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People v. Furey 2011 NY SLip Op 09000

Decided New York Court of Appeals December 15, 2011

See also Dismissing a Prospective Juror and

Limiting Time For Jury Selection May Be Reversible Error and

Judge’s Duty To Ask Follow Up Questions During Jury Selection

Issue: Whether a prospective juror that knew several witnesses could be excluded for cause even though the prospective juror stated that she could be fair and give the testimony of the people she knew no greater weight than any other witness.

Holding: County Court abused its discretion as a matter of law when it denied defendant’s for-cause challenge to a prospective juror who had personal and professional relationships with several of the witnesses expected to testify at defendant’s trial.

Facts: Furey was charged with committing burglary, kidnapping and other offenses.     The wife of a captain on the investigating police force reported to County Court for jury duty and was picked to be on the panel of prospective jurors in this case.

During voir dire, Mrs. Comerford (Captain Comerford’s wife) was interviewed as a prospective juror. She acknowledged being familiar with some of the individuals who were listed as possible prosecution witnesses since they worked with her husband in the Oswego Police Department. With regard to two specific police witnesses, Mrs. Comerford informed the court that she knew them both professionally and personally.  County Court inquired whether Mrs. Comerford could consider the two officers’ “testimony in the same fashion and in the same light as any other witness or would you give their testimony greater or lesser consideration or subject their testimony to different tests of credibility because you know those witnesses?” She replied “I believe I can be fair” and agreed that she “would look at their testimony in the same fashion.”  In total, Mrs. Comerford was acquainted with eight of the 14 witnesses identified by the People.

The defense moved to dismiss Mrs. Comerford for cause. The People objected, relying on her statements that she would not give preferential treatment to the testimony of the witnesses she knew. County Court denied the for-cause challenge, explaining that Mrs. Comerford “indicated that she knows nothing about the facts and circumstances of this case and through her husband she knows who many of the People’s witnesses are potentially and she would treat them the same as any other witnesses.” Defendant then used a peremptory challenge to remove Mrs. Comerford from the panel and subsequently exhausted his allotment of peremptories.

Defendant was convicted of second-degree kidnapping, second-degree burglary and other offenses. He was sentenced to an aggregate term of 5½ years imprisonment and five years of postrelease supervision.

Legal Analysis: A prospective juror may be challenged for cause on several grounds, one of which is a preexisting relationship with a potential witness that “is likely to preclude [the prospective juror] from rendering an impartial verdict”. This is referred to colloquially as an “implied bias” and requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial.

Such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath. “[T]he risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” (Branch, 46 NY2d at 651) and create the perception that the accused might not receive a fair trial before an impartial finder of fact. For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality”

The frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary.

We conclude that Mrs. Comerford’s familiarity with numerous witnesses satisfied the implied bias standard under CPL 270.20 (1) (c), necessitating her removal for cause. Mrs. Comerford forthrightly disclosed that she knew eight of the witnesses  who were to testify at trial — more than half of the People’s potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although Mrs. Comerford offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial. It was therefore an abuse of discretion as a matter of law to deny defendant’s challenge for cause.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Gonzalez v. Thaler 132 S.Ct. 641

Decided by U. S. Supreme Court January 10, 2012

See also Text of Habeas Statutes for State and Federal Prisoners

Issues:(1) Whether a Judge’s statement of a constitutional issue on the Certificate of Appealability (COA) is a jurisdictional requirement; (2) When does a State judgment become final for purposes of the statute of limitations under AEDPA.

Holding: This case interprets two provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The first, 28 U.S.C. § 2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to appeal a federal district court’s final order in a habeas proceeding. § 2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” § 2253(c)(2), and “shall indicate which specific issue” satisfies that showing. § 2253(c)(3). We hold that § 2253(c)(3) is not a jurisdictional requirement. Accordingly, a judge’s failure to “indicate” the requisite constitutional issue in a COA does not deprive a court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.

The second provision, 28 U.S.C. § 2244(d)(1)(A), establishes a 1–year limitations period for state prisoners to file federal habeas petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” We hold that, for a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” on the date that the time for seeking such review expires.

Facts: After the intermediate state appellate court affirmed his state-court conviction, petitionerGonzalez allowed his time for seeking discretionary review with the State’s highest court for criminal appeals to expire. Roughly six weeks later, the intermediate state appellate court issued its mandate. When Gonzalez subsequently sought federal habeas relief, the District Court dismissed Gonzalez’s petition as time barred by the 1–year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Under AEDPA, a habeas petitioner must obtain a certificate of appealability (COA) to appeal a district court’s final order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” § 2253(c)(2), and “shall indicate which specific issue” satisfies that showing, § 2253(c)(3). A Fifth Circuit judge granted Gonzalez a COA on the question whether his petition was timely. The issued COA, however, failed to “indicate” a constitutional issue.

The Fifth Circuit affirmed, holding that Gonzalez’s petition was untimely because the limitations period begins to run for petitioners who fail to appeal to a State’s highest court when the time for seeking further direct review in the state court expires. The Fifth Circuit did not mention, and the State did not raise, the § 2253(c)(3) defect. When Gonzalezpetitioned this Court for review, the State argued for the first time that the Fifth Circuit lacked jurisdiction to adjudicate Gonzalez’s appeal based on the § 2253(c)(3) defect.

Legal Analysis: Section 2253, as amended by AEDPA, governs appeals in habeas corpus proceedings. The first subsection, § 2253(a), is a general grant of jurisdiction, providing that district courts’ final orders in habeas proceedings “shall be subject to review, on appeal, by the court of appeals.” 28 U.S.C. § 2253(a). The second, § 2253(b), limits jurisdiction over a particular type of final order. See § 2253(b) (“There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant [of] remov[al] …”). This case concerns the third, § 2253(c), which provides:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by § 2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power to adjudicate Gonzalez’sappeal. We hold that it did not.

A rule is jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.  But if “Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional.  That*649 clear-statement principle makes particular sense in this statute, as we consider—against the backdrop of § 2253(a)’s clear jurisdictional grant to the courts of appeals and § 2253(b)’s clear limit on that grant—the extent to which Congress intended the COA process outlined in § 2253(c) to further limit the courts of appeals’ jurisdiction over habeas appeals.

 the only “clear” jurisdictional language in § 2253(c) appears in § 2253(c)(1). 2253(c)(1)’s plain terms—“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals”—establish that “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.  §2253(c)(1) is therefore jurisdictional.

§ 2253(c)(2) is nonjurisdictional.⁴ That is for good reason.Section 2253(c)(2) speaks only to when a COA may issue—upon “a substantial showing of the denial of a constitutional right.” It does not contain § 2253(c)(1)’s jurisdictional terms.

W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally …”). And it would be passing strange if, after a COA has issued, each court of appeals adjudicating an appeal were dutybound to revisit the threshold showing and gauge its “substantial[ity]” to verify its jurisdiction. That inquiry would be largely duplicative of the merits question before the court.

It follows that § 2253(c)(3) is nonjurisdictional as well. Like § 2253(c)(2), it too reflects a threshold condition for the issuance of a COA—the COA’s indication of “which specific issue or issues satisfy the showing required by paragraph (2).” It too “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [appeals] courts.

The unambiguous jurisdictional terms of §§ 2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended § 2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictional, while a COA’s failure to indicate an issue is not. A defective COA is not equivalent to the lack of any COA.

Congress placed the power to issue COAs in the hands of a “circuit justice or judge.  It would seem somewhat counterintuitive to render a panel of court of appeals judges powerless to act on appeals based on COAs that Congress specifically empowered one court of appeals judge to grant.

THE STATUTE OF LIMITATIONS FOR HABEAS CORPUS PETITIONS UNDER AEDPA

Title 28 U.S.C. § 2244(d)(1) provides:

A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”

This case concerns the first of those dates: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). The question before us is when the judgment becomes “final” if a petitioner does not appeal to a State’s highest court.

In Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), we addressed AEDPA’s statute of limitations for federal prisoners seeking postconviction relief. See § 2255(f)(1)(2006 ed., Supp. III) (beginning 1–year period of limitations from “the date on which the judgment of conviction becomes final”). We held that the federal judgment becomes final “when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Id., at 527, 123 S.Ct. 1072. In so holding, we rejected the argument that, if a petitioner declines to seek certiorari, the limitations period “starts to run on the date the court of appeals issues its mandate.” Id., at 529, 123 S.Ct. 1072.

THE RULE: WHEN DOES DIRECT REVIEW OF A STATE CASE EXPIRE 

The text of § 2244(d)(1)(A), which marks finality as of “the conclusion of direct review or the expiration of the time for seeking such review,” consists of two prongs. Each prong—the “conclusion of direct review” and the “expiration of the time for seeking such review”—relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the “conclusion of direct review”—when this Court affirms a conviction on the merits or denies a petition for certiorari.

For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing *654 direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because Gonzalez did not appeal to the State’s highest court, his judgment became final when his time for seeking review with the State’s highest court expired.

People v. Bradshaw 2011 NY Slip Op 08963

Decided New York Court of Appeals December 13, 2011

See also Right to Appeal, Even When Defendant Has Been Deported

Issue: Whether the defendant made a knowing, intelligent and voluntary waiver of the right to an appeal.

Holding: waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily”. We hold that the record fails to establish that defendant validly waived his right to appeal.

 Facts: Kings County grand jury indicted defendant for rape in the first degree.  Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an “incapacitated person.”

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case.

 Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health.  defendant was diagnosed with “Adjustment Disorder with Anxiety and depressed mood.” he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant’s psychiatrists determined that he was now competent to return to court, finding improvement in defendant’s cognitive function.

Defendant’s ability to proceed with his case, however, proved short-lived.  defendant submitted to a second article 730 examination and was again found unfit to proceed. defendant’s treating psychiatrists at Mid-Hudson found him fit to proceed within a month of Supreme Court’s commitment order, defendant’s case did not move forward in a customary fashion.

Defendant finally returned to court in April 2006.  Supreme Court ordered a third article 730 examination of defendant on May 30, 2006.

Legal Analysis: A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v Lopez, 6 NY3d 248, 256 [2006];  An appellate waiver meets this standard when a defendant has “a full appreciation of the consequences” of such waiver.  To that end, a defendant must comprehend that an appeal waiver “is separate and distinct from those rights automatically forfeited upon a plea of guilty”

It is the trial court’s responsibility, “in the first instance,” to determine “whether a particular appellate waiver satisfies these requirements”  After all, the trial court “is in the best position to assess all of the relevant factors” (id.) “surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused”.

Though a trial court need not engage in any particular litany” or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court “must make certain that a defendant’s understanding” of the waiver, along with the other “terms and conditions of a plea agreement is evident on the face of the record” [a valid appeal waiver "cannot be inferred from a silent record"]).

Although the record before us here is not as bleak as the record in DeSimone, we likewise conclude it does not sufficiently demonstrate that defendant validly waived his right to appeal because the trial court failed to ensure that defendant grasped the minimal information pertaining to the appeal waiver it provided during the plea colloquy.

Following Supreme Court’s description of the appeal waiver, it questioned whether defendant comprehended the court’s remarks. Defendant answered by simply asking about the mandatory fees associated with his guilty plea. At this juncture, or at least prior to the completion of the plea proceeding, Supreme Court should have assured itself that defendant adequately understood the right that he was foregoing.

The absence of this inquiry is particularly troubling given defendant’s background and history of mental illness.  These circumstances, combined with the knowledge that defendant was a first time felony offender who had been ordered to submit to article 730 examinations in two other counties, should have alerted the trial court not only to give defendant a thorough explanation of the appeal waiver but also to make sure that defendant fully grasped the nature of this fundamental right that he was foregoing

Here, by contrast, defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was foregoing. Notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal

 We advance no new rule today. Rather, we are simply applying our sound decisions — as we must — in Seaberg, Callahan, DeSimone, Lopez and Ramos to the particular circumstances of this case. And this precedent makes clear that “to facilitate appellate review,” it is the trial court’s obligation “to ensure” that a defendant’s understanding of the appeal waiver is “made apparent on the face of the record”

People v. Davis 2011 Slip Op 07474

Decided October 25, 2011 New York Court of Appeals 

See other cases on Grand Jury and Prosecutorial Misconduct or Contact Us if you have a specific question.

Issue: whether the People’s withdrawal of their case from the first grand jury presentation due to witness unavailability constituted the functional equivalent of a dismissal pursuant to CPL 190.75.

Holding: The Court of Appeals concluded that it did not because no charges were brought against Davis in the first Grand Jury.

Facts: Assault charges were filed  stemming from an altercation at a nightclub  instigated by Davis and joined in by McIntosh.  McIntosh was arrested shortly after the incident; Davis was not apprehended until some time later.

Before police located and arrested Davis, the People began presenting evidence to a grand jury. Before calling the complainant, the People advised the jury that they were presenting evidence against McIntosh only and that “[t]his will be a continued case,” meaning that not all evidence would be submitted in one session.

Walker then testified that Davis, an acquaintance of hers, assaulted her. She further testified that McIntosh, also an acquaintance, joined in the assault. Ten days later, on June 30, 2006, the People advised the grand jury that they were withdrawing the case due to witness unavailability and the fact that it was this grand jury’s last day.

Four months later, the People presented evidence to another grand jury, this time naming both Davis and McIntosh as targets, and asking it to consider the same charges against both defendants.

Supreme Court denied defendants’ motion to dismiss the indictment on the ground that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting the case to a second grand jury.  Davis and McIntosh brought separate appeals, claiming that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting their cases to a second grand jury.

Legal Analysis: As relevant to these cases, CPL 190.60 (4) provides that once a grand jury hears and examines the evidence, it may among other options, dismiss the charge before it, as provided in section 190.75.

A grand jury must dismiss a charge lodged against a designated person where the evidence before it is legally insufficient to demonstrate that such person committed the crime charged or any other offense, or where it is not satisfied that there is reasonable cause to believe such person committed such crime or any other offense.  In such a case, the dismissed charges may be re-presented to another grand jury but only after the People obtain court authorization (see CPL 190.75 [3]). This rule was enacted to “curb abuses that resulted from the common-law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment”

In Wilkins, we held that the People’s pre-vote withdrawal of charges from the grand jury, after the presentation was complete but before the grand jury was charged on the law, was the functional equivalent of a dismissal for purposes of CPL 190.75 (3), requiring the People to obtain court authorization before re-submission. There we held that the essential issue in deciding whether the People’s withdrawal from the grand jury should be treated as a de facto dismissal was “the extent to which the Grand Jury considered the evidence and the charge” (68 NY2d at 274).

The People’s first presentation in Wilkins ”was, as far as the prosecution was concerned, complete,” and we concluded that because all of the witnesses had testified and the only thing left for the People to do was charge the jury on the law, the People’s “unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal.”

Wilkins applies in only “limited circumstances” where the People’s withdrawal of a case from the grand jury “is fundamentally inconsistent with the objectives underlying CPL 190.75″

In Davis, the order of the Appellate Division should be reversed, because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. Moreover, the People advised the grand jury that it was to consider the evidence only against McIntosh. Since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn

People v. Santiago 2011 NY Slip Op 07303

Decided New York Court of Appeals October 20, 2011

See also The Scope of Expert Witness Testimony

Issue: whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary.

Holding: We conclude that they did not, and that it was error to exclude much of the proposed testimony.

Facts: January 10, 2003, a woman waiting for a train at a Manhattan subway station was attacked by a stranger.  the man began assaulting her. She closed her eyes while raising her hands to protect herself. She could not tell whether her assailant had a weapon. After about ten seconds, the attack stopped, and the assailant fled.

The victim was assisted by workers at the station, who, along with the police, searched fruitlessly for the assailant. An ambulance transported her to a hospital where she was treated. At the hospital, the victim gave detectives a description of her attacker, a Hispanic male, late 20s or early 30s, five feet, eight inches to five feet, nine inches tall, with a mustache and a goatee.

The man was wearing a winter jacket, a hooded sweatshirt or “hoodie,” jeans, and a “winter hat.” The jacket, hoodie and hat together covered the assailant’s head in such a way that his face was concealed “from the middle of his top lip, down, and from the top of his eyebrows up.” The victim could not see her assailant’s hair, except for his eyebrows and mustache. On the day after the attack, the victim was interviewed by a police artist who created a sketch of the perpetrator.

Edwin Rios, who had seen the assault, described the assailant as a Hispanic male in his mid- to late 20s, with a goatee, wearing a hood. The assailant had passed Rios after the attack, carrying a knife. Pablo Alarcon, who had noticed the assailant beforehand because the man’s facial expression made Alarcon nervous. After the attack, Alarcon saw the assailant put a knife away as he fled. Alarcon also described the perpetrator as a Hispanic male with a goatee.

Nine days later,  January 19, 2003, a plain-clothes police officer patrolling a subway station in Brooklyn noticed a man in a winter jacket, jeans and winter cap selling Metrocard “swipes.” Later, the officer saw the same man engaged in the same activity at the next stop. The officer arrested the man, defendant Edwin Santiago, and his photograph made its way to the detective squad investigating the January 10 attack.

An array comprising photographs of six men and including defendant’s arrest photograph was shown to Alarcon on January 22. He claimed not to recognize defendant or any of the other men in the array. The victim viewed the photographic array on January 24. She testified that, when she saw the photograph of Santiago, it felt as if her “heart stopped and [she] got really scared and [] said that that was him.”

Santiago, who had been released, was rearrested the following day, at a shelter for the homeless. A photograph taken after the second arrest shows Santiago with a dark mustache and goatee.

On January 26, the victim identified Santiago in a six-person line-up. According to the victim, when she saw defendant, she felt “really scared” — it was, once again, as if her “heart stopped” and she “knew it was him.”  Alarcon viewed the line-up. As he later explained at defendant’s suppression hearing and trial, he recognized defendant as the perpetrator of the attack with an “eighty percent” feeling of confidence in his identification, but, because he was concerned about his immigration status, he told the police that he did not recognize anyone.

No physical evidence linked defendant to the assault. As it appeared at the time of the indictment, the People’s case would be built entirely on the victim’s identification. Attempting to secure expert testimony from Professor Steven Penrod on the psychological factors affecting the accuracy of eyewitness identification, Santiago filed a motion in limine on June 26.

Supreme Court granted defendant’s motion to the extent of ordering a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), to determine whether the principles Professor Penrod proposed to describe in his testimony had gained general acceptance in their scientific fields. During subsequent motion practice, defendant gave provisional summaries of Penrod’s expected testimony. He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition:  

–exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator);

–cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians);

–weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker);

–lineup fairness (similarity of fillers to the suspect increases identification accuracy);

–lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification);

–forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time);

–postevent information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later);

–wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded);

–unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts);

–simultaneous versus sequential lineups(witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups);

–eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and

–confidence malleability(eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

Defendant’s case was transferred to a different Supreme Court Justice, defendant renewed his motion to admit expert testimony. On December 19, 2003, Supreme Court denied defendant’s motion, without holding a Frye hearing.

Following a suppression hearing, at which his motions were denied, Santiago was tried before a jury. The victim identified Santiago at the trial, insisting that there was no doubt in her mind that he was her assailant. Rios and Alarcon also identified defendant; the latter repeated that he was only “eighty percent sure” of his identification.

Defense counsel’s summation stressed that certainty of identification was not equivalent to accuracy of identification. As promised, Supreme Court’s final charge told the jury to “[k]eep in mind that the witness’s confidence or lack of confidence in his or her testimony is not necessarily indicative of accuracy of identification.”

The jury found Santiago guilty of assault in the first degree. Supreme Court convicted him accordingly, sentencing him to 25 years imprisonment, to be followed by 5 years postrelease supervision.

Legal Analysis: A trial court may, in its discretion, admit, limit, or deny the testimony of an expert on the reliability of eyewitness identification, weighing a request to introduce such expert testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (People v Lee, 96 NY2d 157, 163 [2001]). Because 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 . . . in appropriate cases” to grant defendants’ motions to admit expert testimony on this subject

In People v LeGrand (8 NY3d 449 [2007]), established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide 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, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id.).

If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary we ruled that there was insufficient evidence to confirm that the principles underlying the expert’s testimony on weapon focus were generally accepted by the relevant scientific community, so that this testimony was properly excluded

People v Allen (13 NY3d 251 [2009]).

In Abney, where “it was clear that there was no evidence other than [the victim's] identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics” (13 NY3d at 268), we held that the trial court abused its discretion in failing to allow expert testimony on the subject of witness confidence and in refusing to hold a Frye hearing with regard to the expert’s proposed testimony on the effect of event stress, exposure time, event violence and weapon focus, and cross-racial identification.

In Allen, on the other hand, the case against defendant did not depend exclusively on one eyewitness’s identification, and we ruled that the trial court acted within its discretion. Whether a victim’s or other eyewitness’s identification of a defendant is sufficiently corroborated by other eyewitness identifications, so that the trial court need not proceed to the second stage of theLeGrand analysis, is dependent on the circumstances of the case.  However, even when the evidence that a defendant was the perpetrator of a crime consists entirely of eyewitness identifications, the case is not necessarily one in which “there is little or no corroborating evidence” (8 NY3d at 452).

Thus, in Allen, we held that the second eyewitness’s identification of the defendant constituted evidence corroborating an eyewitness identification (13 NY3d at 269). We reached that conclusion because the corroborating identification possessed strong indicia of accuracy. In particular, the defendant in Allen was known to the second eyewitness, who recognized him during the robbery

In the present case, when Supreme Court denied Santiago’s in limine motion in December 2003, the evidence disclosed by the People consisted of the victim’s identifications of him in a photographic array and a lineup. At that time, as Supreme Court noted, the case turned on the accuracy of a single eyewitness identification and there was no corroborating evidence connecting the defendant to the crime. The issue therefore becomes whether the four factors enumerated in the second stage of the LeGrand analysis apply to the proposed testimony.

Supreme Court abused its discretion when it refused to allow testimony on studies showing that eyewitness confidence is a poor predictor of identification accuracy and on studies regarding confidence malleability.  the principles concerning confidence about which the expert was to testify are generally accepted within the relevant scientific community, and are beyond the ken of the average juror For similar reasons, Supreme Court abused its discretion when it excluded expert testimony on the effects of postevent information on eyewitness memory.

Given that the People did not dispute that the victim is a non-Hispanic Caucasian, the proposed testimony on inaccuracy of identifications of Hispanic people by non-Hispanic Caucasians appears relevant, and is beyond the ken of the average juror.

A separate question is whether Supreme Court abused its discretion when, after the defense had rested, the court denied defendant’s renewed request to call an expert witness on eyewitness identification. By this time, the People had introduced evidence of Alarcon’s and Rios’s identifications of defendants, in addition to the victim’s.