Enacts the "criminal procedure law reform act"

Section 2 would amend section 60.25 of the Criminal Procedure Law to permit the admission at trial of certain reliable identification testimony.

Sections 3 and 4 would amend, respectively, subdivision 6 of section 210.20 and subdivision 2 of section 460.40 of the Criminal Procedure Law, to ensure that the prosecution has an opportunity to exercise its right to appeal pre-trial orders dismissing a count or counts of an indictment.

Section 5 would amend section 260.20 of the Criminal Procedure Law, to make clear both that defendants must object at trial before claiming on appeal that their statutory right to be present at trial was violated, and that harmless error analysis must be applied to alleged violations of this right.

Sections 6 and 7 would amend subdivision 8 of section 450.20 and section 450.50 of the Criminal Procedure Law, respectively, to grant prosecutors the right to appeal pre-trial orders precluding evidence.

Section 8 would create a new section 240.46 of the Criminal Procedure Law that would limit a party's entitlement to corrective remedies under the Criminal Procedure Law for discovery violations only upon a showing that the party's substantial rights were affected, and then only to the extent required to cure the prejudice to those rights.

Section 9 would amend subdivision 2 of section 710.30 of the Criminal Procedure Law.

Subdivision 2 requires the prosecution to provide notice to the defendant within 15 days after arraignment of its intention to offer at trial statements made by the defendant or identification testimony which might conceivably have been acquired in violation of the defendant's constitutional rights. As amended by the bill, subdivision 2 of section 710.30 continues the requirement that such notice be served within 15 days of arraignment and prior to trial. However, under subdivision 2 as amended by the bill, courts will be barred from precluding such statements or testimony at trial when notice is not served within the 15 day period.

Section 10 provides that the act shall take effect immediately and shall apply to all cases and proceedings on or after the date on which it shall have become a law.

Existing law

The relevant provisions of existing law are discussed below in "Statement in Support."

Justification

This bill will remedy serious deficiencies in the Criminal Procedure Law.

1. RIGHT TO BE PRESENT AT TRIAL .ct. In a number of cases -- for example, PEOPLE v. DOKES , 79 N.Y.2d 656 (1992) -- the Court of Appeals has misconstrued section 260.20 of the Criminal Procedure Law, which confers a statutory right to be present at trial that is broader than the federal Constitutional Right. Specifically, the Court has ruled that a defendant, who never objects at trial that he should have been present at a particular proceeding, can nonetheless raise the objection on appeal for the first time. This holding is at odds with subdivision 2 of section 470.05 of the Criminal Procedure Law, which requires that alleged errors be protested at trial when they can be readily corrected. Moreover, the Court has also ruled that a violation of this statutory right always requires the reversal of the defendant's conviction even when the evidence of guilt is overwhelming. This holding is at odds with subdivision 1 of section 470.05 of the Criminal Procedure Law, which directs appellate courts to decide appeals "without regard to ... defects which do not affect the substantial rights of the parties."

The Court has extended its "right to be present" jurisprudence to the jury selection process. See, e.g., People v. Antommarchi, 80 N.Y.2d 247 (1992), and People v. Sloan, 79 N.Y.2d 386 (1992). Thus, the Court has ruled that this right is violated when prospective jurors discuss outside the hearing of the defendant various issues bearing on their ability to be fair and impartial, even though the defendant's attorney is present during the discussions. Although the overwhelming majority of defense attorneys and defendants believe that the absence of the defendant is beneficial to the defense because it promotes candor from prospective jurors, our courts now reverse convictions even though the prospective jurors were never seated as jurors, and despite the complete absence of any basis for believing that the jurors who did convict the defendant were other than completely fair and impartial. Moreover, these reversals occur even though the defendant never objected to his or her absence and despite overwhelming evidence of guilt. These reversals are all the more indefensible, given that the Court has repeatedly ruled that "the jury selection process is an ancillary proceeding -- not a 'core' proceeding critical to the outcome of a criminal trial." People v. Roman, 88 N.Y.2d 18,25 (1996).

The tragic consequences of this line of cases are dramatically illustrated by the Court's decision in People v. Ricks and Mack, decided with People v. Maher, 89 N.Y.2d 318 (1996). In this case, the two defendants were convicted of an especially brutal and shocking murder: the shotgun killing during the robbery of a young man, 31-year-old Berhane Woldemariam, who was returning home on Christmas Eve with Christmas presents for needy neighborhood children. During the jury selection process some prospective jurors discussed at the bench, in the presence of the attorneys but not the defendants, the issue of exposure to pretrial publicity about the murder. These prospective jurors were excused from service. The defendants never objected either to their absence from the discussions or to these prospective jurors being excused. Solely because the defendants were not present during these discussions, the Court of Appeals upheld the decision of a lower court reversing the defendants' convictions for the senseless murder of Mr. Woldemariam. Thus, defendants fairly tried and convicted before an impartial jury received the windfall of a new trial, and the family of Mr. Woldemariam must undergo the ordeal and painful uncertainties of another trial.

Regrettably, moreover, the decision in Ricks and Mack is not at all unusual. Indeed, on the same day those cases were decided, the violent felony convictions of two other criminals were reversed on the same ground. People v. Davidson, 89 N.Y.2d 881 (1996). In recent years the convictions of other defendants fairly convicted of serious crimes have been reversed on the basis of the Court's unfortunate "right to be present" jurisprudence. See, e.g., People v. Cherry, 237 A.D.2d 296 (2nd Dept. 1997) (drug sale); People v. Ballard, 224 A.D.2d 914 (4th Dept. 1996) (drug sale); People v. Favor, 82 N.Y.2d 254 (1993) (forcible rape, kidnapping, attempted robbery); People v. Davis, 221 A.D.2d 557 (2nd Dept. 1995) (first degree manslaughter, criminal possession of weapon); People v. Foster, 217 A.D.2d 558 (2nd Dept. 1995) (murder); People v. Pinero, 220 A.D.2d 540 (2nd Dept. 1995) (drug sale); People v. Balkum, 199 A.D.2d 975 (4th Dept. 1993) (attempted sodomy).

More recently, this disturbing line of jurisprudence has been further broadened by the Court of Appeals in People v. Janvier, 92 N.Y.2d 993 (1998). In that case, the defendant, a second violent felony offender, was convicted of robbery and criminal possession of a weapon. On appeal, he contended that he was denied the right to a fair trial because the trial court, following Antommarchi, did not allow him to waive his right to be present in the robing room during the voir dire of prospective jurors. The Appellate Division unanimously affirmed defendant's conviction, holding that his contention was without merit or, in any event, "harmless in view of the overwhelming evidence of guilt." See, 244 A.D.2d 272 (1997). The Court of Appeals reversed the Appellate Division's order and granted a new trial, holding that the trial court's failure to allow the defendant to be present in the robing room constituted an abuse of discretion since the defendant may have wished to be absent from the proceedings for "strategic reasons." Thus, this represents another rule embraced by the Court of Appeals that enhances the rights of criminals by affording them the right to a new trial even in the absence of evidence indicating actual prejudice.

The criminal justice system can ill-afford a rule that relieves defendants of their obligation to object to alleged errors at trial, because this obligation promotes the prompt and final resolution of criminal cases. Nor can the criminal justice system afford a rule that requires new trials on account of errors that do not affect either the overall fairness of a trial or the verdict. Still less can the criminal justice system countenance a rule that so badly damages public confidence in the criminal justice system. Accordingly, the bill amends section 260.20 of the Criminal Procedure Law to make clear that defendants must object at trial to alleged violations of the statutory right to be present and that a conviction may not be reversed because of a violation that does not prejudice the outcome of the trial.

2. O'DOHERTY REFORM .ct . The bill also modifies the inflexible rule of People v. O'Doherty, 70 N.Y.2d 479 (1987). Under section 710.30 of the Criminal Procedure Law, the prosecution must notify the defense within 15 days of arraignment of its intent to offer the defendant's statement or identification evidence against him at trial. In O'Doherty, the Court of Appeals held that even where the prosecutor had no knowledge of the existence of a statement or identification testimony within the 15-day period, the failure to give notice required suppression of the evidence. This draconian sanction deprives a trial jury of critical evidence and confers a benefit on a defendant that is wholly disproportionate to the error. The bill provides a more narrowly tailored remedy: it requires a court to grant an adjournment to permit the defendant time for preparation whenever notice has been given after the narrow 15-day period.

The court's decision in People v. Lopez, 84 N.Y.2d 425 (1994), illustrates further weaknesses in current law. In Lopez, the defendant was convicted of attempted murder and other violent felonies after stabbing a woman in her Albany home during the course of a burglary. Fortunately, the stabbing victim was able to remove the knife from her chest and stab the defendant, who was arrested by the police after they learned he had been treated for a stab wound. After he was arrested, the defendant made oral and written statements admitting the attack, and was identified by the victim in a lineup. Within the prescribed 15-day period, the prosecution served notice of its intention to offer evidence of the statements and the identification testimony. The notice, however, did not apprise the defendant of the content of the admissions he had made or relate the date and time of the lineup he had been in.

Although the prosecution subsequently provided the defendant with these details -- and, of course, the defendant certainly knew what he had said and when he was in the lineup -- the defense nonetheless contended that the prosecution should be precluded from offering evidence of the admissions and the lineup at trial. According to the defense, the failure to give details of the evidence within the 15-day period was tantamount to a complete failure to give any notice. The trial court rejected the claim and the defendant was convicted.

The Court of Appeals, however, agreed with the defendant and upheld the Appellate Division's decision reversing the conviction and ordering a new trial -- at which the prosecution would be barred from presenting to the jury the evidence that the defendant had confessed and had been identified by her attacker shortly after the crime. In its opinion, the Court ruled that it was of no moment that the defense was given details about the statements and the lineup during discovery.

Similarly, the Court held that it was "irrelevant that the People's failure to satisfy the requirements of 710.30 did not prejudice defendant." Lopez, 84 N.Y.2d at 425.

Regrettably, the flawed reasoning in Lopez has been expanded in recent years. In People v. Scott, 222 A.D.2d 1004 (4th Dept. 1995), 1v. den. 87 N.Y.2d 1025, mot. recons. withdrawn 88 N.Y.2d 1071 (1995), the Fourth Department overturned the defendant's felony assault conviction, holding that failure to set forth the identity of the witnesses and the time, place and manner in which the identification was made in the 15-day notice warranted reversal. Similarly, in People v. Sang, 212 A.D.2d 1024 (4th Dept. 1995), 1v. den. 86 N.Y.2d 740 (1995), the Fourth Department held that failure to inform the defendant of the time, place and manner of a photo array identification in the 15-day notice was sufficient grounds to reverse the defendant's robbery conviction. All that mattered in these three cases to the Court of Appeals and the Appellate Division Fourth Department was that Criminal Procedure Law § 710.30 requires details within the 15-day period.

What also matters, of course, are the rights of crime victims and the right of all New Yorkers to accurate determinations of guilt or innocence following trials in which reliable evidence is admitted -- not excluded because of technical violations that do not prejudice defendants.

3. APPEALS OF PRECLUSION ORDERS : The bill closes a loophole in the Criminal Procedure Law that prevents the people from obtaining on appeal the reversal of all erroneous pre-trial orders that effectively prevent prosecutions from going forward. Under current law, when judges "suppress" (i.e., rule inadmissible at trial) key evidence prior to trial on the ground that the defendant's constitutional rights were violated, the prosecution has the right to take an immediate appeal whenever the effect of the suppression order is to destroy the prosecution's case. However, when judges "preclude" (i.e., rule inadmissible at trial) key evidence prior to trial on the ground that a mere statutory right of the defendant was violated, the prosecution has no right to appeal the preclusion order -- even when its effect also destroys the prosecution's case. This confounding conclusion, as the Court of Appeals observed in its 1992 decision in People v. Laing, 79 N.Y.2d 166 (1992), is based solely on the wording of subdivision 8 of section 450.20 of the Criminal Procedure Law, which confers on the prosecution the right to appeal pre-trial orders "suppressing" evidence but makes no mention of pre-trial orders "precluding" evidence.

This rule is untenable because it makes the appellate rights of the prosecution turn on a mere matter of form and prevents the prosecution from obtaining appellate reversal of wrongly entered orders barring the use at trial of critical evidence. To acquiesce in the current law necessarily reflects a judgment that it is somehow proper that criminal prosecutions be prevented entirely or compromised seriously by erroneous preclusion orders. The bill corrects this loophole by amending subdivision 8 of section 450.20 of the Criminal Procedure Law to expressly authorize appeals from pre-trial orders "precluding" evidence.

4. PROSECUTION APPEALS : The bill remedies a glaring defect revealed by the Court of Appeals in its 1991 decision in People v. Moquin, 77 N.Y .2d 449 (1991), a defect that defeats an important statutory appellate right of the people and permits a defendant to gain an unjust benefit.

IN MOQUIN , prior to trial the trial court dismissed a second-degree murder charge against the defendant on the ground that the evidence before the grand jury was insufficient, but left undisturbed various lesser charges in the indictment. The prosecution promptly exercised its right to appeal and the Appellate Division later ruled in its favor, concluding that the trial court had erroneously dismissed the murder charge. In the meantime, however, the defendant had pleaded guilty to the remaining lesser charges and had begun serving the sentences imposed on those charges. Because the plea to the lesser charges was valid and the defendant had begun serving her sentence, the Court of Appeals ruled that double jeopardy principles barred further prosecution of the murder charge. Thus, the prosecution's right to appeal the dismissal of the murder charge was thwarted, with the result that the defendant completely avoided prosecution for the murder charge because of the trial court's erroneous decision to dismiss the charge.

The bill provides a simple and effective means to prevent such a miscarriage of justice. It amends subdivision 6 of section 210.20 of the Criminal Procedure Law to provide for an automatic 30-day stay of the effectiveness of any order dismissing a count or counts of an indictment to give the prosecution an opportunity to take an appeal from the order of dismissal. (Under current law, such a stay is afforded only when the order dismisses a count or counts of an indictment charging murder in the first degree.) This 30-day stay effectively precludes a defendant from pleading guilty to just the counts (if any) that were not affected by the dismissal order. And if the people elect to appeal, subdivision 2 of section 460.40 of the Criminal Procedure Law, as also amended by the bill, further stays the effectiveness of the dismissal order.

5. IDENTIFICATION TESTIMONY : An infirmity in section 60.25 of the Criminal Procedure Law prevents juries from hearing important and reliable identification testimony. In a significant percentage of cases, the identity of the defendant as the person who committed the crime is a key issue at trial. After robberies, rapes, burglaries, assaults and numerous other crimes, victims frequently see their assailants again -- commonly in lineups or other police-arranged identification proceedings -- and identify them to police officers. By the time of trial, however, due to the passage of time (which may be a year or more after the crime) or changes in the defendant's appearance, the identifying witness may no longer recognize the defendant and thus may not identify him in court. Wisely recognizing this problem and the greater reliability of the identification which occurred closer in point of time to the crime, section 60.25 of the Criminal Procedure Law permits the witness to testify that the person he or she identified in the lineup or other proceeding was the same person who committed the crime, and permits the police officer to whom the witness declared the identification to testify that the defendant is the person that the witness previously identified.

The infirmity here is that read literally section 60.25 of the Criminal Procedure Law conditions the admissibility of testimony by the police officer that the defendant is the person previously identified by the witness on the witness being "unable ... to state" at the trial "on the basis of present recollection" whether the defendant is the person who committed the crime. Thus, courts have concluded that such testimony by police officers is inadmissible when by the time of trial the recollection of an identifying witness has faded, or the defendant's appearance has altered, to the point that the witness identifies in court someone other than the defendant. Thus, the testimony is excluded when it is most needed even though it is no less reliable. In other cases, the Court of Appeals has ruled that such testimony by police officers is inadmissible both when the witness testifies simply that he or she does not see in court the person who committed the crime, and when the witness refuses out of fear to make an identification in court.

The admissibility of important evidence of guilt in the form of such testimony by police officers should not depend on whether a witness who has previously made a reliable identification of the defendant recites at trial that he is "unable" to state whether or not the defendant is the criminal. As long as the witness testifies at trial that the person he previously identified was indeed the criminal, the police officer to whom the witness declared his identification of the defendant at the lineup or other identification proceeding should be permitted to testify that the defendant is in fact the person previously identified. To achieve this salutary result, the bill amends section 60.25 of the Criminal Procedure Law to permit such testimony by police officers when the witness "does not identify the defendant, is uncertain about his identification of the defendant or identifies a person other than the defendant" as the criminal.

Legislative history 2007-08

S.4140. 2005-06: S.3272, passed Senate in 2005. 2003-04: S.5563-A, passed Senate in 2004. 2001-02: S.5426-A, passed Senate both years. 1999-00: S.1912-A, passed Senate both years.

Fiscal implications

This bill will generate substantial savings, primarily by overturning appellate decisions that mandate unnecessary retrials.

Effective date

Immediately.