The People, Appellant,v.Jamell R. McCullough, Respondent.BriefN.Y.May 31, 2016To Be Argued By: BRIAN SHIFFRIN, ESQ. Estimated Time: 10 minutes STATE. OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, -vs- APL-2015-00148 JAMELL MCCULLOUGH, RESPONDENT. BRIEF FOR RESPONDENT TIMOTHY P. DONAHER, MONROE COUNTY PUBLIC DEFENDER By: BRIAN SHIFFRIN Easton Thompson Kasperek Shiffrin LLP 16 West Main Street, Suite 243 Rochester, New York 14614 Tel: (585) 423-8290 Fax: (585) 423-0890 OF COUNSEL TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES iii QUESTIONS PRESENIED ON APPEAL 1 STATEMENT OF FACTS 2 POINT I. THE APPELLATE DIVISION CORRECTLY RULED THAT THE THE TRIAL COURT ERRONEOUSLY PRECLUDED MR. MCCULLOUGH FROM PRESENTING EXPERT TESTIMONY ON RELEVANT ASPECTS OF EYEWITNESS TESTIMONY 17 A. Introduction 17 B. The Trial Court's Rulings That the Corroborative Evidence Was of Such Nature That There Was No Need for an Expert on Identification Evidence, Without Considering the Second Stage of the LeGrand Test, Were an Abuse of Discretion And They Violated Mr. McCullough's Constitutional Right to Present a Defense 23 The Appellate Division Correctly Determined That the Proposed Testimony Satisfied the LeGrand Stage Two Factors and, Thus, Reversed the Judgment and Granted a New Trial 40 1. Introduction 40 2. The Proffered Testimony Would Have Been Relevant to the Jury's Assessment of the Testimony Identifying McCullough as a Participant in the Charged Crimes 41 The Proffered Testimony Was Based on Principles That Are Generally Accepted Within the Relevant Scientific Community 42 4. The Proffered Witness is a Judicially Recognized Qualified Expert 49 5. The Proposed Testimony Was on Aspects of Memory and Perception Beyond the Ken of the Average Juror 50 D. The Appellate. Division Was Correct in Holding That it Was Prejudicial Error to Preclude the Expert Testimony and In Ordering the Reversal of Mr. McCullough's Conviction and Granting Him a New Trial. 51 CONCLUSION 55 ii TABLE OF AUTHORITIES Federal Cases Frye v United States, 293 F 1013 [DC Cir 1923] 53 Holmes v South Carolina, 547 US 319 [2006] 38, 39, 51 State Cases Karaski v Bird, 98 AD2d 359 [1st Dept 1984] 49 People v Abney, 31 Misc 3d 1231 [A] [S Ct NY 2011] Passim People v Abney, 13 NY3d 251[2011] Passim People v Allen, 13 NY3d 251 [2011] 20, 31, 34, 36, 38 People v Banks, 16 Misc 3d 929 [Westchester Co Ct 2007] Passim People v Cona, 49 NY2d 26 [1979] 29 People v Crimmins, 36 NY2d 230 [1975] 52 People v Harris, 74 AD3d 984 [2d Dept 2010] 46, 49 People v LeGrand, 8 NY3d 449 [2007] Passim People v Muhammad, 17 NY3d 532 [2011] 15, 20, 31 People v Norstrand, 35 Misc 3d 367 [S Ct Mon 2011] 50, 51 People v Oddone, 22 NY3d 369 [2013] 16, 46, 47 People v, Sage, 23 NY3d 16 [2014] 29 People v Santiago, 17 NY3d 661 [2011] Passim iii People v Smith, 191 Misc 2d 765 [S Ct NY 2002] 46, 50 People v Sweet, 78 NY2d 263 [1991] 29 People v Wesley, 83 NY2d 417 [1994] 48 People v Williams, 14 Misc 3d 571 [S Ct Kings Co 2006] 44, 45, 46, 49, 50 People v Young, 7 NY3d 40 [2006], habeas corpus petition granted in part 7 F Supp 2d 59 [WDNY 2011], grant of habeas corpus affd 715 F3d 79 [2d. Cir 2013], cent den _ US_, 134 SCt 20 [2013] 20, 31, 36 State v Henderson, 208 NJ 208, 242-48 [2011] 18 Federal Statutes US Const, 6th Amendment 23 US Const, 14th Amendment 23 State Statutes NY Const, art I, § 6 23 Penal Law § 20.00 2 Penal Law § 125.25(3) 2 Other Authorities B.L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.L. Pol'y & Ethics J. 327 (2006) 45 Bornstein, et al, Effects of exposure time and cognitive operations on facial identification accuracy: a meta-analysis of two variables associated with initial memory strength, Psychology, Crime, and Law, Vol 18, number 5, June 2012, 473-490] 46 iv Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J L & Psychiatry 265 [2004] 44 Eyewitness Misidentification, http://www.innocenceproject.org/Content/ In Focus_Eyewitness Misidentification.php [last visited August 25, 2015] 17 Informants, http://www.innocenceproject.org/understand/ Snitches-Informants.php (last visited August 27, 2015) 29 J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross—Examination, 36 Stetson L Rev 727 [2007] 45 Jonathan M. Fawcett, et al, Of guns and geese: a meta-analytic review of the `weapon focus' literature, Psychology, Crime & Law, 10.1080 (June 2011) 43 Kenneth A. Deffenbacher et al., A Meta—Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum Behav 687 [2004] 44 Kenneth Deffenbacher & Elizabeth Loftus, Do Jurors Share a Common Understanding Concerning Eyewitness Behavior, 6 L & Hum Behavior, 15 [1982] 18 Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla City U L Rev 131 [2010] 18 Nancy Mehrkens Steblay, A Meta—Analytic Review of the Weapon Focus Effect, 16 Law & Hum Behav 413 [1992] 43 P.N. Shapiro & S. Penrod, Meta—Analysis of Facial Identification Studies, 100 Psychological Bulletin 139, 148 [1986] 45 Saul M. Kassin, & Kimberly A. Barndollar, The Psychology of Eyewitness Testimony: A comparison of experts and prospective jurors, 22 J of Applied Soc Psychol, 1241-1249 [1992] 19 QUESTIONS PRESENTED ON APPEAL 1. In a case in which the only evidence corroborating the eyewitness identification of Mr. McCullough was from a participant in the crime who admittedly (1) did not know Mr. McCullough, (2) did not claim to have ever seen Mr. McCullough other than on the evening of the charged crime, (3) failed to identify Mr. McCullough from a photographic array, (4) had seen media accounts that Mr. McCullough was charged with the crime prior to identifying him, and (5) repeatedly lied in his account of the events, was it error for the trial court to preclude Mr. McCullough from presenting expert testimony on relevant aspects of eyewitness testimony, such as weapons focus, stress, and duration of crime? Court below (Appellate Division, Fourth Department): Yes. 2. On a finding that it was error to preclude the expert testimony, was the appropriate remedy an order which reversed Mr. McCullough' s conviction and granted him a new trial? Court below (Appellate Division, Fourth Department): Yes. 1 STATEMENT OF FACTS Jamell McCullough was charged by the Monroe County Grand Jury by Indictment 2009-0933, with one count of Murder in the Second Degree (Penal Law [PL] §§ 20.00 and 125.25[3] [felony murder]), one count of Robbery in the First Degree (PL §§ 20.00 and 160.15 [4]) [forcible stealing while displaying a weapon]), and one count of Attempted Robbery in the First Degree (PL §§ 20.00 and 160.15[4] [forcible stealing while displaying a weapon]). These charges were based on allegations that on December 27, 2008, Mr. McCullough was one of a group of men who entered a barbershop in Rochester, New York, robbed and shot the owner of the store, Vincent Dotson, and attempted to rob another man, James Johnson, Jr., who was in the barbershop. There was no physical evidence corroborating the allegations that Mr. McCullough was one of the men who committed these crimes. Nor was it alleged that Mr. McCullough ever made an incriminating admission. Instead, for a long time, the only evidence that linked Mr. McCullough to the crimes were two identifications made by Johnson, who had both witnessed his friend Dotson being threatened, pistol whipped, and shot, and who himself had a pistol put at his head and clicked (with no shot emerging) prior to the men leaving the store (Appendix [A] 198-214). 2 Johnson, who had never seen these men prior to the robbery/murder (A 332), was first shown a photo array on January 15, 2009, at which he told the police that Mr. McCullough "looks a lot like the shooter" whom he described as one of the darker skinned perpetrators wearing a dark coat and a black winter hat (Supplemental Appendix [SA] 21; A 614-622). Then, on March 19, 2009, the police conducted a lineup at which Mr. McCullough was the only person who had also been included in the photo array (A 623-624). This time, Johnson identified Mr. McCullough, not as the shooter, but as the third man to enter the store, whom he described as lighter skinned, taller, wearing a bright orange coat and matching baseball cap (SA 27-28, A 198-211, 228-30). Even after Johnson identified Mr. McCullough at that array, the police did not charge Mr. McCullough with these crimes (A 626). Instead, Mr. McCullough was not charged until more than seven months later when a sealed indictment was issued by the Monroe County Grand Jury on October 29, 2009 (SA 1-5). The only other evidence the police and prosecutor ever acquired linking Mr. McCullough to these crimes was testimony from Willie Harvey, who also had been charged with these crimes, admitted to being the driver, and further admitted he did not know Mr. McCullough (A 658). Harvey also admitted that he was a liar and that he had repeatedly lied both to the police in this case and in his plea colloquy in this 3 case, and he admitted to saying what he thought would help him or what he was told to say (A 658-685). Thus, Harvey's credibility and reliability was highly suspect. On January 28, 2009, the police showed Harvey, who had already identified his bother and cousin as participants in the crimes (A 664-65), a photo array including a photograph of Mr. McCullough. Mr. Harvey told the police that he did not recognize anyone in the array (A 693, SA 34). But on March 4, 2010, police again showed Harvey a photo array containing Mr. McCullough' s photograph. By then Harvey had been charged with the murder and robbery and, while in jail awaiting trial on those charges, which was scheduled to commence on March 8, 2010, Harvey had been exposed to newspapers and television accounts about Mr. McCullough being charged with this crime (A 695-696). Despite Harvey having admittedly never seen Mr. McCullough before or after December 27, 2008 (A 658), and having stated at the earlier photo array that he did not recognize Mr. McCullough (SA 29; A 693), Harvey then identified Mr. McCullough as one of the persons who drove to and from the crime scene with his brother (SA 29-32; A 704-705). Immediately upon making that identification, Harvey was offered a plea deal in which the murder and robbery charges were dropped and he was permitted to plead guilty to robbery in the first degree and receive only a ten year sentence, with 4 sentencing to be delayed until after he testified at Mr. McCullough' s trial (A 638-640, 694-698). Given that the People's entire case rested on (1) the reliability of Johnson's identification of a stranger made during the highly stressful armed robbery/murder committed right next to him (during which he was almost shot in the head at point blank range); and (2) the credibility and reliability of the bought testimony of Willie Harvey, an admitted liar who also was a stranger to Mr. McCullough, counsel moved, immediately prior to trial, for permission to present expert testimony from Dr. Nancy Franklin, an expert on the factors impacting eyewitness identifications. Counsel sought to have Dr. Franklin testify as to how a number of factors, such as the level of violence of the interaction, the length of time of the incident, and weapons focus, can impact the reliability of an identification (SA 73-85; A 94-135). In response to the pre-trial motion, the prosecutor made three arguments: (1) the motion was not timely; (2) a Frye hearing would be needed because the cited factors have not been sufficiently established within the scientific community; and (3) in this case there would be corroborative evidence, the testimony of Willie Harvey, obviating the need for an expert on identification evidence (A 102-119). After observing that in People v Abney (13 NY3d 251, 267 [2011]) there was no corroboration and there was a cross-racial identification, the court issued its ruling. 5 The court stated that in Mr. McCullough's case, in contrast to Abney, the prosecutor intended to present corroborating testimony from Harvey, whom the court found to have been a credible witness at a prior trial, and Johnson's identification was not cross racial (A 133). Thus, the court ruled that "at this particular time the motion will be denied." (A 134.) But, the court granted Mr. McCullough leave to reargue the motion after the People's case, because by then "I will have heard the testimony and I will pay heed to the testimony to see if the testimony of Johnson is, in fact, corroborated..." (A 134.) The court below did not base its ruling on the timing of the motion or on the need for a Frye hearing (A 133-134). As set forth below, after the People rested, counsel renewed and reargued this motion (A 814-828). At the jury trial, Johnson testified that on the evening of December 27, 2008, he had been in Dotson's barbershop with Dotson. Johnson was then 21 years old, unemployed, and had received on the job training there to become a barber. Around 7 p.m. that night, he went to the barbershop to get a haircut. After the haircut he "hung out" there for a while (A 183-86). At some point, Dotson asked him to get something at a store located next to the barbershop. While performing this errand, Johnson noticed a white Malibu with a missing hubcap pulling up to the corner (A 187-189). 6 A passenger got out and, after asking if the barbershop was still open, entered the barbershop with Johnson. While on his cell phone, the man asked Dotson for a haircut. The man hung up and sat in the barber chair. As Dotson was about to start the haircut, the man's cell phone rang and he had a short conversation. This happened while Johnson was sitting on another of the barber chairs (A 191-198). Then three more men came into the shop. All four men (the one on the chair and the three who entered) were African-Americans. One asked "where's the bud at," referring to marijuana (A 198-199, 215). Another of the men then shut the door. At this time, Johnson, who was on his phone, heard a click and saw that one of the men was holding a pistol next to his head. Johnson then hid his phone, put his hands up, and, pursuant to a command, lay on the floor, face down. Dotson got on the floor next to Johnson (A 200-203). Then the man who had been sitting in the barber chair stood up, pulled the blinds down, took a pistol out of his pocket, and started asking about a safe. When Dotson told them that there was no safe, the men pistol whipped both Dotson and Johnson. Johnson, still on the floor, heard cabinets open and close, and then, when Dotson insisted that there was no safe, the men pistol whipped Dotson again (A 203- 206). 7 After a man took money from Dotson's pockets and complained about the amount, the man who was in the chair directed that Dotson be turned over. Then the first of the group of three stood directly over Dotson and extended his arm with the pistol. Johnson then heard two shots and could see that Dotson had been hit in the chest. The men then all ran out of the barbershop (A 203-212). Johnson then saw the feet of the man who had shot Dotson coming back to Johnson, who closed his eyes and heard a clicking sound, followed by the sound of someone running in the store. Johnson opened his eyes, observed that the men had left, and called 911 (A 213). After originally telling the police following a photo array that Mr. McCullough looked a lot like the shooter, the first of the men to enter the barbershop (SA 21; A 614-622), in March 2009, Johnson picked out Mr. McCullough at a lineup as the last of the men to walk into the barbershop (A 231). Jeffrey Melton testified that he had been at Dotson's barbershop on December 27, 2008. Melton testified that when he left the barbershop that night, he went across the street to wait for the bus. While waiting there he first saw one man walk up to and enter the store, and he then observed three men emerge from a white Malibu with a missing hubcap and go behind a store next to the barbershop. A few minutes later he saw Dotson open the door and let the men in (A 403-413, 443-446). 8 Melton testified that he then heard three shots and saw the men run out to and enter the Malibu (A 415, 446). Later that night, Melton participated in an identification procedure at which he identified the driver of the Malibu (A 420-421). Later testimony revealed that the man identified as the driver was Willie Harvey (A 653-654). Angela Smith also testified as to being in the area of Dotson's barbershop at the time of the crimes. She described seeing a car with a load of people arrive at the back of the store next to the barbershop, but she could not describe the car or the people (A 729-738). Willie Harvey, who had been on parole for a felony weapons conviction on the night of the crimes, was in custody when he testified as a prosecution witness, having been charged with this murder, robbery, and attempted robbery and having pleaded guilty to robbery with a promise of a ten-year sentence conditioned on his testifying (A 638-640, 659-661). Harvey testified that on December 27, 2008, he, his brother Kevin Harvey, his cousin Rashad Harvey, and two other men whom he did not know went to the location of the barbershop (A 642-46, 658). Harvey claimed that he rode there as a passenger in the white Malibu and the others drove in a grey Volkswagen (conflicting with the testimony of Melton that all of the men emerged from and returned to the Malibu). 9 Then, according to Harvey, he stayed in the car, and his brother and cousin came back to the car and the other two men went to the other car and both cars left the scene. Harvey testified that they met again at Judson Terrace where the men put marijuana and guns on the hood of the Malibu. Then, Harvey testified, he, his brother, and his cousin drove back to the area of the crimes, and he was stopped by the police and brought back for a show-up identification, arrested and brought to the Public Safety Building for questioning where he gave an oral statement (A 648, 654, 662). In the statement Harvey gave the police upon his arrest, he told the police that he had not been near the barbershop earlier, and instead gave (what he admitted later) was an entirely false statement as to what he had done and whom he had been with (A 662-665). On January 9, 2009, Harvey gave a second statement which supplied a different, (but, what he admitted later) was a false account of what happened on the night of the crimes (A 666-673). Then, on January 28, 2009, Harvey again spoke to the police and gave a third statement. This time he admitted to lying previously, but continued to state that he had nothing to do with the crimes, that is, until he was told that he had been identified as the driver (A 671-672). He then admitted that he had driven there and that his prior statements were lies (A 673-674). 10 At trial, Harvey testified that in addition to his brother and cousin there were "two other guys." (A 644-646, 650-651), whom he did not know (A 658). After he testified that his brother Kevin was the one who drove to the crime scene, Harvey was asked why when pleading guilty he told the court that he was the one who drove there (A 681). Harvey answered that he lied when he took the plea, because he had been told to say that he was driving. Despite his plea colloquy and despite Melton's testimony identifying Harvey as the driver (A 420-421), Harvey insisted that he was a passenger (A 682). Similarly, Harvey testified that he did not know what the others intended, despite having told the court during the plea colloquy that he knew they were going to commit a robbery (A 684). Harvey testified that on January 28, 2009, after describing his involvement and that of his bother and cousin in the crimes, he was shown a photo array, which included a photograph of Mr. McCullough, but did not pick out any one in the array as one of the participants (A 693, 702). After giving the January 28, 2009, statement Harvey was still facing life in prison on the murder charge (A 694). Harvey was in custody at the Monroe County Jail since December 28, 2008. While there he admittedly saw stories in the news, possibly including photographs of Mr. McCullough, stating that Jamell McCullough 11 had been charged with the same crimes that he had been charged with committing (A 693, 702). Then, on March 4, 2010, right before he pled guilty, he picked out Mr. McCullough' s photograph in an array. Later that day, Harvey entered a plea deal in which the murder and attempted robbery charges were dropped, and it was agreed that if he testified at Mr. McCullough's trial he would receive the minimum possible sentence for robbery in the first degree as a predicate felony of only ten years (A 699- 702, 704-705). The People also presented testimony from Rochester Police Officer Matthew Drake (taken during a pre-trial conditional examination) about how on the night of December 27, 2008, while in a marked police car after receiving a radio report of a shooting at the barbershop, he had observed a white Chevrolet Malibu with three or four black males. Officer Drake testified that he chased the vehicle, which eventually stopped. The two passengers and the driver took off running. After a foot chase, Officer Drake apprehended the driver, Willie Harvey, whom he first brought to the investigators at the crime scene and then drove to the Public Safety Building (A 13- 70). Thus, Officer Drake's testimony confirmed what Melton and Harvey's plea colloquy made clear: Harvey was lying when he testified that he was not the driver. Rochester Police Investigator David Salvatore testified that, at the location of the crimes, both Johnson and Melton were asked if they could identify Harvey as part 12 of show-up identification procedures. Johnson could not identify Harvey. Investigator Salvatore also testified that after showing Johnson a photo array including a photo of Mr. McCullough on January 15, 2009, Johnson viewed a lineup on March 19, 2009. Investigator Salvatore did not know if any other person included in the photo array was also included in the lineup. He testified that Mr. McCullough was not charged before or after this lineup (A 569-575, 578, 614-624). Investigator Salvatore also testified that he questioned Harvey on December 28, 2008, and that on January 28, 2009, he obtained a written statement from Harvey and conducted identification procedures with Harvey. Specifically, Investigator Salvatore testified that he showed two photo arrays to Harvey, including one with a photograph of Mr. McCullough, and that he did not pick anybody out (A 627-629). Additionally, Investigator Salvatore testified that on January 26, 2009, Melton was shown a photo array which included a photograph of Mr. McCullough, but that Melton did not pick out any of the photos (A 630). No other testimony or evidence purported to link Mr. McCullough to the charged crimes. After the People rested, the court, noting that pre-trial it had denied the motion for permission to call Dr. Franklin with leave to renew at the end of the People's case, invited counsel to renew the motion (A 814-815). Mr. McCullough's counsel then 13 argued that Harvey's testimony does not constitute the type of corroboration which would obviate the need for expert testimony in eyewitness testimony (A 815-22). The Court re-affirmed its earlier holding, finding that Harvey's testimony corroborated the testimony of the eyewitness, Johnson, and that Harvey's testimony, in turn, was corroborated by Melton and Officer Drake and Investigator Salvatore's testimony (which, in fact, established that Harvey, not Mr. McCullough, was a participant in the charged crimes) (A 825-828). The court explained that since the testimony of the eyewitness was corroborated by other evidence of "the defendant's involvement in the crime, assistance of an expert witness on identification is not needed. . . ." (A 827). The prosecutor, having successfully precluded the admission of expert testimony on the relationship between stressful events and the reliability of eyewitness identifications, commenced his summation by arguing that Johnson's identification was reliable and should be credited because of the "concentrated awareness" Johnson had due to the robbery/murder being a significant event (A 887- 888). On this evidence, with his expert precluded from testifying, Mr. McCullough was found guilty as charged (A 994-995). 14 On appeal, the Appellate Division, Fourth Department, "agree[d] with defendant that there was little or no corroborating evidence" and held (3-2) that it was an abuse of discretion for the trial court to preclude the admission of expert testimony on eyewitness identification, finding that Harvey's testimony was insufficient to relieve the court of its obligation to proceed to the second stage of the LeGrand analysis (People v LeGrand, 8 NY3d 449, 452 [2007]) (A 2-4) The Appellate Division explained that The only testimony corroborating the eyewitness's identification of defendant came from Harvey, who even the prosecutor characterized as "a liar." Harvey initially denied any knowledge of the robbery, and thereafter identified other individuals as'the perpetrators. When shown a photo array containing defendant's photograph about a month after the robbery, Harvey told the police that he did not recognize anyone. Harvey only identified defendant as one of the perpetrators minutes before he pleaded guilty to robbery in the first degree in exchange for the minimum sentence of 10 years. In addition to Harvey's dubious credibility, we note that "several factors call [his] corroborating. identification[ ] into question" (People v Santiago, 17 NY3d 661, 673 [2011]). Harvey had never met defendant prior to the robbery, he remained in the vehicle during the robbery, and he had limited opportunities to observe defendant that night (cf. People v Muhammad, 17 NY3d 532, 546 [2011]; People v Abney, 13 NY3d 251, 269 [2011]). We therefore agree with defendant that Harvey's testimony was insufficient to relieve the court of its obligation to proceed to the second stage of the LeGrand analysis (see People v Santiago, 17 NY3d 17 NY3d 661, 673 [2011]). (A 3-4.) 15 The Appellate Division majority then found that all four elements of the second stage of the LeGrand analysis were satisfied and ordered that the conviction be reversed and granted a new trial (A 4). The dissenting Justices set forth in detail what they described as Johnson's "good" opportunity to observe the perpetrators and agreed with the lower court that "expert testimony on eyewitness recognition memory was 'not needed' to assist the jury because the record establishes that the eyewitness provided very detailed testimony regarding the events, including a description of defendant and his actions, which was sufficiently corroborated by the identification of defendant by one of his accomplices." (A 5-7.) The dissenting Justices wrote that they also disagreed with the majority both as to whether "expert testimony regarding the impact of 'event violence,' event duration,' and 'weapon focus' on the reliability of eyewitness identification is generally accepted in the scientific community" and whether the majority was correct in citing and quoting People v Oddone (22 NY3d 369, 379 [2013]) for its holding that it "must assume on this record" that the proposed testimony is based on principles that are generally accepted in the scientific community." (A 5.) 16 POINT I: THE APPELLATE DIVISION CORRECTLY RULED THAT THE THE TRIAL COURT ERRONEOUSLY PRECLUDED MR. MCCULLOUGH FROM PRESENTING EXPERT TESTIMONY ON RELEVANT ASPECTS OF EYEWITNESS TESTIMONY A. Introduction In this case in which the only evidence corroborating the eyewitness identification of Mr. McCullough was from a participant in the crime who admittedly (1) did not know Mr. McCullough, (2) did not claim to have ever seen Mr. McCullough other than on the evening of the charged crime, (3) failed to identify Mr. McCullough from a photographic array, (4) had seen media accounts that Mr. McCullough was charged with the crime prior to identifying him, (5) only identified McCullough minutes before entering a guilty plea to a reduced charge with the mimum possible sentence, and (6) repeatedly lied in his account of the events, the Appellate Division, Fourth Department, correctly held (A 2-4) that the trial court abused its discretion when it precluded Mr. McCullough from presenting expert testimony on relevant aspects of eyewitness testimony, such as weapons focus, stress, and duration of crime. Mistaken eyewitness identification evidence has proven to be the leading cause of wrongful convictions (see, e.g., Eyewitness Misidentification, http://www.innocenceproj ect. org/Content/In_F ocus_Eyewitness_Misidenti fi cation .php [last visited August 25, 2015] ["Eyewitness misidentification is by far the 17 leading cause of wrongful convictions. Nationwide, 75% of wrongful convictions that were overturned by DNA testing involved erroneous identifications from victims or witnesses"]; Laurie Gould et al., Reforming the Use ofEyewitness Testimony, 35 Okla City U L Rev 131, 134 [2010] [collecting empirical data from numerous studies and concluding that "approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification"]). Over 40 years of social science research has demonstrated that eyewitnesses often make mistakes, post-event information can influence memory, and a witness's confidence in her testimony does not correlate with its accuracy (State v Henderson, 208 NJ 208, 242-48 [2011]). A significant reason for wrongful convictions based on misidentification is that the facts that impact the reliability of eyewitness identifications are beyond the ken of the average juror. Further, repeated studies establish that people incorrectly tend to credit inaccurate and unreliable identification, particularly if they are expressed with certainty (see Kenneth Deffenbacher & Elizabeth Loftus, Do Jurors Share a Common Understanding Concerning Eyewitness Behavior, 6 L & Hum Behavior, 15 [1982] [finding that substantial percentages of college students and non-students with and without prior jury experience gave incorrect responses on numerous multiple-choice questions regarding variables associated with eyewitness accuracy, including weapons-focus effects and the 18 relationship (or lack thereof) of confidence and accuracy]; Saul M. Kas sin, & Kimberly A. Barndollar, The Psychology of Eyewitness Testimony: A comparison of experts and prospective jurors, 22 J of Applied Soc Psychol, 1241-1249 [1992] [many scientific findings deemed reliable by an overwhelming majority of experts were considered unreliable by lay people, including confidence-accuracy relationship]). Accordingly, this Court has concluded that in some cases it is error to preclude experts from informing juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v Santiago, 17 NY3 d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]; People v LeGrand, 8 NY3d 449, 452 [2007]). Time and again, this Court has held, as the Appellate Division majority found, that when a case turns on the accuracy of an eyewitness identification with little to no corroborating evidence connecting the defendant to the charged crime, the defendant is entitled to call an expert on eyewitness identification, provided the second stage of the test for admissibility is also satisfied (see People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]; People v LeGrand, 8 NY3d 449, 452 [2007]). In applying this rule, this Court has repeatedly held that when, as here, the corroborating evidence of the defendant's role in the charged crime consisted solely 19 of identification from person(s) who did not already know the accused prior to the charged crime, it is an abuse of discretion to preclude the calling of an expert witness on eyewitness identifications (see People v Santiago, 17 NY3d 661 [2011]; People v LeGrand, 8 NY3d 449 [2007]). On the other hand, the Court has held that in cases, unlike Mr. McCullough's, in which the corroborating witnesses knew the defendant prior to the commission of the charged crimes, it is not an abuse of discretion to preclude the defense expert (see People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade, expert testimony properly excluded]; People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood]; People v Young, 7 NY3d 40, 46 [2006], habeas corpus petition granted in part 7 F Supp 2d 59 [WDNY 2011], grant of habeas corpus affd 715 F3d 79 [2d Cir 2013], cent den _ US_, 134 SCt 20 [2013] [two of Mr. Young's female acquaintances were found to possess property stolen during the home invasion; neither of them could have been the robber (who was a male); and one of these women testified that she received the property from the defendant]). As the Appellate Division correctly held, the quality and nature of the evidence corroborating Johnson's identification, in which the sole corroborating witness was a stranger to Mr. McCullough, was insufficient to relieve the trial court of its 20 obligation to proceed to the second stage of the LeGrand test and that the trial court abused its discretion in precluding the expert testimony without reaching the second stage of the the LeGrand test. The jury's assessment of the reliability of the identification testimony of James Johnson, an eyewitness to the charged murder and robbery and the victim of the attempted robbery, was critical to its determination of Mr. McCullough's guilt. This was a prosecution without any physical corroboration linking Mr. McCullough to the charged crimes. Nor were there any incriminating statements from Mr. McCullough. The only evidence purportedly corroborating Johnson's testimony that Mr. McCullough was a participant in the charged crimes was that of Willie Harvey. Harvey was originally charged with these very crimes (A 638). Harvey, admittedly did not know Mr. McCullough and did not claim to have ever seen Mr. McCullough other than on the evening of the charged crimes (A 693). Even after he identified other participants in the robbery/murder, including his brother and cousin, he had told the police that he did not recognize Mr. McCullough as being one of the people involved in the commission of the crimes (A 693-701). Harvey only identified Mr. McCullough in the jury room outside of the courtroom "right before [he] pled guilty" (A 705). Having identified Mr. McCullough, Harvey immediately then had the charges against him of murder and attempted robbery dropped as part of a plea deal 21 (A 693-701,705). Further, Harvey acknowledged that prior to ultimately identifying Mr. McCullough, he had seen media accounts that Mr. McCullough was charged with these crimes (A 695-698). Also, Harvey admitted lying and repeatedly changed his story (A 678-681). Indeed, the prosecutor, in his summation, stated that "Willie Harvey is a liar. Be crazy for me to come in here and tell you something different. He told you he was. He takes the stand and he says I lied that night. I lied to the police when they talked to me that morning. I lied to the police when they talked to me in January. I wasn't going to tell them everything I know. He tells them he lied in court. He lied." (A 902.) These problems with Harvey's testimony were cited by and relied upon by the Appellate Division in holding "that there was little or no corroborating evidence" (A3.) Yet, in arguing that the Appellate Division's reversal of Mr. McCullough's conviction was error, the People's Brief to this Court omits any mention of these problems with the reliability of Harvey's corroboration upon which the Appellate Division's holding is expressly based (see Appellant's Brief, 11-16). Given the above described problems with Harvey's testimony, the Appellate Division's holding that the preclusion of expert testimony on eyewitness identifications was an abuse of discretion was a correct application of this Court's holdings, since, as set forth below and as found by the Appellate Division, the second 22 stage of the LeGrand test was also satisfied (see People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]; People v LeGrand, 8 NY3d 449, 452 [2007]). It is further urged that the trial court's abuse of discretion in precluding Mr. McCullough from presenting an expert witness on identification evidence denied Mr. McCullough his rights to present a defense, to compulsory process, and to a fair trial under the United States and New York Constitutions (US Const, 6th and 14th Amends; NY Const, art I, § 6). B. The Trial Court's Rulings That the Corroborative Evidence Was of Such Nature That There Was No Need for an Expert on Identification Evidence, Without Considering the Second Stage of the LeGrand Test, Were an Abuse of Discretion And They Violated Mr. McCullough's Constitutional Right to Present a Defense For the reasons set forth below, the Appellate Division was correct in holding that the lower court's rulings (pre-trial and after the People rested) that the corroborative evidence was of such nature that there was no need for an expert on identification evidence were an abuse of discretion (see People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]; People v LeGrand, 8 NY3d 449, 452 [2007]). First, the chronology of this prosecution reveals the prosecution's own obvious and justifiable concerns with the identification testimony of Johnson, the victim of the attempted robbery when Dotson was robbed and shot. Johnson had never seen the 23 perpetrators prior to the commission of the crimes during which there was a gun at his head (A 332). On January 15, 2009, Johnson viewed a photographic array and told police that Mr. McCullough looked a lot like the first of the three men, the shooter, whom he described as the first of the men to enter the barbershop and as one of the darker skinned perpetrators wearing a dark coat and a black winter hat (SA 21; A 614- 622). The police, however, did not arrest Mr. McCullough based on this tentative identification. Then, on March 19, 2009, the police conducted a lineup identification procedure with Johnson at which Mr. McCullough was the only person whose photograph had been included in the array shown to Johnson in January. Johnson, who had never seen any of the perpetrators prior to the crime, identified Mr. McCullough, not as the shooter (as he had at the photo array), but as the third man to enter the store, whom he described as lighter skinned, taller, wearing a bright orange coat and matching baseball cap (SA 27-28, A 198-211, 228-30). The police still did not charge Mr. McCullough with these crimes after this March, 2009, identification (A 626). (Mr. McCullough was not charged until more than seven months later when a sealed indictment was issued by the Monroe County Grand Jury on October 29, 2009 [SA 1-5]). 24 The police and prosecutor apparently felt a need to buttress Johnson's identification of Mr. McCullough. So, on March 4, 2010, they again showed William Harvey, who had previously failed to select Mr. McCullough's photograph from an array, a second photo array containing Mr. McCullough' s photograph. By then Harvey also had been charged with the murder and robbery and, while in jail awaiting trial on those charges, had been exposed to newspapers and television accounts about Mr. McCullough being charged with these crimes (A 695-96). Despite Harvey having admittedly not knowing Mr. McCullough (A 658), and having stated that he did not recognize Mr. McCullough at the earlier photo array (SA 29; A 693), Harvey then identified Mr. McCullough as one of the persons who drove to and from the crime scene with his brother (SA 29-32; A 704-705). Immediately upon making that identification, Harvey was offered a plea deal in which the murder and robbery charges were dropped and he instead was permitted to plead guilty to robbery in the first degree and receive only a ten year sentence, with sentencing to be delayed until after he testified at Mr. McCullough's trial (TM 1033- 35). Thus, the People agreed to pay a high price to have some evidence with which to bolster the identification testimony of Johnson. Because the credibility of this bought testimony of Harvey was obviously suspect, there is a substantial possibility that the jury did not credit Harvey, but instead 25 convicted Mr. McCullough solely on the identification testimony of Johnson. Thus, Mr. McCullough moved for permission to present expert testimony on eyewitness identifications so that the jury had the ability to properly weigh Johnson's testimony in the context of what scientists now understand as the factors which impact the reliability of such testimony, which are beyond the ken of the average juror. Under these circumstances it was an abuse of discretion and a violation of Mr. McCullough's rights to present a defense, to compulsory process , and to a fair trial, for the court below to deny the motion and then deny the renewed motion on the ground that the corroboration of Johnson's testimony by Harvey was such that there was no need for expert testimony (A 131-134; 825-828). In People v LeGrand (8 NY3d 449 [2007]), this Court established a two-stage inquiry for considering a motion to admit expert testimony. In the first stage, the court decides whether the case "turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime" (8 NY3d at 452). In the second stage, a court must consider whether the proposed "testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community [which may require a Frye hearing], (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror" (Id.). 26 Pursuant to this holding, when a case turns on the accuracy of an eyewitness identification and little to no corroborating evidence connects the defendant to the charged crime, the defendant is entitled to call an expert on eyewitness identification provided the second stage of the four-part test is satisfied (see People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]; People v LeGrand, 8 NY3d 449, 452 [2007] ). All of the factors in the LeGrande two stage test were met here. But the trial court never even reached the second stage, incorrectly holding that there was no need to do so because of the corroborating evidence. It is true that where sufficient corroboration of a challenged identification exists the exclusion of proffered expert testimony on eyewitness identification generally does not constitute an abuse of discretion. But, that does not mean the existence of any or some corroboration is, in of itself, a legitimate reason for the trial court to exclude the expert testimony. Rather, under the holdings of this Court, what is critical is the quality and quantity of the corroboration. As detailed above, in Mr. McCullough's case, the only corroboration was the testimony of Harvey a co-defendant who had failed to choose Mr. McCullough's photograph at a lineup, who admittedly did not know Mr. McCullough prior to the night of the crimes, and who only identified Mr. McCullough when offered a plea 27 bargain in which the murder and robbery charges were dropped and instead he was permitted to plead guilty to attempted robbery and receive a sentence of only 10 years (A 638-640, 693-697). Harvey's version of events, in which he claimed that he was a passenger in the white Malibu and did not know that a robbery was planned, while other perpetrators were in a grey Volkswagen (A 645-655), is not only inconsistent with the testimony of Melton, who witnessed all of the perpetrators get out of and then re-enter the white car (A 413, 446), and with the testimony of Officer Drake who arrested Harvey on the night of the crime as he was driving the Malibu (A 13-70), but is also inconsistent with his own plea colloquy, during which Harvey told the court that he was the driver of the white Malibu and that he had the intent to commit a robbery (A 681, 684). No corroboration exists for the existence of this phantom grey car that Harvey testified the perpetrators used and that he was not in. Further, Harvey acknowledged that he had been exposed to Mr. McCullough's name and face on television and in the newspaper prior to his naming Mr. McCullough a participant and receiving his generous plea deal, which reduced his exposure from life in prison to only ten years (A 695-698). Harvey also admitted that he was a liar who repeatedly changed his story (A 678-681), and the prosecutor, in his summation, 28 acknowledged that Harvey was "a liar" who repeatedly lied to the police and to the court (A 902)'. The bought testimony of this admitted liar who did not even claim to have seen Mr. McCullough prior to the night of the charged crimes and who failed to identify Mr. McCullough at a photo array, while identifying his own brother and cousin, cannot be described as possessing strong indicia of reliability. False testimony by incentivized witnesses, obtained by favorable plea offers or other inducements, is one of the leading causes of wrongful convictions (Informants, http ://www.innocenceproj ect. org/understand/Snitches-Informants.php [last visited August 27, 2015]). Indeed, this Court has repeatedly explained that the reason for New York's accomplice corroboration requirement is that accomplice testimony is inherently untrustworthy because those charged with a crime often seek to escape the consequences and curry favor with officials by falsely implicating others (People v Sage, 23 NY3d 16, 23 [2014]; People v Sweet, 78 NY2d 263, 267 [1991]; People v Cona, 49 NY2d 26, 35-36 [1979]). "Willie Harvey is a liar. Be crazy for me to come in here and tell you something different. He told you he was. He takes the stand and he says, you know what, I lied to the police. I lied that night. I lied to the police when they talked to me that morning. I lied to the police when they talked to me in January. I wasn't going to tell them everything that I knew. He tells them he lied in court. He lied." (A 902.) 29 The police so much wanted to buttress their weak case against Mr. McCullough, which rested solely on Johnson's identification, that they offered, Harvey, a person who clearly participated in the felony murder of Dotson, a huge incentive to testify McCullough as a participant. That Harvey had previously failed to identify Mr. McCullough was apparently viewed by the prosecutor as irrelevant. But it is quite possible that the jury, having heard about Harvey's role, having heard how he repeatedly changed his story as it appeared to benefit him, and having heard that he is a liar, might have discredited Harvey's testimony and convicted Mr. McCullough solely upon the identification testimony of Johnson, whom the prosecutor stressed had stared at the face of the man with the gun which he would not forget and that he was certain that man was Mr. McCullough (A 887-893). That this intuitive argument is contradicted by studies on the impact of stress and weapon focus on the reliability of identification evidence highlights the need for expert testimony on the counter-intuitive scientific research, which has established that weapon focus renders identifications less, not more, reliable. Critically, not only was there no physical corroboration or statements linking Mr. McCullough to the crimes, but Mr. McCullough was a stranger to both Johnson 30 and Harvey, neither of whom claimed to have seen him prior or after the night of the crimes. In deciding whether it was an abuse of discretion to exclude expert testimony on identification without even conducting a Frye hearing, a critical factor for this Court has been whether the identification witness previously knew the defendant. In cases in which the corroborating witness(es) knew the defendant prior to the alleged crime, this Court has held that it is not an abuse of discretion to preclude expert testimony on eyewitness identification evidence (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack; expert testimony properly excluded]; People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery; expert testimony properly excluded]; People v Young, 7 NY3d 40, 46 [2006], habeas corpus petition granted in part 7 F Supp 2d 59 [WDNY 2011], grant of habeas corpus affd 715 F3d 79 [2d Cir 2013], cent den _ US_, 134 SCt 20 [2013] [two of Mr. Young's female acquaintances were found to possess property stolen during the home invasion; neither of them could have been the robber (who was a male); and one of these women testified that she received the property from the defendant]). 31 But in cases such as that of Mr. McCullough, in which the witnesses were all strangers to the accused, this Court has held that it is an abuse of discretion to exclude expert testimony on eyewitness identifications (People v Santiago, 17 NY3d 661, 670 [the defendant and witnesses were strangers, abuse of discretion to exclude expert testimony]; People v LeGrand, 8 NY3d 449, 452-453 [2007] [the defendant was not previously known to the witnesses, abuse of discretion to exclude expert testimony]). People v Santiago (17 NY3d 661 [2011]), in which this Court considered a claim that the preclusion of defense expert testimony on eyewitness identification was an abuse of discretion, is particularly instructive. In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses, both of whom were strangers to the defendant, did not sufficiently corroborate the victim's identification of the defendant, so as to render expert testimony on eyewitness recognition unnecessary. Thus, the Court held that it was error to exclude much of the proposed testimony (Id. at 673). Further, the Court held that "[b]ecause mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, 'courts are encouraged 32 . . . in appropriate cases' to grant defendants' motions to admit expert testimony on this subject" (Id. at 669). As detailed below, the evidence corroborating the identification testimony of Johnson is far weaker and less reliable than that which the Court in Santiago held to be insufficient corroboration to justify the exclusion of the identification expert. In Santiago, as in Mr. McCullough' s case, there was no physical evidence linking Mr. Santiago to the charged crime (Id. at 666). The assault victim first was shown a photo array including Mr. Santiago, and then viewed a lineup in which Mr. Santiago was included (Id. at 665). These facts are similar to the facts in this case, except that, unlike the array where Johnson merely stated that Mr. McCullough looked like one of the perpetrators, the victim in Santiago positively identified Mr. Santiago at the array (Id. at 665). There were two other witnesses who had observed the assailant in the Santiago case. One, Mr. Alarcon, like Harvey in this case, initially claimed not to recognize Mr. Santiago's photograph during a photo array (Id. at 665). Again, as with what happened with Harvey, months later, after being exposed to a newspaper photograph of Mr. Santiago, Mr. Alarcon told the prosecutor that he, in fact, had recognized Santiago and then later identified Mr. Santiago (Id. at 668). 33 The second corroborating witness, Mr. Rios was first shown a composite drawing of the suspect which he described as "more or less accurate." (Id. at 665.) About a year later he identified Mr. Santiago at a lineup (Id. at 668). In holding that the trial court erred in first precluding the expert testimony pre- trial and then in denying the renewed motion made after the People rested, without ever considering the second stage of the LeGrand analysis, this Court pointed out factors calling the corroborating identifications into question, such as the potential influence the prior exposure to Mr. Santiago's photograph or to the composite might have had on Mr. Alarcon and Mr. Rio's eventual identification of Santiago (Id. at 673). The Santiago Court also explained that the corroboration in Santiago was different than that in People v Allen (13 NY3d 251 [2011]), because, unlike in Santiago, the Allen Court concluded that "the corroborating identification possessed strong indicia of accuracy.... the defendant in Allen was known to the second eyewitness, who recognized him during the robbery." (People v Santiago, 17 NY3d 661, 671 [NY 2011 ].) In ruling that this preclusion of expert testimony was reversible error, the Court held that trial court should have given specific consideration to the proposed testimony concerning unconscious transference. That testimony would have been relevant, given that Alarcon saw a photograph of Santiago, and Rios saw a sketch of the perpetrator based on the victim's description, and 34 familiarity with these images may have influenced these eyewitnesses' identifications. (People v Santiago, 17 NY3d 661, 673 [NY 2011]). Thus, the Court in Santiago pointed to both the fact that the corroborating witnesses were strangers to the defendant and that, prior to identifying the defendant, they had exposure to an image of the defendant which might have impacted their identifications. Of, course, here too, Harvey was a stranger to Mr. McCullough and had been exposed to Mr. McCullough in a photo array and then both on television and in the newspaper (A 693-696). And, making his testimony even less reliable than that of the disinterested witnesses in Santiago, Harvey was an admitted liar who was testifying pursuant to a plea bargain in which the charges against him and prison time he faced were drastically reduced from murder to robbery for which he was promised a sentence of only ten years, far lower than the life sentence he had faced. Thus, the Appellate Division majority was correct in holding that, as in Santiago, the so-called corroborative testimony was not so reliable as to obviate the need to consider the next stage of the LeGrand test. In arguing that Harvey's testimony provided sufficient corroboration of. Johnson, the Appellant's Brief never mentions that Harvey admittedly: (1) did not know Mr. McCullough; (2) did not claim to have ever seen Mr. McCullough other than on the evening of the charged crime; (3) failed to identify Mr. McCullough from 35 a photographic array at which he identified both his brother and cousin as participants in the crime; (4) had seen media accounts that Mr. McCullough was charged with the crime prior to identifying him; and (5) repeatedly lied in his account of the events. Instead, the Appellant's brief, having omitted any reference to the very facts relied on by the Appellate Division majority for its holding, argues that the "corroboration provided here by Willie Harvey is like the critical evidence in Allen, and is distinctly stronger than the evidence that sufficed in Young. " (Appellant's Brief, 14). As discussed earlier in this brief, critical to this Court's decisions in both People v Allen (13 NY3d 251, 262-63 [2011]) and People v Young (7 NY3d 40, 46 [2006], habeas corpus petition granted in part 7 F Supp 2d 59 [WDNY 2011], grant of habeas corpus affd 715 F3d 79 [2d Cir 2013], cert den _ US_, 134 SCt 20[2013]), was that in those cases, unlike in Mr. McCullough's case, the corroborating witnesses knew the defendant prior to the commission of the charged crimes. As this Court explained in People v Abney (13 NY3d 251, 266-267 [2011]), in Young, two of the defendant's female acquaintances were found to possess property stolen during the home invasion Mr. Young was charged with committing; neither of them could have been the robber (who was a male); and one of these acquaintances testified that she got the property from Mr. Young. The Abney Court then held that 36 we consider Allen to be more akin to . . . Young. We are unwilling to second-guess the trial judge's exercise of discretion in Allen because the case did not depend exclusively on Bierd's eyewitness testimony . . . . Critically, Almonte independently identified defendant as the knife- wielding robber who searched him and stood nearby throughout the course of the robbery. And defendant was not a stranger to either Bierd or Almonte. (People v Abney, 13 NY3d 251, 269 [2009] [emphasis added].) More recently, in People v Santiago (17 NY3d 661, 671 [NY 2011]), this Court again explained that in Allen the corroborating identification possessed strong indicia of accuracy because "[i]n particular, the defendant in Allen was known to the second eyewitness, who recognized him during the robbery." Because, by contrast, the two corroborating witnesses in Santiago were both strangers to the accused, the Court in Santiago held that to be insufficient corroboration. Thus, the key factual basis for the finding of sufficient corroboration in Allen and Young was that the corroboration came from witnesses who were not strangers to the defendants. Just as it omits any mention that Harvey was a stranger to Mr. McCullough, the Appellant's Brief never mentions what this Court has explained is the key factual basis for the very holdings upon which the brief bases its arguments. The dissenting Justices would have found the corroboration was sufficient because Mr. Johnson had a "good" opportunity to observe the perpetrators and "provided very detailed testimony regarding the events, including a description of 37 defendant and his actions," which was sufficiently corroborated by the identification of defendant by [Harvey]" whose testimony "harmonized" with Mr. Johnson's (A 5-7). This reasoning is problematic. First, as the majority wrote, "the fact that the eyewitness viewed the perpetrators at relatively close range and in well-lit conditions `does not constitute corroborating evidence of the identification for purposes of determining whether expert testimony regarding the accuracy of an eyewitness identification is admissible' " (A 3.) Second, the corroborating testimony which this Court held to be insufficient in People v Santiago (17 NY3d 661 [2011]) and People v LeGrand (8 NY3d 449 [2007]) also harmonized with that of the eyewitness. Thus, this Court's holdings in Santiago and LeGrand implicitly reject the dissent's rationale as to the significance of harmonizing testimony by corroborating witnesses. There is still another problem with the lower court's exclusion of the expert testimony based on its finding that Harvey provides sufficient corroboration. The United States Supreme Court in Holmes v South Carolina (547 US 319 [2006]) held that it is a violation of a defendant's rights under the Sixth and Fourteenth - Amendments to the United States Constitution to exclude evidence based solely on the strength of the prosecution's case or on the basis of evidentiary rules that serve no legitimate purpose or that are disproportionate to the ends that they ostensibly promote. 38 In Holmes, the Supreme Court considered whether the South Carolina Supreme Court erred in affirming a trial court's exclusion of evidence of a third party's guilt proffered by the defendant. In that case, the state supreme court had applied a rule allowing the evidence to be excluded because there was strong evidence of defendant's guilt (Id. at 324). In a decision unanimously reversing Mr. Holmes's conviction, the United States Supreme Court held that a defendant has a constitutional right under the Sixth and Fourteenth Amendments to present otherwise admissible evidence of innocence regardless of the perceived strength of the prosecution's case (Id. at 329- 31). This right ensures that the defendant will be able to present evidence so that the jury—not the judge—may assess such evidence (such as determining the reliability of the testimony of both Johnson and Harvey) (Id. at 330). Thus, when deciding whether there is reliable corroborating evidence of an eyewitness identification, courts must avoid an application of a corroboration which unduly precludes a defendant's right to present testimony on the critical issue of identification evidence, as such a ruling would violate a defendant's Sixth and Fourteenth Amendment rights to present a complete defense (Id.) Even if it is generally constitutionally permissible for a court to weigh the quality of the corroborative evidence in deciding whether to permit expert testimony 39 on identification evidence, the trial court's decisions (both pre-trial and on the renewal of the motion after the People rested) to preclude Mr. McCullough from presenting an expert witness on eyewitness testimony, without considering the second stage of the LeGrand test, was an abuse of discretion which denied Mr. McCullough his constitutional rights to present a defense and to a fair trial. C. The Appellate Division Correctly Determined That the Proposed Testimony Satisfied the LeGrand Stage Two Factors and, Thus, Reversed the Judgment and Granted a New Trial 1. Introduction The Court in People v LeGrand (8 NY3d 449, 452 [2007]) set forth four factors that should be considered in determining whether the identification expert should be permitted to testify. The expert testimony must be: (1) relevant to the witness's identification of defendant; (2) based on principles that are generally accepted within the relevant scientific community; (3) proffered by a qualified expert; and (4) on a topic beyond the ken of the average juror (see People v Abney, 13 NY3d 251, 267 [2011]). If the trial court had conducted the requisite inquiry, it would have found that all four of the LeGrand stage two factors were met here. 40 2. The Proffered Testimony Would Have Been Relevant to the Jury's Assessment of the Testimony Identifying McCullough as a Participant in the Charged Crimes This was a case lacking any physical evidence or statement from Mr. McCullough linking McCullough to the charged crimes. The prosecutor's case was built around the identification testimony of Johnson, the surviving victim. Thus, the proffered testimony of Dr. Nancy Franklin, regarding some of the factors that affect memory and perception, such a stress from the level of violence, weapons focus, and the length of time of the incident, was particularly relevant to the ability of the jurors to determine whether any of these factors affected Johnson's eyewitness testimony presented at Mr. McCullough's trial. As summarized by the Appellate Division Those factors are clearly relevant to the eyewitness's identification of defendant (see Abney, 13 NY3d at 268). With respect to event violence and weapon focus, the eyewitness testified that one of the assailants put a gun to his head, pistol-whipped both him and the victim, and then shot the victim in the chest at close range. At least one of the other assailants also displayed a handgun. After the assailants fled, the shooter returned and the eyewitness heard a "clicking sound" over his head. The eyewitness testified that he did not know how long the robbery lasted. (A 4.) 41 3. The Proffered Testimony Was Based on Principles That Are Generally Accepted Within the Relevant Scientific Community New York courts have repeatedly determined that there has been abundant research in the field of forensic psychology as it relates to witness identification and that "these findings — produced through sound, generally accepted experimentation techniques and theories, published in scholarly journals and subjected to peer review — have over the years gained acceptance within the scientific community." (People v LeGrand, 8 NY3d at 455.) Applying this standard, New York courts have repeatedly held that the proffered expert testimony on weapons focus, event duration, and event stress are based on principles that are generally accepted within the relevant scientific community. One example is the trial court's decision rendered after this Court reversed the conviction and ordered a new trial in People v Abney (13 NY3 d 251 [2009]) due to the preclusion of proffered testimony of an identification expert. This Court held that the "trial judge in Abney abused his discretion when he did not allow [the expert] to testify on the subject of witness confidence. As for the remaining relevant proposed areas of expert testimony—the effect of event stress, exposure time, event violence, weapon focus, and cross-racial identification—the trial judge should have conducted a Frye hearing before making a decision on admissibility." (People v Abney, 13 NY3d 251, 268 [2009].) 42 The trial court, prior to the re-trial, then conducted a Frye hearing at which the defense expert was Dr. Nancy Franklin, the proffered defense expert in this case. After testimony from both Dr. Franklin and the prosecution's expert witness, the court issued a lengthy decision, detailing why, based on the state of the research, it determined that Abney met his burden of showing that the phenomena of event stress, the weapon focus, and event duration are all generally accepted as reliable in the community of psychologists who study and conduct research in the eyewitness identification field (People v Abney, 31 Misc 3d 1231 [A] [S Ct NY 2011]). Indeed, on all of the proposed topics of Dr. Franklin's testimony in this case, there exists overwhelming research and consensus in the scientific community. Scientific research shows that the presence of a weapon during a crime "will draw central attention, thus decreasing the ability of the eyewitness to adequately encode and later recall peripheral details." (Nancy Mehrkens Steblay, A Meta—Analytic Review of the Weapon Focus Effect, 16 Law & Hum Behav 413, 414 [1992]). Thus, an analysis of 19 weapon-focus studies involving 2082 identifications found that, on average, identification accuracy decreased approximately 10 percent when a weapon was present (Id. at 415-17). A more recent meta-analytic review confirmed- this finding (Jonathan M. Fawcett, et al, Of guns and geese: a meta-analytic review of the `weapon focus' literature, Psychology, Crime & Law, 10.1080 [June 2011]). 43 Thus, courts have permitted expert testimony on weapon focus after conducting a Frye hearing (see e.g., People v Banks, 16 Misc 3d 929, 944 [Westchester Co Ct 2007]; People v Williams, 14 Misc 3d 571 [S Ct Kings Co 2006]). Here, Johnson was looking at the hand gun used to kill his friend and threaten him with a clicking of the gun near his head (A 201-14). Also, high levels of stress have been shown to induce a defensive mental state that can result in a diminished ability to accurately process and recall events, leading to inaccurate identifications (Kenneth A. Deffenbacher et al., A Meta—Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum Behav 687, 687, 699-700 [2004]; Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J L & Psychiatry 265 [2004]). For example, a review of 16 studies involving 1727 participants found that accurate identifications decreased 22.2% under high stress conditions (Deffenbacher et al., A Meta—Analytic Review of the Effects of High Stress on Eyewitness Memory at 692, 694). Here, Johnson witnessed his friend shot to death right next to him and was threatened by the same shooter, an undeniably stress provoking circumstance (TM 595-608). 44 Similarly, there is an overwhelming general consensus in the scientific community regarding the impact of event duration on the reliability of eyewitness identifications. Event duration, refers to "the phenomenon that [the] longer a person is exposed to a face the more likely that person will make a correct identification at a later time." People v Banks, 16 Misc 3d 929, 931, n. 1 [Westchester Co Ct 2007]; People v Williams, 14 Misc 3d 571 at 579 [S Ct Kings Co 2006]. Likewise, it stands for the converse proposition that an identification is likely to be less accurate if the perpetrator is viewed only for a brief period of time. See B.L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.L. Pol'y & Ethics J. 327 (2006)...Included within this phenomenon is also the notion that in connection with "particularly stressful events, we all tend to overestimate how long we were exposed to something" See Hearing Testimony at 52.; J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross—Examination, 36 Stetson L Rev 727, 754 (2007). (People v Abney, 31 Misc 3d 1231[A] [S Ct 2011].) As Dr. Franklin explained in the Frye hearing in Abney, this event duration phenomenon, is generally accepted as reliable in the scientific community, and is supported by a 1986 peer reviewed meta-analysis (see P.N. Shapiro & S. Penrod, Meta—Analysis of Facial Identification Studies, 100 Psychological Bulletin 139, 148 [1986] [this meta-analysis reviewed "128 eyewitness identification and facial recognition studies, involving 960 experimental conditions and 16,950 subjects" and concluded, inter alia, that "with longer encoding time, you have greater ability to identify a perpetrator"]). (People v Abney, 31 Misc 3d 1231 [A] [S Ct 2011]). 45 A more recent meta-analysis shows that short exposure durations lead to remarkably high rates of false identifications (Bornstein, et al, Effects of exposure time and cognitive operations on facial identification accuracy: a meta-analysis of two variables associated with initial memory strength, Psychology, Crime, and Law, Vol 18, number 5, June 2012, 473-490). Consequently, numerous New York Courts have permitted expert witnesses to testify with respect to this phenomenon. (see e.g., People v Harris, 74 AD3d 984 [2d Dept 2010]; People v Abney, 31 Misc 3d 1231[A] [Sup Ct 2011]; People v Banks, 16 Misc 3d 929, 931, 9341 [Westchester Co Ct 2007]; People v Williams, 14 Misc 3d 571 [S Ct Kings Co 2006]; People v Smith, 191 Misc 2d 765 [S Ct NY 2002]). Thus, the proposed testimony was both highly relevant and generally accepted within the relevant scientific community. Because the trial court in Mr. McCullough's case erroneously denied the motion to permit Dr. Franklin to testify without either conducting its own Frye hearing or deciding that based on prior court decisions no such hearing is necessary, there is no record in this case on the acceptance of the proffered testimony. Thus, with respect to this prong of the LeGrand test, the Appellate Division majority, quoted from and adopted this Court's holding in People v Oddone (22 NY3d 369 [2013]), stating "[w]ith respect to general acceptance in the scientific community, we 'must assume 46 on this record' that Franklin's proposed testimony is based on principles that are generally accepted in the scientific community because 'defendant sought, and was denied, a Frye hearing on that issue' (People v Oddone, 22 NY3d 369, 379)." (A 4.) In Oddone, the defendant sought to call an expert on eyewitness identifications to testify that people tend to overestimate the duration of brief events, relying on a theory referred to as "Vierordt's Law." (People v Oddone, 22 NY3d at 378).The trial court precluded this testimony without holding a Frye hearing on whether "Vierordt's Law" is a principle generally accepted within the scientific community on grounds unrelated to whether "Vierordt's Law" is accepted within the scientific community (Id. at 379). In discussing whether the court was correct in precluding this testimony and whether the LeGrand test was satisfied, this Court held that "[w]e must assume on this record that "Vierordt's Law" is a generally accepted scientific principle; defendant sought, and was denied, a Frye hearing on that issue." (Id. at 379 [2013].) In reversing Mr. Oddone's conviction and ordering a new trial, the Court made clear that it was not deciding whether the proffered testimony was required to be admitted at the re- trial, but "only that the question should be addressed in light of the factors discussed in this opinion." (Id. at 380.) 47 Thus, the Appellate Division majority's quotation and application of this holding to Mr. McCullough's case was appropriate. The Appellate Division merely held that Mr. McCullough is entitled to a re-trial. Prior to that re-trial, the trial court needs to determine the admissibility of the expert testimony either by conducting a Frye hearing, or by determining, after a review of prior court decisions, that the proffered testimony is based on principles accepted within the relevant scientific community. In this regard, it should be noted that this Court has held that a court need not hold a Frye hearing when it can rely on previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony. Thus, courts need not revisit such determinations as to various factors impacting the reliability of identification testimony that have already been made after Frye hearings on the same topic (People v LeGrand, 8 NY3d at 458 ["Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered [and courts] may take judicial notice of reliability of the general procedure (People v Wesley, 83 NY2d 417, 436 [1994] [Kaye, concurring])"]). In this case, as described above, the proffered testimony was to factors which have already received judicial recognition. Courts have held that there exists the requisite scientific consensus to permit expert testimony on the impact of event stress 48 (People v Abney, 31 Misc 3d 1231[A] [S Ct NY 2011]), weapons focus (People v Banks, 16 Misc 3d 929, 944 [Westchester Co Ct 2007]; People v Williams, 14 Misc 3d 571 [S Ct Kings Co 2006]; People v Harris, 74 AD3d 984 [2d Dept 2010]; People v Abney, 31 Misc 3d 1231[A] [Sup Ct 2011]); and event duration (People v Banks, 16 Misc 3d 929, 931, 9341 [Westchester Co Ct 2007]; People v Williams, 14 Misc 3d 571 [S Ct Kings Co 2006]; People v Smith, 191 Misc.2d 765 [S Ct NY 2002]).Trial courts might, thus, determine that it would be an expensive and time consuming waste to require more Frye hearings on these topics. 4. The Proffered Witness is a Judicially Recognized Qualified Expert Third, the proffered witness, Dr. Nancy Franklin, a professor of psychology whose areas of research and publications include cognition, human cognition and information processing, with a concentration in memory and false memory (A 64-71) is clearly a qualified expert since "[a] witness may testify as an expert if it is shown that [she] is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation." (Karaski v Bird, 98 AD2d 359 [1st Dept 1984].) Indeed, the trial court in this case subsequently conducted a Frye hearing in a different case and ruled that "Franklin is an expert in her field. She has the requisite scientific background and knowledge to testify as an expert in the field 49 of eyewitness identification" (People v Norstrand, 35 Misc 3d 367, 372 [S Ct Mon 2011].) Similarly, on remand from this Court, the trial court in Abney also held that Dr. Franklin is a qualified expert on eyewitness identifications (People v Abney, 31 Misc 3d 1231 [A] [S Ct NY 2011]). The court in Abney found that "[she] has been qualified on numerous other occasions as an expert, and is undeniably an expert in human memory, the very field upon which the criticisms of the reliability of eyewitness identifications are based." (Id.) Citing the decisions in Norstrand and Abney the Appellate Division correctly found that Dr. Franklin is a qualified expert on eyewitness identifications." (A 4.) 5. The Proposed Testimony Was on Aspects of Memory and Perception Beyond the Ken of the Average Juror Finally, this Court has repeatedly held that expert testimony on the psychological factors affecting memory and perception are indeed on a topic beyond the ken of the average juror, since many of the cognitive factors are actually counterintuitive to the common knowledge of the average juror (People v Santiago, 17 NY3d 661, 672; People v Abney, 13 NY3d 251, 268; People v LeGrand, 8 NY3d 449, 458). 50 D. The Appellate Division Was Correct in Holding That it Was Error to Preclude the Expert Testimony and In, Thus, Ordering the Reversal of Mr. Mccullough's Conviction and Granting Him a New Trial The Appellate Division was correct in holding that the trial court abused its discretion by excluding the expert testimony of Dr. Franklin, without a hearing, on the ground that there was corroborative evidence. The sole corroborative evidence, the bought testimony of Harvey, an admitted liar who was a stranger to Mr. McCullough and who previously had told police that he did not recognize Mr. McCullough, was unreliable. Even if this corroborative evidence appeared reliable, Dr. Franklin's proffered testimony would have directly rebutted, counteracted, or mitigated the prosecution's evidence on the same factual issue (thereby implicating Mr. McCullough's rights to present a defense, compulsory process and a fair trial [Holmes v. South Carolina, 547 US 319, 330-331 (2006)]). Perhaps the best indicia of the harm created by the preclusion of the expert testimony that identifications made during times of stress or when weapons are displayed are less reliable, was that the District Attorney in summation, argued to the jury that Johnson's identification was reliable and should be credited because of the "concentrated awareness" he had due to the robbery/murder being a significant event (A 887-888). Thus, the prosecutor based his argument on the intuitive supposition that 51 eyewitnesses reliability increases during stressful events, while the expert testimony would have informed the jury that the opposite is true. This Court held in Santiago, that Trial error is only harmless when there is overwhelming proof of the defendant's guilt and no significant probability that the jury would have acquitted the defendant were it not for the error (People v Crimmins, 36 NY2d 230, 242 [1975]). Here, the proof of defendant's guilt was not overwhelming; therefore, the errors cannot be regarded as harmless. We need not decide the probability that the verdict would have been different if the expert testimony had not been excluded. (People v Santiago, 17 NY3d 661, 673-74 [2011].) As in Santiago, in this case, in which the identification testimony was central to the People's case, the erroneous preclusion of the expert testimony of Dr. Franklin, without a hearing, cannot be deemed harmless error. Consequently, the Appellate Division correctly "ORDERED that the judgment so appealed from is reversed on the law and a new trial is granted." (A 2.). This order, upon a determination that expert testimony on identification was improperly precluded, is indistinguishable from that ordered by this Court in People v Santiago (17 NY3d 661, 674 [2011] ["Accordingly, the order of the Appellate Division should be reversed and a new trial ordered"]) and in People v Abney (13 NY3d 251, 269 [2009] ["the order of the Appellate Division should be reversed and a new trial ordered"]). 52 The People, in Point II of the Respondent's Brief, argue that "[e]ven if the court has abused its discretion in denying defendant's request, the proper remedy would have been to remit the matter to the trial court for a hearing pursuant to Frye v United States (293 F 1013 [DC Cir 1923])." (Respondent's Brief, 17.)This contention is legally wrong. First, as noted above, the relief ordered by the Appellate Division is the very relief that this Court has ordered on a finding that there was an improper preclusion of expert testimony (People v Santiago (17 NY3d 661, 674 [2011]; People v Abney (13 NY3d 251, 269 [2009]). The People cite no decision of this Court which, upon a holding that there was an improper preclusion of expert testimony, ordered that the case be remitted and that a Frye hearing be conducted . The decision and order of this Court in People v Santiago (17 NY3 d 661 [2011]) is particularly instructive. Upon a finding that the trial court improperly precluded expert testimony on identification without having held a Frye hearing, this Court held that Supreme Court should also have given more adequate consideration to whether the proposed testimony concerning exposure time, lineup fairness, the forgetting curve, and simultaneous versus sequential lineups was relevant to this case and beyond the ken of the average juror, and if necessary held a Frye hearing, to determine whether these factors are generally accepted as reliable within the relevant scientific community. (People v Santiago, 17 NY3d 661, 672 [2011].) 53 This Court in Santiago did not, as the People urge should have been done in this case, remit the matter to the trial court to determine relevance and for a hearing pursuant to Frye. Instead, the Santiago Court reversed the conviction and ordered "a new trial." (Id. at 674.) Thus, the Appellate Division's ordered relief in Mr. McCullough's case is precisely what this Court ordered in Santiago. As discussed above, one reason to not order a Frye hearing is that before any re-trial the trial court may determine, based on the holding of other courts, that there exists the requisite scientific consensus to permit expert testimony on the weapons focus, event duration, and event stress, without the need for an expensive and time consuming Frye hearing (People v LeGrand, 8 NY3d 449, 458 [2007]). For all of these reasons, the Appellate Division was correct in ordering the reversal of Mr. McCullough's conviction and granting him a new trial. 54 CONCLUSION The memorandum and order of the Appellate Division, Fourth Department, reversing Mr. McCullough's conviction and ordering a new trial trial should be affirmed. In the alterative, the Court should order such other and further relief as this Court deems proper. Dated: September 10, 2015 Respectfully submitted, SA/.2L BRIAN SHIFFRIN, ESQ. OF COUNSEL TO TIMOTHY P. DONAHER, MONROE COUNTY PUBLIC DEFENDER 16 West Main Street, Suite 243 Rochester, New York 14614 Tel: (585) 423-8290 Fax: (585) 423-0890 55