DECISION AND ORDER By motion filed on June 14, 2022, the defendant moved pursuant to CPL §440.47 to vacate the sentence imposed by the Court on June 17, 2019, and impose a new sentence in accordance with PL §60.12. A hearing was ordered pursuant to CPL §440.47(e) to aid in the Court’s consideration of the defendant’s motion. The hearing commenced with testimony of the defendant’s expert witness, Phillip Guttman, a therapist and forensic social worker, on July 28, 2023. On November 16, 2023, and November 17, 2023, the Court heard testimony from another defense expert witness, Rachel Golden, a therapist and licensed psychologist. The case was subsequently adjourned for the Court to make a determination as to the defendant’s request to allow witnesses to testify virtually at the next scheduled hearing date. The People oppose this request. As it relates to virtual testimony of witnesses, specifically real-time video testimony, with the exception of CPL §182.30, which provides limitations on electronic appearances by defendants, the Court is not aware of any statute that explicitly precludes the admission of real-time video testimony, nor any statute that lists all instances where live video testimony is permitted when a witness is unavailable. While the Legislature has primary authority to regulate court procedures, “the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute” (People v. Ricardo B., 73 NY2d 228, 232 [1989]; NY Const, art VI §30). Via Judiciary Law §2-b, the Legislature has authorized the courts to utilize innovative procedures where “necessary to carry into effect the powers and jurisdiction possessed” [by the court]. While “virtual courtrooms can provide efficient, accessible forums, they are not the same as in-person proceedings and may not be a viable or appropriate substitute in some situations” (Memorandum from Honorable Joseph A. Zayas, the Chief Administrative Judge, and the Honorable Norman St. George, First Deputy Chief Administrative Judge [November 26, 2023](on file with author)). Therefore, the decision to allow virtual testimony requires a “case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” and “the decision to excuse a witness’s presence in the courtroom should be weighed carefully” (People v. Wrotten, 14 NY3d 33, 40 [2009](complainant permitted to testify via live video because at the time he was “85 years old, frail, unsteady on his feet, and with a history of coronary disease — [and] could not travel to New York without endangering his health”); see also People v. Giurdanella, 144 AD3d 479 [1st Dept, 2016](“People made the requisite showing that it was necessary for the complainant to testify by videoconferencing, given the highly unusual circumstances that the complainant had returned to his native country, whose government then prevented him from leaving, after defendant’s trial had already commenced”)). In January 2023, the Pandemic Practice’s Working Group (hereinafter “PPWG”), an initiative of The Commission to Reimagine the Future of New York’s Courts, published a report entitled New York Courts’ Response to the Pandemic: Observations, Perspectives, and Recommendations1. The report outlines the guidelines developed by PPWG aimed to distinguish between proceedings that generally should be conducted in-person and those that lend themselves to being conducted virtually2. Specifically, the guidelines recommend that arguments of motions on felonies, evidentiary hearings, and sentences on felonies, should be conducted in-person (Report at app. C). The report also provides a non-exclusive list of factors for Judges to consider when determining if a proceeding generally recommended to be conducted in-person can be handled virtually. These factors include: where all parties consent to proceeding virtually; where the health of one of the parties would be jeopardized by an in-person proceedings; where a disability of one of the parties “presents a serious impediment to an in-person appearance;” where an in-person appearance would “present a serious hardship” to one of the parties; and where an in-person appearance would “present serious safety concerns” to one or more of the parties (Id.). Here, the defendant requests to call multiple witnesses, currently residing in Ohio and Georgia, via live video, arguing that it “would be extremely costly and burdensome for [their witnesses],” some of whom “have very young children” or “medical considerations that make this type of long-distance travel impracticable” (Email from Dana Wolfe, The Legal Aid Society, to the Court [July 5, 2023, 2:41 EST](on file with author)); Letter from Dana Wolfe, The Legal Aid Society, to the Court [Dec. 1, 2023](on file with author)). These witnesses are friends and family members of the defendant, who would “testify about abuse that they personally witnessed, as well as changes in [the defendant] throughout his abusive relationship and leading up to his arrest” (Email from Dana Wolfe, The Legal Aid Society). The defense further argues that though they have already provided sworn statements from these witnesses, these statements “were filed in order to satisfy a procedural requirement and entitle [the defendant] to an evidentiary hearing…[and] are not an adequate substitute for the information that these witnesses could provide through oral testimony” (Letter from Dana Wolfe, The Legal Aid Society; see CPL §440.47[2][c](the defendant is required to include in the application “at least” two pieces of evidence that corroborate their claim)). The Court disagrees. While the defendant “may as a matter of right call and examine witnesses,” the right to present witnesses “is not absolute and may yield to policy considerations” (People v. Chipp, 75 NY2d 327, 337 [1990]; CPL §60.15). Under the particular circumstances of this case, a post felony conviction evidentiary hearing where the statute specifically permits reliable hearsay testimony (PL §60.12[1]), and taking into consideration all of the factors and recommendations discussed supra, including the People’s opposition to the application, the Court finds that the defense has failed to establish an exceptional circumstance or necessity to warrant this exceptional procedure.3 Therefore, the defense request to present their witnesses via live video is denied. The foregoing constitutes the Decision and Order of the Court. Dated: December 20, 2023
