N.Y. Court Overturns Criminal Conviction Based on Plea Allocution

A New York appeals court last week vacated a criminal conviction that improperly relied on a plea from a co-defendant, citing for the first time the recent U.S. Supreme Court decision Crawford v. Washington as a basis for a reversal in New York state. In Crawford , the Supreme Court ruled that pleas introduced to describe elements of a crime were testimonial and could not be admitted unless those who made the statements were available for cross-examination.

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A New York appeals court last week vacated a criminal conviction that improperly relied on a plea from a co-defendant, citing for the first time a recent U.S. Supreme Court decision as a basis for a reversal in New York state. The unanimous ruling in People v. Woods, 3446, from the Appellate Division, 1st Department dismissed an indictment against Clarence Woods of the Bronx, who had been convicted of assault for his participation in a robbery three years ago. Woods has already served his entire sentence — one year in prison — but the record of his conviction will be sealed just as if it had been dismissed prior to trial. He was accused of aiding Calvin Rivers and Robert Hopkins in a knife-point robbery. Rivers pleaded guilty to first-degree robbery and was sentenced to five years in prison. Hopkins was prosecuted in a joint trial with Woods and convicted of robbery. He was sentenced to nine years in prison. In his plea allocution, Rivers said he held a knife to the victim after Woods punched him. Hopkins, Rivers said, stole money and keys from the victim’s pocket. Rivers declined to testify at the trial of his co-defendants, but prosecutors read his plea allocution to the jury, referring to Woods and Hopkins as “A” and “B” rather than by name. Bronx Acting Supreme Court Justice Caesar D. Cirigliano allowed the plea into evidence over the objection of Woods’ attorney. Last week, the 1st Department ruled that the jury should not have been allowed to hear Rivers’ plea, citing the U.S. Supreme Court’s March ruling in Crawford v. Washington, 124 S. Ct. 1354. In Crawford, the Court ruled that pleas introduced to describe elements of a crime were testimonial and could not be admitted unless those who made the statements were available for cross-examination. Using its “interest of justice” powers, the 1st Department found that the admission of Rivers’ plea could not be construed as harmless error, since it bolstered confusing testimony by the victim about Woods’ role in the crime. At one point in the trial, the victim had been confused as to whether Woods or Rivers held the knife during the robbery, until during a lunch break one day he saw photographs of Woods that were left on a prosecutor’s desk. Justice Cirigliano found that the prosecutor did not deliberately show the photos to the victim, and denied a motion for a mistrial based on misconduct. The victim, however, later testified that seeing the photos refreshed his memory of the crime. He then implicated Woods as the man who punched him, just as Rivers had said in his plea allocution. “It is plain that the admission of [Rivers'] plea allocution significantly strengthened the People’s case and we are not prepared to hold that it is beyond a reasonable doubt that [Woods] would have been found guilty without it,” the 1st Department wrote. In another ruling last week, People v. A.S. Goldmen, the 1st Department affirmed fraud convictions against three stockbrokers at A.S. Goldmen Inc., despite plea allocutions from other participants in the fraud that were improperly admitted under Crawford. The 1st Department said the error was “harmless” in light of “overwhelming evidence against these defendants.” Andrew Fine, head of the Legal Aid Society’s Court of Appeals practice, said Woods presented a clear case of the problems the U.S. Supreme Court identified in Crawford. “I don’t think the court really had any choice,” said Fine, whose office represented Woods on appeal. “The complainant was a very problematic witness.” Though experts have said it is unlikely, New York courts may yet determine that other types of evidence, such as statements made to 911 emergency operators, are testimonial and hence unavailable at trial unless the statement can be challenged through cross-examination. One trial court has decided as much for one 911 tape, but others have reached opposite conclusions. Anthony J. Girese, counsel to Bronx District Attorney Robert T. Johnson, said the 1st Department’s ruling in Woods touched on the clearest implication of Crawford: that unchallenged plea allocutions, which are not as common in New York state courts as in federal courts, cannot be used in prosecutions. For state prosecutors, he said, questions remain about the status of 911 tapes and whether Crawford will be retroactive to defendants who have exhausted their direct appeals. Cheryl P. Williams of Legal Aid represented Woods. Kristin L. Vassallo represented the Bronx district attorney’s office. Justices Peter Tom, David B. Saxe, Betty Weinberg Ellerin and Alfred D. Lerner concurred on the Woods decision. Presiding Justice John T. Buckley and Justices Eugene L. Nardelli, Richard T. Andrias, Milton L. Williams and Luis Gonzalez concurred on the A.S. Goldmen decision.

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