The People, Respondent,v.Tyrell Ingram, Appellant.BriefN.Y.June 1, 2016:NE\V YORK STATE COURT OF APPEALS 'fLJ'F' pr ''1P1' 1'' r}t:.'l'J-T~ S'l' A ·T'L' or N'"'t.r Y''RK' . .:-. ·:i J":.t .. ~ . ,,· .: .. (_ ~ . 1 t~. ,_ t'\. r~. r~ :, t~. ""' \ .. r ' ·~ Respondent, vs. CHARLES S!\1ITH, Defendant-AppeHant. Apl ,..._ ''ll-" OO'nt • • .J• l"O . .-\. -- \J ~ D \'S. TYRELL INGRA.l'vf Det.endant···Appelbnt. ~t.t•i ).i ·'"'rn:;; lJ'O">?J .~ .. ~r!_,_ 1.~0. L\..-.s......... .J . -. 'l$. Defendant-Appel.lant. P' '"' "~0.- (iO"' ·-:-A •~· :~o ..... r 15-J .. A.J BRlV:•f' f''(')R A l\'fJ --~ JS "U''Rl AI; L . . , ... 1n ... t.- I..J t ~~\ .. ~ 1'"1 -·. 1· e,...,.AL !i.fi) ~()("'.JT"r·\· r1 t;, _, I:A 1. .. r.. . " . .• ...~, · pr ''l 'ppnr:vf("',..., r·..,c··F ....... !T)AN'1' \PPrT I ,-"'···r·s .. ;'1:')~' ._~'., ..lrUL"..f' ... >"f·., •... t;;·,,..,,~-'1· f~l.!·J "=-''1'.)0 .. -l ,;>':J ~·\ ., .. ,..l. .:h> 'i.:. ~ • ..,, V I . '· l ~~e1~;;· \(•;}rk, J'J1 .. - l f){)38 'I elephone: C~ l2.~ '577-3 ?6~ r:·af::.si?t1i~.~~~ (fi .. :ff)) ~~,19···(;}~3(1 r;taff /\tt.orrH.~·:/~. Sl.~ec;a~ l. .. {ti;.~t.lti.~){l rJ~"'lit Electronic \1ad: ccenti--coukrivlt~(>ai-aid.or~~ ,_. _____ ..... ___ ·-·--·-·~----·-Z:l·-·- ·- ......... _ .......... __ .. .. To be submitted Brief completed on Aprill8, 2016. TABLE OF CONTENTS TABLE OF AUTHORITIES ...... .. .................. ........................................................ ... ii STATEMENT OF AA1ICUS CURIAE ........................................ ......................... ..... ! QUESTIONS PRESENTED ..................................................................................... 3 SUMMARY OF THE RELEVANT FACTS ................................................. ........... 4 People v. Smith ............................................................. ................................... 6 People v. lngra1n ............................. .... .. ... .... ... ...... .. .. .. ........ .... .................... .... 7 People v. LUcGhee ............................................................ .... ........................... 9 ARGUMENT .. ........................................................................................................ 10 L COURT OF APPEALS PRECEDENT REQUIRES BROADL YCONSTRUING BOTH THE RELIABILITY OF THE SOURCE OF PRIOR BAD OR IMMORAL ACTS AND THE TYPES OF ACTS TIIATMAYBE USED IN CROSS-EXAMINATION ................... IO A. Lawsuits are reliable sources of prior bad or immoral acts upon which examiners may rely in good faith ... ......................................... 16 B. Prior bad or immoral acts described in lawsuits may be the subject of impeachment of credibility and, in certain cases, may be relevant to a material issue in the case ........................................... 20 C. In all three cases below, defendants should have been allowed to question police witnesses regarding prior bad and immoral acts described in lawsuits ....... ........... ...................... ........................... . 24 i. People v. Smith ..................................................................... .... 25 ii. People v. Ingram ............ ..................... ......... .. .......................... 26 iii. People v. McGhee ...................... ............................................... 28 II. PUBLIC CONFIDENCE IN THE CRIMINAL JUSTICE SYSTEM AND POLICING, AND THE RELIABILITY OF THE ADVERSARIAL PROCESS, ARE ALSO WELL SERVED BY THE TRADITIONAL RULE THAT ALLOWS SUCH CROSS-EXAMINATION ............................. 30 CONCLU'SION ...................................................................................................... . 35 TABLE OF AUTHORITIES Page(s) Cases Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249 ( 1990) ......................................................... 21 In re Bernice J, 248 A.D.2d 538, 670 N.Y.S.2d 207 (2d Dep't 1998) ........................................ 31 Colon v. City of New York, et. al. Nos. 09-CV-8, 09-CV-9, 2009 WL 4263362, (E.D.N.Y. Nov. 25, 2009) .................... .. ....................... .... .............................. ... 32 Crawford v Washington, 541 u.s. 36 (2004) ... .. ...................................................... .. ............. ................... 34 Davis v Alaska, 415 u.s. 308 (1 974) .......... ........................................................... 4, 11, 13, 29,35 Delaware v. Van Arsdall, 475 u.s. 673 (1 986) ............................................... .. .. .. .. .... ................................ 29 Gordon v. United States, 344 u·.s. 4 14 (1953) ........................................................................................... 30 In re Luongo v Records Access Officer, 49 Misc. 3d 708, 15 N.Y.S.3d 636 (N.Y. Cnty. 2015) ............................... 19,20 lvfapp v. Ohio, 367 u.s. 643 (196 1) ..................................................................................... 32,33 People v. Alamo, 23 N.Y.2d 630,298 N.Y.S.2d 681(1969), cert. denied, 396 u.s. 879 ................. ........................................................ .... .... ................ 12, 23 People v. Allen, 50 N.Y.2d 898, 430 N.Y.S.2d 588 ( 1980), aff'g, 67 A.D.2d 558, 416 N.Y.S.2d49(2dDep't 1979) ........................................... 11 , 16 People v. Berrios, 28 N.Y.2d 361 , 321 N.Y.S.2d 884 (197 1) ......................................................... 31 ll People v. Carmona, 233 A.D.2d 142, 649 N.Y.S.2d 432 (1st Dep't 1996) ....................................... 31 1 36 N.Y.2d 230, 367 213 (I ..................................................... 29 ............................... 1 1 21 .................. 8 8 1 1 HI People v. Ingram, 125 A.D.3d 558, 5 N.Y.S.3d 376 (1st Dep't 2015), lv. granted, 26 N.Y.3d 930 14, 2015) ................................................................. .. People v. Kass, 1 3 (1969) .......................................... 1 15 ...................................... 31 1 1 1 v. Quinones, 61 A.D.2d N.Y.S 196 (1 1978) ................................... 31 People v. Rutledge, 21 A.D.3d 1125, 804N.Y.S.2d321 (2dDep't2005) ........................................ 31 I .................................. 15 306 A.D.2d 197,761 N.Y.S.2d 651 (lst Dep't 2003), aff'd, 1 548 ) ........................................................................ 21 s 8 7 1 ..................................................... 21 2 719 8(1 1) ...................................... . v. Wise, N.Y.2d 321 413 N.Y.S.2d 334 (1978) ................................................ 20, 25 v People v. Yapor, 308 A.D.2d 361, 764 N.Y.S.2d 261 (1st Dep't 2003) ................................. 17, 23 117 A.D.3d 1056, 986 N.Y.S.2d 566 (2d Dep't 2014) ...................... 21 31 11) ........................................................................ . Constitutional Provisions I § 35 Statutes, 8 n.8 David N. Dorfman, Proving the Lie: Litigating Police Credibility 26 Am. J. Crim. L. 455 (1999) .................................................................. 33 n.l2 Jeffrey Jones, In US, Confidence in Police Lowest in 22 Years, Gallup, June 19, 2015, Available at: http://www.gallup.com/poll/ 183704/confidence- police-lowest-years.aspx ................. ........................................................... 34 n.14 John Annese and Graham Rayman, Review board substantiates 30% of civilian complaints against NYPD in December with video evidence, The Daily News, January 15, 2016 Available at: http://www.nydailynews.com/new-york/30-civilian- complaints-nypd-substantiated-article- 1.2497121 ... .. ............... ................... 19 n. 7 Julia Simon-Kerr, Systemic Lying, 56 Wm. & Mary L. Rev. 2175 (20 15) ....................................... 32 n.8 & 33 n.ll Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 Am. Crim. L. Rev. 1 (20 10) ............................................................. 32 n.8, 33 Robert M . Pitler, Superseding The District Attorneys in New York City- The Constitutionality and Legality of Executive Order No. 55, 41 FORDHAM L. REV. 517 (1973) ................................................................ 19 n.6 21st Century Presidential Task Force on Policing, http://www.cops.usdoj.gov/pdf/taskforce/taskforce finalreport.pdf .............. 34 n.l3 Vll The Legal Aid Society submits this amicus brief in support of Defendants- cases: 122 A.D.3d 456,996 N.Y.S.2d 37 (1 I v. McGhee, 1 4 1 (1 1 1 economic a 1 1,1 working with over 700 social workers, investigators, paralegals and support and administrative staff through a network IS cnmes 2 QUESTIONS PRESENTED I. Whether bad described filed a 3 SUMMARY OF THE RELEVANT FACTS s m cases to cross-examine 31 reasoning cases -m Smith, the court said that "mere accusations" prior bad acts were 4 support the proposed examination. Smith Appx. at A28-29. In Ingram, the court 1 And in were 1 a 5 People v. Smith At his first trial, Mr. Smith was convicted of resisting arrest and of a on was fabricate allegations of "tampering with evidence" against plainti as punishment 6 for attempting to prove Mr. Finno's innocence). In response to defense counsel's proffer, the judge said there was "simply nothing that goes to the s a 38. 13, 2016) is not available for review. Mr. Ingram was represented at trial by The Legal Aid Society, Criminal Defense Practice for Bronx County. 7 discharge ofhis weapon. Ingram Br. at 5-6 citing A166-168, AlS0-181, A208, and A269-271. as one a 8 under the theory that they involved prior bad acts by this officer bearing on his credibility or 558-559, 5 N.Y.S.3d 3 was as a Ms. Kerr even though the only drugs found in the apartment were found inside of a shoe that was inside the bedroom of the person named in the search warrant). 9 indeed falsely arrested anybody. It's a pending allegation from an unrelated 129-130. that on 1 4 1 L prosecution or never been information that v. 10 N.Y.2d 898, 899, 430 N.Y.S.2d 588 (1980), aff'g, 67 A.D.2d 558, 560,416 N.Y.S.2d 49 (2d Dep't 1979) no cross- a as VICIOUS Of often sworn to under ' "good faith in these cases. v. 1 I 632-35, 298 N.Y.S.2d 68 1, 682-84 (1969), cert. denied, 396 U.S. 879 (1969). In Alamo, the prosecution was permitted to impeach defendant based on "[reports] ... 'from several parties' by a policeman, whose name was disclosed by the prosecutor, that defendant had sold marijuana cigarettes on a public beach .... " The Court found "solid basis for the questions that were asked."4 Another key part of the Court's ruling in Alamo involved whether a Grand Jury decision not to indict vitiated the right to cross-examine about the underlying allegations presented at the Grand Jury. Importantly, this Court ruled that it did not: "the failure of the Grand Jury to indict ... did not make it improper for the prosecutor to question defendant as to the underlying fact[s]" of the purported misconduct. Because under Alamo a vote of"No True Bill" at a formalized Grand Jury proceeding (which, of course, can even permanently terminate a criminal case) is not tantamount to an acquittal for purposes of questioning about the underlying facts at issue- and it does not negate the questioner's "good faith basis" and "reasonable basis in fact" to ask about the possible prior misconduct - a civil defendant' s agreement to settle a lawsuit also should not be considered tantamount to an acquittal, or negate the "good faith basis" and "reasonable basis 4 The dissenting opinion further explains the factual context of the majority's ruling that such impeachment questioning was proper: "an undercover man was assigned to watch [defendant] on the beach but, significantly, the prosecutor could not report even a scintilla of evidence that defendant was, in fact, engaging in the sale of such cigarettes or any other illegal activity," and so the questions were based on "a rumor that is current only among members of the police department and some unnamed persons." !d. at 637, 686 (Burke, J. , dissenting). 12 in fact" for questioning. Id. at 624-35, 681-84. See also People v. Sorge, 301 N.Y. 198,200-01 (1950) 84 ( 1 ) (adulterous relationship); see a a 1 1 cases as on s 13 brother. Questioning about uncharged crimes is permissible in the exercise of the s so as IS a m that, even 1 a was some context as "the prosecutor himself admitted that he had spoken to the jeweler, who had given the stones to the defendant on a seven-day examination basis, for only 'a very brief moment,' and that he did 14 In addition to broadly construing the bases upon which examiners may rely broadly be some an following day with Kass to have the diamonds returned (and they were, in fact, returned the following day). !d. at 128-29, 811-812 (Burke, concurring). 15 accord People v. Jones, 193 A.D.2d 696, 697, 598 N.Y.S.2d 40, 42 (2d Dep't 1993). pnor bad 21 ), it 1' defense was precluded from cross-examining 16 or error correction 3 "about a federal lawsuit that had been brought against [him] by an inmate who that the officer had assaulted nor Daley suggested m or even cross- 41; 9 st 1 11 11 942 201 unreported sexual abuse). Courts have even considered immoral but not unlawful 17 conduct. People v. Elmy, 117 A.D.3d 1183, 1186, 984 N.Y.S.2d 672, 675-76 (3d Dep't 2014) on allegations as written in the complaint 18 prosecuted for their bad acts. The Commission expressed concerns that "[District so s a or even 19 examination with information regarding alleged prior bad acts by police in a cases. not a a v. 46 1' 3 413 s 338 (1 20 dispute, or matters such as a witness's bias, hostility, or impaired ability to perceive " v. 75 or V. 1' 81 s pnor on inmates "went to the very heart of this defendant's trial defense" and "touche[ d] 21 the very essence of a trial's truth finding goal: namely, to accord an accused a full and in his or (1 s the trial, they can be "material" and admissible. 48 N.Y.2d 543, 548-49, 423 22 N.Y.S.2d 893, 896-97 (1979). "Peculiar relevance" refers to a distinctive similarity or alleged 5. 681, 683; v. Yapor, 308 A.D.2d 361,362, 764 N.Y.S.2d 261,362 (1st Dep't 2003); extensive involvement in the drug trade, People v. Chebere, 292 A.D.2d 323, 324, 740 N.Y.S.2d 25, 26 (1 Dep't 2002); uncharged People v. Wiggins, 279 3 719 5 1 v. 1 61 61 1 ). 1 1' unlawful imprisonment, retaliation and harassment. See at 5-l Based on the allegations relied upon by all three defendants, the officers did not 24 just lack probable cause, they intentionally fabricated criminal accusations to cover misconduct. are exactly the bad and immoral acts that may be used was more v. 3 413 s cover an use broad afforded them 25 as police officers- whether through force or strip searches- to prevent or argues that man While that the "bad was some 's 26 named that can be were people is one was s 1 ever been sued" was properly sustained by the court, her subsequent proffer a Ingram and a "peculiarly relevant" false arrests for the jury to hear and use evaluating detectives' responses, defense counsel in both Smith and Ingram were deprived of pursuing a theory that the officers abusively used their power to arrest Mr. Smith Mr. cover own m was to a on was 28 In sum, the First Department courts erred by precluding the defendants from based on bad alleged 19 1 were cross- examination," and this was "constitutional error of the first magnitude [that] no 29 amount of showing of want of prejudice would cure .... " !d. at 318 (emphasis added) PROCESS, ARE ALSO SERVED BY THE THAT ALLOWS SUCH CROSS-EXAMINATION. cross- a of "good faith bases" considerably more lawsuit allegations. 30 By no stretch do all police officers lie every time they testify. But evidence some cases IS a long identified 1,369,321 Judge IS re 1 v. 61 31 196, 197 (1st Dep't 1978); People v. Garafalo, 44 A.D.2d 86, 88,353 N.Y.S.2d 500, 501 (2d Dep't 1974). cases: et. Court's decision in Mapp v. Ohio, 367 U.S. 643, 650-59 (1961).9 The tactic common and so some a it cross at 21 13 David N. Dorfman, Proving the ·Litigating Police Credibility, 26 Am. l Crim. 455, 464, 496-98 (1999). 33 our 17 !d. According to the Presidential Task Force on 21st Century Policing: "Trust and that men were the 34 our come confronted with the witnesses against him"); NY Const., art. I, § 6 ("the party or 1 1 1 15. on alleged in rights complaints filed against them. By affirming the 35 the First Department diverged from over a hundred years of jurisprudence broadly the of that to reverse new York State 36 Timothy P. Murphy, Esq. Amicus Curie 290 Main 3 Hon. Cyrus R. Vance, Patricia Appeals 37