Barry Kamins

As the DiFiore court enters its third year, court watchers will undoubtedly be assessing whether the court has moved in certain directions as they analyze the ideological composition of the court and the judges’ voting patterns in criminal cases. Several recent decisions clearly signal the court’s continuing commitment to protecting defendants from wrongful convictions and protecting constitutional rights in criminal cases.

In People v. Boone, 2017 N.Y. Slip Op 08713, Dec. 14, 2017, Judge Eugene Fahey, writing for the majority, held not once—but three times—that the risk of wrongful convictions involving cross-racial identifications “demands a new approach.” People v. Boone, 2017 N.Y. Slip Op 08713 at 1, 9. As Judge Fahey explained, there has been general scientific acceptance of the “cross-race effect,” i.e., that people have significantly greater difficulty accurately identifying members of other races than members of their own race. The problem is that there is a significant disparity between what science has proven and what uninstructed jurors believe. Several studies have established that many jurors do not understand that a cross-racial identification may be less reliable than an identification in which the defendant and an identifying witness are of the same race.

As a result, the court was concerned that the cross-race effect, if not identified for jurors, could lead to mistaken identification in criminal cases, the leading cause of wrongful convictions in the United States. As Judge Fahey suggested in oral argument, the time had come for the court, as a policy matter, to draw attention to the cross-race effect so that jurors would be aware of this factor. The court concluded that the way to accomplish that would be through a court’s instructions to a jury.

In Boone, the defendant, who was black, was found guilty based entirely on the testimony of a single white witness who had identified the defendant as the person who had robbed him. The court held that, in a case in which a witness’ identification of the defendant is at issue, and the witness and the defendant appear to be of different races, a trial court is required, upon request, to instruct the jury in its final instructions about the cross-race effect. The charge must be given even if the defense has not offered any expert testimony on the cross-race effect nor cross-examined the identifying witness on the issue of cross-racial identification.

The charge must instruct the jury that it should consider whether there is a difference in race between the defendant and the witness who identified the defendant. If so, the jury should be instructed that it should consider (1) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (2) whether the difference in race affected the accuracy of the witness’s identification.

The jury instruction would not be required in cases where there is no dispute about the identity of the perpetrator or where the charge is not requested by either party. Finally, the court did not opine on whether this new rule should be applied retroactively to cases in which the trial court declined to provide a cross-racial identification charge.

Judge Michael Garcia concurred in the result but disagreed with the majority’s reasoning. In a separate opinion, he opined that the new rule is not workable and would create confusion among trial courts by, on the one hand, vaguely suggesting that a trial court retains some undefined discretion to deny the charge and, on the other hand, implementing a mandatory rule. In Judge Garcia’s opinion, trial courts should retain discretion to deliver a cross-racial charge.

Boone may effect criminal justice reform on a national level as three quarters of state appellate courts around the country have not yet addressed this issue. State v. Allen, 176 Wash. 2d 611 (2013); ABA Report104D, Criminal Justice Section (2008). Cf. People v Henderson, 208 NJ 208 (2011) (authorizing a jury instruction containing factors beyond the cross-racial effect). The New York Court of Appeals has long been regarded as one of the preeminent state high courts and, by adopting this position on the cross-racial effect, other states around the country may do the same.

Aside from guarding against wrongful convictions, the court has also demonstrated a willingness to protect basic constitutional rights. For example, in People v. John, 27 N.Y.3d 294 (2016), the court reversed the conviction, holding that there had been a violation of the defendant’s Sixth Amendment right of confrontation. In John, the crucial evidence linking the defendant to a handgun found in a box in a basement, was a DNA analysis performed by the New York City Office of the Chief Medical Examiner (OCME).

Six OCME analysts conducted DNA testing on swabs taken from the handgun; the analysis involved four steps resulting in a numerical profile to be used for comparison. An oral swab was taken from the defendant and eight OCME analysts prepared a profile from him. Another analyst—Melissa Huyck—compared the two profiles and found a match. At trial, the prosecutor introduced both profiles as a business record and Huyck was called as a witness to give her opinion as to the match.

The court held that the introduction of the profiles violated the rule in Crawford v. Washington, 541 U.S. 36 (2004), that “testimonial” statements may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused had a prior opportunity to confront that witness. Forensic evidence reports, including DNA analyses, fall with the Crawford rule.

In determining whether specific evidence is testimonial hearsay, the court adhered to the “primary purpose” test, as previously defined by the U.S. Supreme Court. In applying that test the court will consider (1) whether the statement was prepared in a manner resembling ex parte examination and (2) whether the statement accuses the defendant of criminal wrongdoing. After considering these factors, and taking into account the motive for making the statement, the court concluded that the DNA reports were testimonial in nature.

In applying the primary purpose test and reconciling two recent Supreme Court decisions (Bullcoming v. New Mexico, 564 U.S. 647 and Williams v. Illinois, 132 S. Ct. 2221) the court concluded that the admission of the DNA reports would violate the defendant’s right of confrontation. In the court’s view, Huyck had acted as a “surrogate witness,” reporting data compiled and analyzed by other lab employees without performing any independent expert analysis of her own. Thus, the prosecution had not produced a single witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile from the gun or the defendant; all of these analysts thus remained insulated from cross-examination.

In balancing the defendant’s right of confrontation with placing an undue burden on the OCME laboratory, the court limited the number of analysts who would be necessary to testify at trial. A single analyst, particularly the one who performed, witnessed or supervised the creation of the DNA profile, would satisfy the requirements of Crawford under the court’s view. Thus, the court rejected an “all analysts’ rule” in favor of one analyst with the requisite personal knowledge.

John is significant on a national level because, unlike most other states, New York has adopted a stricter test for determining a confrontation violation. In rejecting “surrogate testimony” and requiring the testimony of an analyst with the requisite personal knowledge, the court has set a higher standard for other high courts to follow.

In his dissent, Judge Garcia opined that the majority’s opinion plunged the court into greater confusion by placing an undue burden on the OCME laboratory, requiring multiple technicians to appear in court. In addition, Judge Garcia applied a narrower view of testimonial evidence, concluding that the DNA profiles were not testimonial in nature and that their admission did not violate the defendant’s Sixth Amendment rights.

In People v. Smith, 2017 N.Y. Slip Op 08798, Dec. 19, 2017, the court reversed a conviction based on the denial of defendant’s right to counsel under the Sixth Amendment and New York State Constitution. In a narrow decision, the court focused on whether the defendant had been denied counsel at a pretrial proceeding concerning the taking of a buccal DNA swab and whether this constituted a critical stage of the proceedings.

After the prosecution had filed its motion to compel a DNA test and served it on retained counsel, the trial court, in defendant’s absence, granted counsel’s motion to be relieved from representing the defendant. After counsel was relieved and the defendant was later produced by the Department of Corrections, the court conducted a substantive colloquy with the defendant. During this exchange, the court sought, but was unable to obtain, the defendant’s consent to the application and the defendant made a request for new counsel.

Ultimately, the trial court granted the motion to compel the defendant to submit to a buccal swab based on the “putative consent” it inferred from retained counsel’s failure to reply to the motion. The defendant later pled guilty.

In reversing the defendant’s conviction, the Court of Appeals held that the pretrial proceedings concerning the DNA test were “critical” within the meaning of the law. The violation of the defendant’s right to counsel resulted in his being denied the opportunity to confer with counsel regarding a potential challenge to the taking of inculpatory DNA evidence. As the Appellate Division had noted in its earlier decision, had the trial court appointed new counsel, he or she could have sought preclusion on the ground that the prosecutor had failed to show good cause for a motion filed seven months after the defendant’s arraignment.

In his dissent, Judge Garcia opined that the motion practice had been completed while the defendant was still represented by his retained counsel and that the later colloquy (during which the defendant was unrepresented) was not a critical stage within the meaning of the Sixth Amendment. Thus, while the better course would have been for the trial court to adjourn the proceedings until new counsel was appointed, he held that there had been no violation of the defendant’s constitutional right to counsel.

Finally, in People v. Bridgeforth, 28 N.Y.3d 567 (2016), in what Judge Garcia viewed as a “monumental ruling” (at 580), New York became the first state to hold that skin color is a cognizable class for Batson challenges. The court held that, under this state’s Constitution and Civil Rights Law, color is a classification upon which a challenge may be made to a prosecutor’s use of a peremptory strike. The court took the view that distinguishing color as a separate class served Batson’s purpose of protecting a defendant’s right to a trial by a jury of one’s peers.

The New York Court of Appeals has a long tradition of independent decision making. Over the years, for example, the court has expressed its “special solicitude” for the right to counsel as guaranteed by the State Constitution (People v. Cunningham, 49 N.Y.2d 203, at 207). More recently, in a number of cases, the court held that the state constitutional protection against unreasonable searches and seizures affords greater protection than the Fourth Amendment. In the cases mentioned above, the DiFiore court continues this tradition of independent decision making with respect to the constitutional rights of defendants.

Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2017) is a former New York Supreme Court Judge.