acts deprived appellant of his right to a fair trial in violation of the Fourteenth Amendment of the United States Constitution .....................................17 A. Cross Examination: “the greatest legal engine ever invented for the discovery of truth” .........................................................................................17 B. The distinct New York State right to cross-examine witnesses about prior bad acts........................................................................................18 1. Basic principles about cross-examination into prior bad acts ..............18 2. “Good faith and reasonable basis in fact” limitations on cross examination into prior bad acts ................................................................20 3. Limitations on cross-examination into prior bad acts when the witness is the defendant............................................................................22 4. Cross-examination of prior bad acts alleged in pending lawsuits........25 ii C. The cross-examination attempted by the defense was squarely within the parameters articulated by this Court.............................................27 D. The court’s absolute preclusion of valid efforts to impeach key prosecution witnesses was an abuse of discretion and prejudicial error................................................................................................................32 CONCLUSION........................................................................................................35 iii TABLE OF AUTHORITIES Case Page(s) Federal California v. Green, 399 U.S. 149 (1970)................................................................17 Castellanos v. Kirkpatrick, 2015 WL 7312908 (E.D.N.Y.3Nov. 18, 2015) ...........25 Davis v. Alaska, 415 U.S. 308 (1974) ...............................................................17, 18 Douglas v. Alabama, 380 U.S. 415 (1965)..............................................................17 Greene v. McElroy, 360 U.S. 474 (1959)................................................................18 United States v. Cardillo, 316 F.2d 606 (2d Circ. 1963) .........................................17 State People v. Alamo, 23 N.Y.2d 630 (1969) ...............................................21, 28, 29, 30 People v. Allen, 67 A.D.2d 558 (1979), aff'd, 50 N.Y.2d 898, 408 N.E.2d 917 (1980).......................................................................................24, 27 People v. Andrew, 54 A.D.3d 618 (1st Dept. 2008)..........................................30, 33 People v. Cascone, 185 N.Y. 317 (1906).................................................................19 People v. Chin, 67 N.Y.2d 22 (1986) ......................................................................17 People v. Corby, 6 N.Y.3d 231 (2005) ....................................................................34 People v. Crimmins, 36 N.Y.2d 230 (1975) ............................................................32 People v. Daley, 9 A.D.3d 601 (3rd Dept. 2004) ....................................................26 People v. Garrett, 23 N.Y.3d 878 (2014).....................................................25, 26, 27 iv People v. Gissendanner, 48 N.Y.2d 543 (1979) ......................................................18 People v. Hubbard, 132 A.D.3d 1013 (2nd Dept. 2015) .........................................26 People v. Hudy, 73 N.Y.2d 40 (1988) ............................................................ 14 fn. 5 People v. Ingram, 125 A.D.3d 558 (1st Dept. 2015) ...............................................16 People v. Jones, 193 A.D.2d 696 (2nd Dept. 1993). ...................................24, 26, 33 People v. Kass, 25 N.Y.2d 123 (1969) ..............................................................21, 28 People v. Marzed, 161 Misc.2d 309 (NY County 1993) ................................ 14 fn. 6 People v. McGee, 68 N.Y.2d 328 (1986) ..........................................................17, 24 People v. Miller, 91 N.Y.2d 372 (1998) ..................................................................19 People v. Molineux, 168 N.Y. 264 (1901)...............................................................23 People v. Sandoval, 34 N.Y.2d 371 (1974) .................................................22, 24, 27 People v. Santiago, 15 N.Y.2d 640 (1964) ..............................................................20 People v. Santos, 306 A.D.2d 197, aff'd, 1 N.Y.3d 548 (1st Dept. 2003) ........................................................................................ 13 fn. 4, 34 People v. Sorge, 301 N.Y. 198 (1950).....................................................................19 People v. Swartzman, 24 N.Y.2d 241 (1969) ..........................................................22 People v. Ventimiglia, 52 N.Y.2d 350 (1981) .........................................................23 People v. Vidal, 26 N.Y.2d 249 (1970) ...................................................................20 People v. Webster, 139 N.Y. 73 (1893)...................................................................19 People v. Williams, 142 A.D.2d 310 (2nd Dept. 1988) ..........................................24 v Statute Page(s) Federal 42 United States Code § 1983..................................................................................11 1 STATE OF NEW YORK COURT OF APPEALS -------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : TYRELL INGRAM, : Defendant-Appellant. : -------------------------------------------------------------X BRIEF FOR APPELLANT STATEMENT OF FACTS Introduction At 2.30 a.m. on September 29, 2008, almost five hours into their undercover buy-and-bust operation, the Bronx Narcotics Field Team of eight officers had already arrested four people and sent their undercover officer home. Still remaining in the area, Sergeant Timothy Deevy and Police Detective Anthony Schaffer were alerted through the unrecorded point-to-point team-only radio that there had been an arrest at Vyse Avenue. About twenty minutes after they were told that and while on their way to verify this arrest, Sgt. Deevy and Det. Schaffer were stopped at a light in their 2 unmarked car. From the opposite side of the street they saw the 24-year-old appellant, Tyrell Ingram, an African-American Bronx resident, wearing a dark hoodie and dark pants, run while holding his right waistband area, cross the street and run south on Hoe Avenue. His house was a few seconds away. The officers followed appellant and pulled up next to him on his left. At some point, Sgt. Deevy showed him his badge and told appellant to stop. Appellant supposedly evinced surprise, turned away from the direction of his home, and toward Vyse Avenue. Appellant allegedly led the officers on a chase that ended outside Vyse Avenue when he supposedly took out a gun and shot at Sgt. Deevy who then shot back. A struggle ensued. Other officers from the team arrived and found a loaded gun on the ground which Sgt. Deevy and Det. Schaffer said was held by appellant. They gave that gun to yet other members of the same team who took it to the precinct before the Crime Scene Unit detectives had even arrived. That gun was later vouchered by another member of the same team and there were no fingerprints found on its ammunition. While a DNA test and a fingerprint test on the weapon were ordered, they were never performed. Appellant was charged with Attempted Murder in the First Degree, Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree (based on intent to use unlawfully), Criminal Possession of a 3 Weapon in the Second Degree (based on possession of a loaded firearm not in a home or place of business), and Criminal Possession of a Weapon in the Third Degree (based on knowing possession of an operable firearm). After a jury trial, he was convicted of only one count of Criminal Possession of a Weapon in the Second Degree based on possession of a loaded firearm not in a home or place of business. The People’s Case: The Team Most of the People’s witnesses were members of the Bronx Narcotics Field team and most of them had worked together for at least four years. [Manuel Sanchez: A. 81, Gregory Perpall: A. 87, Amado Batista: A. 116, Anthony Schaffer: A. 264, Timothy Deevy: A. 159]. The field team involved in this incident was headed by Sgt. Deevy, an ex-military man, who retired a few months after this incident by “buying back” his military time. [A. 159-160]. Bronx Narcotics field teams investigate complaints about narcotics by doing buy-and-bust operations. [Sanchez: A. 9]. The undercovers are always the driving force of these operations, initiating the process of arresting someone. [A. 38-39]. . . The team members communicate over an unrecorded, “closed” limited frequency radio that only they have access to. [Perpall: A. 101, Sanchez: A. 47]. 1 Page references preceded by “A.” refer to pages of the Appendix which contain transcripts of the Trial held February 9, 14, 15, 16, 17, 22, and 23, 2011 4 The purpose of having a radio that is “closed” is so the teams do not get interference and are better able to protect the undercover who is the central focus of the team’s efforts. [A. 47, 53]. The Team That Night On the night of the incident, during the early hours of September 29, 2008, the undercover had already gone home [A. 40], but the officers were still out and still used the “closed” radio to communicate. [A. 14]. Even though the undercover was no longer present to establish the predicate for an arrest, Police Officers Sanchez and Perpall, in the “chase car,” had made an arrest on their own at 2:10 a.m. at Vyse Avenue. [Perpall: A. 108-109, Deevy: A. 200-201]. P.O. Perpall and Sgt. Deevy testified that the arresting officers used the closed frequency point-to-point radio to ask Sgt. Deevy and Det. Schaffer, who was in the “leader car,” to come and check on the arrest. [Id.] A prisoner van driven by Officer Batista had also reported to Vyse, the site of the arrest, to pick up the arrested person. [Batista: A. 125]. Officer Batista testified that it was Det. Schaffer who made that 2:10 a.m. arrest. [A. 126]. The prisoner van left 1690 Vyse with the arrested person and proceeded to four blocks away. [A. 127]. The Sanchez/Perpall “chase car” left Vyse and 5 was waiting for the Schaffer/Deevy “leader car” two blocks away at 173rd Street and Southern Boulevard. [Perpall: A. 109]. Sgt. Deevy testified that when he and Det. Schaffer first saw appellant at around 2:30 a.m., they were on their way to Sanchez and Perpall to verify the 2:10 a.m. arrest. [Deevy: A. 200-201]. Sgt. Deevy testified that he had no idea and did not remember at all why it took them 20 or more minutes to reach Sanchez and Perpall. [Id.] Sgt. Deevy and Det. Schaffer testified that at 2:30 a.m., they were stopped at the light on the northwest corner of 174th street and Hoe Avenue. [Deevy: A. 162, Schaffer: A. 267]. Both officers testified that when they first saw appellant, he was running westbound on 174th street. Then, they testified, he turned down Hoe Avenue and ran southbound on the west side of Hoe Avenue. [Deevy: A. 165, Schaffer: A. 268]. While he was running across the street from their car at the light, the officers said, appellant was holding his front, right waistband area over his hoodie as if he were holding a large bulge. [A. 198]. The officers then followed him down Hoe Avenue, and pulled up to him. [A. 165]. Sgt. Deevy testified that he showed appellant his police badge and shield through the rolled-down window and said “Police, don’t move,” while Det. Schaffer testified that Sgt. Deevy jumped out of the car and showed his shield and said “Police.” [Deevy: A. 165, 202, Schaffer: A. 268]. 6 Then, according to the officers, appellant changed direction, and led them on a chase to Vyse Avenue. [Deevy: A. 166, Schaffer: A. 269]. The two officers testified that when Det. Schaffer was approaching appellant from the south on Vyse Avenue and Sgt. Deevy was approaching him from the north on Vyse Avenue, appellant pulled out a gun and shot at Sgt. Deevy, who was then between two parked cars. [Deevy: A. 167-168, 180-182, 208, Schaffer: A. 270-271]. Sgt. Deevy testified that, while standing between the two parked cars on the street, he shot back at appellant, after which appellant fell to the ground. [A. 168, A. 272]. Shortly after, said the officers, appellant tried to get up and shoot at Sgt. Deevy again, who was still between the parked cars and whose Glock 19 gun had malfunctioned, leaving a bullet sticking out of the top of the gun that he managed to remove [A. 168-170, A. 272]. Det. Schaffer stated that, by the time Sgt. Deevy had done that, he had caught up to appellant, pulled a gun out of appellant’s hand, and threw it away from them. [A. 171, A. 274-275]. Both Sgt. Deevy and Det. Schaffer testified that they then struggled with appellant in order to place him under arrest. [Id.] The arrest took place in front of Vyse Avenue, which was also the site of the previous arrest made at 2:10 a.m. [A. 184, 210]. In the meantime, Officers Sanchez and Perpall had received a call from either Sgt. Deevy or Det. Schaffer on the point-to-point radio saying that a person was running southbound on Vyse, so they drove on 173rd Street to Vyse Avenue. 7 [Sanchez: A. 14]. As they turned left on Vyse, they heard two gunshots. [Id.] They eventually saw Sgt. Deevy and Det. Schaffer on the ground on top of appellant, and Officer Sanchez saw a gun on the ground by their feet, picked it up, and unloaded it in his hand. [Sanchez: A. 15, Perpall: A. 92]. It was a .38, five- bullet chamber revolver that had four live bullets and one spent casing. [Id.]2 Officer Perpall testified that he helped Det. Schaffer and Sgt. Deevy handcuff appellant and then changed frequency on the point-to-point and reached Central Dispatch to ask for help. [A. 92-94]. Officer Batista, in the prisoner van four blocks away, testified that he never received the leader car’s point-to-point transmission about the foot chase but that the prisoner van’s driver “just decided” to drive up to Vyse Avenue. [Batista: A. 128]. On 173rd Street and Vyse Avenue, Batista and his partner saw lights and sirens and, when they finally got to the scene, other officers had already arrived and blocked off the street, but someone let them in. [A. 128-130]. Even though many other police officers from the precinct were present, Sanchez handed the .38 he found on the ground and the ammunition that had been in it to Batista, who testified that he took the gun to the precinct and got there at 3:00 a.m. [A. 131]. 2 A photograph of this very small “pocket” revolver, a Special Charter Arms Revolver bearing the brand name “Undercover,” was introduced as People’s Exhibit 5. 8 Crime Scene Unit Investigations The .38 caliber gun that was given to Officer Batista by Officer Sanchez and rushed out of the scene and to the precinct by 3:00 a.m. was eventually delivered to Crime Scene Unit Detective Paul Brown. [Brown: A. 237]. Det. Brown got a call at 3:20 a.m. about this incident and initially was sent to the hospital where Sgt. Deevy and Det. Schaffer were. [A. 246]. Det. Brown got back to the precinct at around 10:00 a.m. that morning and after that Batista gave him the .38 weapon. [A. 249-250]. Unlike Sanchez and Batista, Det. Brown testified that when he received the weapon from Batista, the ammunition was not outside the chamber, but inside it. [A. 250]. Det. Brown tested only the ammunition for fingerprints but found none. [A. 238]. Det. Brown packaged the gun in a cardboard box, while the four bullets and shell casing were packaged separately in a plastic zip-lock bag. [A. 239]. He also produced a report ordering examinations to be performed: fingerprint analysis of the weapon and comparison to database of prints; operability test of both gun and bullets; and, DNA comparison to a known person. [A. 262]. Det. Brown finally gave all of this — the packaged gun in the cardboard box with the four bullets and shell casing separately in a zip-lock bag and the report ordering examinations to still be performed — to Det. Schaffer, who was the 9 vouchering officer for these items and who had to complete the voucher before any of the above tests could be performed on this gun. [A. 240, 260]. Det. Schaffer vouchered this gun. [Schaffer: A. 278]. The gun finally arrived in the hands of Michael Bruestle, a Firearms Operability expert. Bruestle received Det. Schaffer’s voucher, the complaint report, and the request for laboratory examination. [Bruestle: A. 145]. Contrary to Det. Brown’s testimony about how he had packaged the gun and ammunition separately, Bruestle testified that when he received the weapon and ammunition, everything was in a sealed security envelope and placed within a cardboard box. [A. 138-139]. Also, contrary to the laboratory examination requests given by the Crime Scene Unit Det. Brown, Bruestle said that when the package reached him after passing through Det. Schaffer, the request indicated that the weapon had already been fingerprinted and swabbed for DNA and that only a DNA swab from the suspect needed to be taken for comparison. [A. 147]. Bruestle also testified that he just went by that report and had no idea if these tests were actually performed and that, because of that, he went ahead and did the operability test, even though that would make it impossible to perform any fingerprint or DNA test. [A. 147, 139, Brown: A. 253-257]. 10 Another Crime Scene Unit Detective, Det. Coleen Gillis, was notified of the incident at 3:20 a.m., dispatched to the scene at 3:25 a.m., and arrived there at 4:00 a.m. [Gillis: A. 72]. During her walkthrough, Det. Gillis recovered only appellant’s black sneaker, a live bullet and a spent cartridge casing that Ballistics Expert Jonathan Fox determined was from Sgt. Deevy’s Glock 19. [A. 64-65, Fox: A. 215, Deevy: A. 161]. Fox testified that the malfunction that Sgt. Deevy’s Glock had during the incident, was common because of the standard alteration of police guns to make their triggers harder to pull and therefore slower to fire. [Fox: A. 221-222, 225]. Fox explained that what usually happens when this malfunction occurs is that a live bullet sticks out on top of the gun and that when removed, the bullet should fall down exactly where the person holding the gun is standing. [A. 229]. Fox also testified that, when a bullet is fired from a Glock, the cartridge casing should be ejected from the ejector port of the gun, and is likely to land near where the person with the gun is standing. [A. 221]. Det. Gillis recovered the Glock cartridge casing and live bullet on the sidewalk, by the wall of the building, and not in between the parked cars where Sgt. Deevy testified he was when he shot his gun at appellant and when his gun malfunctioned. [Gillis: A. 65-66, 82]. 11 Det. Gillis never recovered a bullet from the .38 caliber gun. [A. 70]. But she did prepare a sketch of the scene with distances marked and license plates on the cars indicating the way the cars were facing on the street. The sketch was used in later Internal Affairs Bureau investigations and interviews of this midnight team about this incident. [A. 77]. Limits Placed on Cross-Examination of Key Witnesses On the first day of trial, the defense attempted to question Det. Manuel Sanchez regarding an earlier time in his Bronx Narcotics career, when he and the rest of the narcotics field team involved in this case were sued in the Eastern District of New York by a plaintiff named Marcus Reyes. [A. 36]. On June 18, 2010, after the criminal charges against him were dismissed, Marcus Reyes brought a lawsuit pursuant to 42 U.S.C. § 1983 against all of the same members of the narcotics field team involved here — Det. Sanchez, Det. Schaffer, Det. Batista, Det. Perpall, Det. Howell, Det. Roman, and Sgt. Deevy — alleging that they fabricated evidence, falsely arrested him, used excessive force, and illegally strip searched him. [Id.] Reyes alleged that these officers struck him in the back and struck his body several times when they falsely arrested him at 3:15 a.m., at Morris Avenue also in the Bronx. [A. 36-37]. 12 Relying on the formal allegations in Reyes’ complaint as a good faith basis for inquiring about this police misconduct, the defense asked Det. Sanchez, “Have you ever been sued?” [A. 35]. The Court sustained the People’s objection to that question and subsequently held a sidebar conference about the defense’s ability to proceed with this line of questioning. The defense then started outlining the acts alleged in the Reyes complaint and connecting them to her theory that these officers were “rogue cops” who had mishandled physical evidence and given false testimony about appellant’s conduct. Ms. Dula: Apparently, this whole narcotics team was the subject of a lawsuit involving false arrest, excessive force, illegal strip search, and fabricated evidence, and it is every single witness that he is calling, Batista, Deevy, Brown, Sanchez, Perpall, Schaffer, Roman. The Court: When was this, and what’s the nature of – Ms. Dula: It’s a Federal case. It was filed June 18, 2010 for the defendant, Marcus Reyes. It was an arrest that they all participated in at 3:15 in the morning, in front of Morris Avenue. He alleges excessive force. The case was dismissed. Oddly, he never came in to testify. He was struck in the back, several time, struck in his body, so I think – I do have case law, Judge. I think it goes directly to my theory that these are road [sic.] cops.3 My client when they arrested him, was doing nothing more than running. He wasn’t engaging in any kind of drug sale at the time, at least according to the testimony, so I think that goes directly to – The Court: But this lawsuit was dismissed you said, right? 3 What defense counsel actually said here was most likely “rogue cops.” 13 Ms. Dula: This was not the person’s case, Marcus Reyes. His case was dismissed, and after his case was dismissed then he filed this lawsuit. The Court: Oh, oh. He was arrested and the case was dismissed against him and this is a pending lawsuit? Ms. Dula: Yes, right. Mr. Suminski: It’s like an arrest. It’s evidence of nothing. We are all lawyers. You can sue somebody for anything. It is not dispositive. The fact that they are being sued is not – Ms. Dula: I think it is clearly evidence of prior bad acts. Mr. Suminski: Not the fact of getting sued, though. The Court: I’m going to sustain the objection. If you bring in case law I will allow you to recall him. Ms. Dula: Okay. I have case law for you. [A. 35-37]. The next day, Ms. Dula brought the issue up again and argued that evidence about prior bad acts alleged in a complaint have been considered relevant in other cases and could be outcome determinative in this case [A. 56-57]. Ms. Dula: I have a case, People versus Santos,4 which is a First Department case. In that particular case, a department of corrections captain had been charged with assaulting prisoners and falsifying records to conceal those arrests. After trial, the complainant pled guilty, in an administrative 4 The defense appears to have been referring to People v. Santos, 306 A.D.2d 197, aff'd, 1 N.Y.3d 548 (1st Dept. 2003). 14 proceeding, to three assaults on the inmates. The Court, in that case, granted the 4.40 [sic.] motion. [A. 56-57]. She continued: Ms. Dula: I also have a case of People versus Hudy5 (ph), which pertains to bad character. In that case, it was the defendant. But, I think in this case it would stand to reason that that would also apply for the witness, in terms of their credibility. And also People versus Mercha (ph.)6 In that case, the Court found that it was not collateral about witnesses prior contacts with the criminal justice system, and that it should have been admitted, Judge. So, I have – The Court: I’ll review that. But, are any of those cases involving where there were pending charges and they were – the one of the attorneys was allowed to ask a witness about a pending case? Ms. Dula: Well, at the time – The Court: In an unrelated matter? Ms. Dula: Both of these cases they didn’t know about anything that was pending. And that was the problem, they did not know about it. I think in this case I do know about it, that’s why I’m making this argument to the Court to say, you know, these were relevant in those cases, the Court found that it was relevant. And that if – if that attorney would have known and then allowed to question the witness about it, then it may have affected the outcome and the cases were – the verdicts were overturned and the defendants got another bite of the apple, Judge. The Court: Anything you want to say, Mr. Suminski? 5 The defense appears to have been referring to People v. Hudy, 73 N.Y.2d 40 (1988). 6 The defense appears to have been referring to People v. Marzed, 161 Misc.2d 309 (NY County 1993). 15 Mr. Suminksi: The question posed to the witness is isn’t it true you were sued. It’s like an arrest. I don’t believe you can ask that. I don't think that case says that. The Court: Let me read the cases and I’ll be in a better position. [A. 56-57]. Then, later in the trial, Ms. Dula argued: Ms. Dula: Judge, and I do believe that the [sic.] Detective Deevy will be testifying tomorrow. I want to renew my request to question him about the civil rights lawsuit. I believe I gave you some case. I didn’t realize he was going to be testifying tomorrow, Judge. The next day, the Court: The Court: Okay. There are two issues. One was the defense request to inquire into the – of these officers about the fact that apparently there’s been a lawsuit instigated against them for what is it, Ms. Dula? Ms. Dula: False arrest. The Court: Okay. It’s a pending lawsuit? Ms. Dula: Excessive force. The Court: It’s a pending lawsuit. I’m not going to allow any inquiry into that. I find the prejudicial effect far outweighs the probative value at this stage, since it is a pending lawsuit. So, that application is denied. [A. 156]. The Defense Case The defense played audio recordings of three 911 calls made by different Bronx residents, some reporting just two or three shots heard, and one in which the caller said that the cops shot a kid and to send an ambulance. [A. 305]. 16 Verdict Appellant was found guilty of Criminal Possession of a Weapon in the Second Degree based on possessing a loaded firearm not in a home or place of business; he was acquitted of the most serious charges. Appellate Division Ruling The Appellate Division, First Department, affirmed Mr. Ingram’s conviction. The court found that the defense had not sought to cross-examine the police officers about their prior bad acts as alleged in a federal civil lawsuit, but sought only to ask about the existence of the lawsuit. The court concluded that the preclusion of such cross-examination was proper because “the mere existence of the lawsuit was not a proper subject for cross-examination.” People v. Ingram, 125 A.D.3d 558 (1st Dept. 2015). The court also found that even if the defense did indeed intend to ask about prior bad acts, it did not establish good faith to do so because the lawsuit did not contain “specific factual allegations” against the police officers. [Id.] 17 ARGUMENT In a case where credibility was a key issue, the erroneous exclusion of proper impeaching evidence involving the prosecution's key witnesses’ prior bad acts deprived appellant of his right to a fair trial in violation of the Fourteenth Amendment of the United States Constitution A. Cross Examination: “the greatest legal engine ever invented for the discovery of truth” The essential significance of cross-examination in a trial has been stated clearly over the years by many courts. Dean Wigmore’s famous statement that cross-examination is “… beyond any doubt the greatest legal engine ever invented for the discovery of truth …”, has been cited by the United States Supreme Court [California v. Green, 399 U.S. 149, 158 (1970)], by the United States Court of Appeals in the Second Circuit [United States v. Cardillo, 316 F.2d 606, 610 (2d Circ. 1963)], and by this Court [(People v. Chin, 67 N.Y.2d 22, 27 (1986)]. See also Davis v. Alaska, 415 U.S. 308, 316 (1974) [“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”]; Douglas v. Alabama, 380 U.S. 415, 418 (1965) [“Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.”]; People v. McGee, 68 N.Y.2d 328, 333 (1986) (In conducting cross examination, counsel “exercises his client’s constitutional right of confrontation.”). 18 The right to confrontation through cross-examination of witnesses is particularly vital when the State’s case depends on testimony rather than on documentary evidence. Greene v. McElroy, 360 U.S. 474, 495 (1959). And the right to cross examine is especially critical when it concerns witnesses whose testimony supplies key elements of the State’s case. Davis, supra at 316-317. Thus, although courts can exercise some discretion to limit cross- examination, as in limiting cross-examination that becomes “repetitive and unduly harassing interrogation,” a defendant’s right to cross-examination of key prosecution witnesses should not be compromised. People v. Gissendanner, 48 N.Y.2d 543, 548 (1979) [“As to those accused of crime, 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 guilt.”] B. The distinct New York State right to cross-examine witnesses about prior bad acts 1. Basic principles about cross-examination into prior bad acts This Court has held that parties can use cross-examination to attempt to generally impeach their adversary’s witnesses by eliciting evidence of the 19 witnesses’ prior bad acts or acts of moral turpitude. People v. Sorge, 301 N.Y. 198 (1950). This Court has also stated that, although parties cannot introduce extrinsic evidence to “prove” a prior bad act as part of their general impeachment of the witness, they can certainly keep “examining the witness himself further on the chance that he may change his testimony or his answer” if they have a good faith basis for the questioning. Id. at 200-201. As this Court explained, the ability to keep asking the witness about a prior bad act even if the witness denies its existence makes sense because otherwise the witness “would have it within his power to render futile most cross-examination.” Id. Although a witness may be “interrogated in cross-examination in regard to any vicious or criminal act of his life” for the purposes of impeachment, the witness may not be interrogated about the fact of an arrest or indictment. People v. Webster, 139 N.Y. 73, 84 (1893); People v. Cascone, 185 N.Y. 317, 334 (1906) [reasoning that the fact of an arrest is “merely an accusation and no evidence of guilt”]; People v. Miller, 91 N.Y.2d 372 (1998) [“the fact of an arrest is not a permitted area of impeachment” emphasis added]. On the other hand, this Court has also established that with certain restrictions and depending on whether the witness is the defendant or not, witnesses can be cross-examined about their prior 20 convictions but cannot be cross-examined about charges of which they have been acquitted. People v. Santiago, 15 N.Y.2d 640 (1964). Further, this Court has clarified that it is not just the fact of the charges that cannot be inquired into if the witness has been acquitted of those charges, but also the underlying acts of those acquitted charges. People v. Vidal, 26 N.Y.2d 249, 252 (1970) [stating that an unexplained “termination” of a previous charge against the witness is “not an acquittal” and that while an acquittal "bars cross-examination of the underlying acts, ” an unexplained termination does not.] Thus, this Court has established that parties cannot cross-examine witnesses about prior bad acts that have resulted in charges of which the witness has been acquitted but can cross-examine witnesses about prior bad acts that are the subject of pending allegations, provided that the questions are asked in good faith and with a reasonable basis in fact. 2. “Good faith and reasonable basis in fact” limitations on cross examination into prior bad acts Good faith and reasonable basis in fact for asking a defendant about prior bad acts have been found to exist in cases when the information the prosecutor tried to rely on for the questioning was thoroughly inconclusive, told to him by a policeman or an accuser about unrelated cases or incidents, and which could only 21 result in tenuous inferences about the defendant’s doings. People v. Alamo, 23 N.Y.2d 630, 633 (1969); People v. Kass, 25 N.Y.2d 123, 126 (1969). In Alamo, the prosecutor wanted to ask both the defendant and his character witness about an unrelated prior uncharged robbery. The trial court allowed it, the First Department affirmed defendant’s conviction with no opinion, and this Court affirmed the conviction and found that the prosecutor’s questioning was proper. Characterizing the “good faith and reasonable basis in fact” standard as having some “reasonable basis for believing the truth of things” the counsel is asking about, this Court found the standard satisfied. Alamo, at 633. The prosecutor’s good faith consisted in information he had received by a policeman about the unrelated robbery, that the defendant was found in the same room with one of the two people actually convicted of that robbery, at 2:00 am, on a bed but fully dressed, and that the keys to the stolen taxis were found in the same room. Id. at 635. In Kass, the prosecutor wanted to ask the defendant: “is it a fact that right now you have misappropriated two diamonds worth about $4,000 from a jeweler in New York City?” The trial court allowed it, and this Court found the questioning proper because the prosecutor had satisfied the good faith and reasonable basis standard. The prosecutor had good faith because he had talked to a jeweler and his attorney who told him that they had given the defendant diamonds for seven days 22 to examine, that the defendant had not returned them, and that they had arranged a meeting to discuss the return of the diamonds. 3. Limitations on cross-examination into prior bad acts when the witness is the defendant The defendant witness is a special witness because he is both a witness, subject to the necessary test of credibility via cross examination and a defendant, vulnerable to cross-examination also possibly showing that he is “likely to have committed the crime charged.” People v. Swartzman, 24 N.Y.2d 241, 247 (1969). And if the only purpose of cross examining the defendant about his prior crimes is to show that it is likely he has committed the crime charged, then such cross- examination must be excluded. Id. It is exactly this risk that “despite the most clear and forceful limiting instructions to the contrary, … the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” that renders the defendant witness in need of more protections than a non-defendant witness; other witnesses are not on trial for the crime charged and the above risk is simply not present when they take the stand. People v. Sandoval, 34 N.Y.2d 371, 377 (1974). The defendant is a special witness also because it is the defendant who is constitutionally guaranteed the right to a fair trial. The risk that cross examination 23 into the defendant’s prior crimes will also influence the jury into believing that the defendant is guilty of the crime charged determines whether the defendant is deprived of a fair trial or not. Id. at 376. A non-defendant witness does not need nor is he guaranteed the right to a fair trial. The defendant is a special witness also because it is he who is presumed innocent until proven guilty beyond a reasonable doubt. The risk that cross examining the defendant about his prior bad acts will also influence the jury into believing that the defendant is guilty of the crime charged undoes that presumption because it raises a prejudicial presumption of guilt. People v. Molineux, 168 N.Y. 264, 292-293 (1901). The rule excluding evidence of prior uncharged crimes is intended to “eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged.” People v. Ventimiglia, 52 N.Y.2d 350 (1981). This risk of prejudice to the defendant directly threatens and jeopardizes all the fundamental guarantees in our criminal justice system: the presumption of innocence, the need for the prosecution to prove its case beyond a reasonable doubt, the right to a fair trial, the obligation to only be on trial for the crimes in the indictment, and implicitly the right to confront one’s accusers. 24 When the defendant is not the witness, however, cross-examination of that witness about prior charged or uncharged crimes does not endanger any of the above fundamental guarantees. People v. Allen, 67 A.D.2d 558, 560 (1979), aff'd, 50 N.Y.2d 898, 408 N.E.2d 917 (1980) [this Court affirmed the Appellate Division, which reasoned that the trial court was clearly wrong in applying the Sandoval ruling to non-defendant witnesses — two witnesses for the prosecution — because “when the witness is not the defendant, there is no danger that the jury will apply the evidence of prior acts of misconduct to anything but the witness's credibility. Therefore, there is no proper basis to restrict cross-examination of a non-defendant witness as to such prior acts of misconduct.”]; McGee, supra at 332 [“It is evident that the Sandoval rationale applies only when the witness to be cross-examined is also the defendant on trial, for only then can the 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 …”]; People v. Williams, 142 A.D.2d 310, 317 (2nd Dept. 1988) [where the witness is not a defendant there is no rational basis on which to restrict cross- examination with respect to prior misconduct.]; People v. Jones, 193 A.D.2d 696, 697 (2nd Dept. 1993). Even with all the above dangers of cross-examination into the defendant’s prior bad acts, our system still allows such cross-examination under rules laid out 25 in all the above cases and others. Surely, therefore, concern about “prejudice” that outweighs probative value provides a far less justification for precluding cross examination of non-defendant witnesses, like the police officers in this case, about their prior bad acts. 4. Cross-examination of prior bad acts alleged in pending lawsuits Recently, this Court had the opportunity to consider federal civil lawsuits of exactly this kind and their impeachment value in the context of a Brady claim. People v. Garrett, 23 N.Y.3d 878 (2014). In Garrett, this Court found that an unrelated civil lawsuit alleging that the main detective-prosecution witness falsely procured a confession “clearly had an ‘impeachment character’ that favored the defendant’s false confession theory.” Id. at 886. The Court was steadfast in saying that although the civil complaint in question merely contained allegations, “the civil allegations against [the police officer-prosecution witness] were favorable to defendant as impeachment evidence.” Id. Other cases have already followed Garrett’s lead and decided that pending lawsuits revealing the witness was engaged in prior bad acts, like procuring a false confession, can support an effort to impeach that witness. Castellanos v. Kirkpatrick, 2015 WL 7312908 (E.D.N.Y. Nov. 18, 2015) [in a habeas petition, 26 the federal court ordered a detective’s personnel file to be disclosed for in camera review in order to answer petitioner’s complaint that State court limited his cross- examination of the detective concerning allegations in four unrelated civil complaints that the detective “alone or in concert with others ‘engaged in conduct fairly described as fabrication or coercion’”]; People v. Hubbard, 132 A.D.3d 1013, 1013-1014 (2nd Dept. 2015) [citing Garrett, the court found that “evidence concerning allegations that (the detective-witness) had procured a false confession in an unrelated matter involving two police officers, which led to an internal affairs investigation of those officers and a federal lawsuit against, among others, (that detective himself) was favorable to the defense and material.”] And yet other pre-Garrett cases had already ruled that civil actions alleging the witness was engaged in prior bad acts and specific acts of misconduct — like fabricating evidence, using excessive force, falsely arresting someone — can support an effort to attack the witness’s character and show him to be unworthy of belief and are thus proper subjects for cross examination; People v. Jones, supra at 697 (2nd Dept. 1993) [reversed and new trial ordered because Court improperly prevented defense counsel from questioning a police witness about various civil actions brought against him for alleged police brutality, false arrest, and his use of excessive force]; People v. Daley, 9 A.D.3d 601, 602-03 (3rd Dept. 2004) [Court abused its discretion in limiting the cross-examination of a correction officer who 27 was the primary accuser of the defendant by not allowing the defense to inquire further into a federal civil lawsuit brought against the correction officer by another inmate accusing him of assault]. C. The cross-examination attempted by the defense was squarely within the parameters articulated by this Court As in Garrett, the defense in the present case tried to use evidence that had “impeachment character” and was favorable to its theory of the case. In order to impeach the key prosecution police officer witnesses, the defense tried to cross- examine them about an unrelated civil lawsuit that alleged that they fabricated evidence and falsely arrested another person. Since neither Det. Sanchez nor Sgt. Deevy were defendants, there was “no danger that the jury will apply the evidence of prior acts of misconduct to anything but [their] credibility. Therefore, there [was] no proper basis to restrict cross- examination …” Allen, supra at 560. And yes, the trial court did restrict the cross- examination, treating these key prosecution witnesses like they were defendants. Ironically, the trial court had earlier, pursuant to a Sandoval motion, which properly applies only to defendant-witnesses ruled that the prosecution could ask appellant about a prior bad act if he took the stand. Apparently, in that weighing of the scales of probative versus prejudicial, the trial court decided that cross- 28 examining appellant about his prior bad acts was not more prejudicial than probative. But when it came to the prosecution witnesses, the trial court decided that cross-examination into their prior bad acts was more prejudicial than probative. The trial court’s concern for avoiding “prejudice” to the People’s witnesses stands on its head the court’s obligation to ensure a fair trial and turns upside down all the fundamental principles mentioned above and articulated by this Court. Because the formal allegations in a federal civil complaint provided a reasonable factual basis for the proposed questioning, the defense was acting well within the parameters of good faith as that concept has been articulated by this Court. Indeed, the factual basis relied on by the defense in the present case was far more substantial than that found adequate in Alamo and Kass. The information the defense had in this case that gave it sufficient good faith was that: 1) another Bronx resident, living close to appellant and to where the incident took place, had gone through the effort to hire a lawyer and file a formal federal civil complaint; 2) to allege that all of the police officers who were testifying for the prosecution engaged in very specific acts of abuse and fabrication against him and that they falsely arrested him; 3) around the same time of night and while performing the same tactical work they were performing in the present 29 case; and, 4) whose criminal case these police officers brought against him that night was subsequently dismissed. These facts and inferences are far more substantial than the ones in Alamo where good faith was found merely on the basis of 1) a policeman’s words or accusations that, 2) the witness in question was simply found in the same room with one of the two people actually convicted of a robbery, 3) at 2:00 am, 4) on a bed but fully dressed, and 5) in which room were also found the keys to the taxis stolen. If a police officer’s unverified out-of-court statement that a mere association or proximity existed between the witness and a convicted robber satisfies the standard of good faith and reasonable basis, a citizen’s formal allegations before a federal court that he was grossly assaulted by a rogue team of cops in his own neighborhood surely satisfies that standard. The disparity between the holding in Alamo and the ruling in the present case is still more striking in view of the fact that Alamo permitted cross- examination of a defendant about his “prior bad acts” of speculated robbery while the present case concerns cross-examination of a non-defendant, police officer witness about his prior bad acts of fabricating evidence and false arrest. Again here the fundamental guarantees of our criminal justice system seem misaligned, mismatched, and turned upside down. 30 The Appellate Division’s determination that Andrew [54 A.D.3d 618 (1st Dept. 2008)] sets the standard for good faith is erroneous. Its decision that since the allegations in the complaint in question here did not specifically allege that the witness personally engaged in specific misconduct, the complaint did not supply good faith to ask about the underlying acts, is erroneous and not in line with this Court’s precedent. The facts in Alamo that gave good faith to question an even more protected witness than the police officer in Andrew and here did not specifically allege that the witness personally engaged in any specific misconduct (unless being in a room with convicted robbers or lying on a bed at night while being dressed is misconduct). Where the defense was armed with the necessary good faith and reasonable basis from the formal complaint for asking about the prior bad acts alleged in the complaint, and where there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the defense should have been allowed to utilize the “greatest legal engine ever invented for the discovery of truth.” The Appellate Division’s determination that the defense sought only to establish the fact that there was a federal complaint and did not seek to inquire into the acts revealed in the lawsuit fundamentally misconstrues the record. 31 Although the defense did not utter the words “I want to inquire into the underlying acts of the lawsuit as prior bad acts,” it did make it clear that it was interested in the facts and acts that led to the lawsuit as “prior bad acts” that would impeach the officers’ credibility. [A. 37]. The defense referred to allegations concerning specific acts committed by the officers: that they struck the victim on the back and on his head at around 3:00 a.m. in the Bronx, that they falsely arrested him, that they fabricated evidence against him, and that they illegally strip searched him. [A. 36]. The defense, right after the above, also stated that these allegations went “directly” to its theory of the case that these officers were rogue cops. [A. 36]. Read fairly and in context, defense counsel’s remarks could not fairly be construed to be directed to the fact of the lawsuit alone, but to the acts alleged in the lawsuit: that the police officers struck the victim on the back and on his head at around 3:00 a.m. in the Bronx, that they falsely arrested him, and fabricated evidence against him. It was those acts that would have bolstered the defense’s theory of the case that the police officers were “rogue cops.” The First Department’s misreading proceeds from the illogical premise that the prior bad acts defense counsel kept referring to was the act of getting sued itself, or that the mere fact of being sued is what suggested that these were rogue cops. Thus, on a fair reading of the record, this Court should conclude that the issue presented on this appeal is whether the court abused its discretion by entirely 32 preventing the defense from cross-examining key prosecution witnesses about prior bad acts alleged in a federal civil lawsuit and ruling so on the grounds that it was more prejudicial than probative. D. The court’s absolute preclusion of valid efforts to impeach key prosecution witnesses was an abuse of discretion and prejudicial error Harmless error analysis considers two factors: the nature and quantity of the proof of the defendant’s guilt in the absence of the alleged error and the causal effect the error may have had on the actual verdict. People v. Crimmins, 36 N.Y.2d 230, 240 (1975). Even if the nature and quantity of proof of the defendant’s guilt was overwhelming, an error can be prejudicial if there is a significant probability that the jury in this particular case would have acquitted appellant had the error not occurred. Id. at 242. Here, the evidence of appellant’s guilt of the crime of possession of a weapon was not even close to being overwhelming: it was inconsistent and it hinged entirely on the testimony of two police partners, Sgt. Deevy and Det. Schaffer. Among other already noted inconsistencies, Sgt. Deevy’s testimony about the chronology and placement of shots was not consistent with the direct evidence of the placement of the spent casing from his gun. [See Statement of Facts, supra at page 6-7]. And no one other than Sgt. Deevy and Det. Schaffer claimed to have 33 seen appellant actually possess a gun. Det. Sanchez testified only that, when he and Det. Perpall arrived at the scene, the gun was on the ground. None of the other prosecution witnesses — ballistics experts, crime scene unit detectives, and police lab technicians — could connect the gun found on the ground to appellant. It was acknowledged that there were no fingerprints on the gun and the People did not purport to be able to connect the gun to appellant through any forensic evidence. Since Sgt. Deevy’s testimony formed the core of the prosecution, and the defense’s theory of the case was that appellant was framed, the ability to challenge his credibility was essential and disabling the defense from doing that was prejudicial error. People v. Jones, supra at 697 (2nd Dept. 1993) [Court found prejudicial error because the defense had been prevented from using officer’s prior acts of misconduct to impeach his testimony and the defense’s theory of the case was that the defendant had been framed]. Compare, People v. Andrew, 54 A.D.3d 618 (1st Dept. 2008) [Court found harmless error when the precluded impeachment would have affected a detective who was not the primary witness for the prosecution and whose testimony confirmed the defendant’s own testimony]. The fact that Sgt. Deevy’s longtime partner and subordinate Det. Schaffer corroborated the testimony falls far short of making the proof “overwhelming.” Corroboration by a subordinate when credibility is a significant issue does not 34 preclude a finding of prejudicial error. People v. Santos, 306 A.D.2d 197 (1st Dept. 2003), aff'd, 1 N.Y.3d 548 (2003). Finally, the evidence the defense tried to present through the excluded impeaching testimony would not have been cumulative and preventing the defense from doing any impeaching cross on the prior bad acts was not harmless error. People v. Corby, 6 N.Y.3d 213 (2005) [Preclusion of cross-examination of a witness was harmless because the defense had already plentifully impeached the witness by referring to her welfare fraud and criminal conviction and several other admissions of prior lies by the witness]. By contrast, the court below forbade the entire line of questioning. We are not suggesting that the court did not have discretion to limit the depth of detail the defense could elicit about the facts alleged in the lawsuit. But completely barring any exploration of them was an abuse of discretion as a matter of law. 35 CONCLUSION For the above-stated reasons, the decision of the Appellate Division should be reversed, the judgment of conviction should be vacated, and the matter should be remanded for a new trial. Dated: December 22, 2015 ______________________________ STANLEY NEUSTADTER, ESQ. Attorneys for Defendant-Appellant Cardozo Appeals Clinic 55 Fifth Avenue, Suite 1110 New York, NY 10003 (212) 790-0410 clinappcard@gmail.com By: ELSA MITSOGLOU, ESQ. JEREMY GUTMAN, ESQ Of Counsel