*1 737] [958 NE2d NYS2d Corey Respondent, York, State of New The E. Appellant. Becoats, Respondent, Jason York, State of New
L. Appellant. Wright, 15, 2011;
Argued September decided October *3 POINTS OF COUNSEL (Donald Rochester Easton LLP, Thompson Kasperek Shiffrin counsel), and Brian and Kristin M. Thompson Shiffrin appellant in the first above- Splain, Defender, Conflict grant adjourn- entitled action. I. The trial court’s refusal to Corey presence ment so that Mr. Becoats could secure the of a rights critical witness violated Mr. Becoats’s constitutional to a present fair trial, to a defense, and to confrontation and consti- tuted an abuse of 270; (Matter discretion. 63 NY2d M., Anthony 402; 64 NY2d v People Singleton, v People Spears, 698; 473; 32 NY2d 196; 23 NY2d v People Foy, Matz, v People 600; 20 NY2d 81; 297 NY Ballott, v People v Snyder, 284; 410 US Chambers v v Mississippi, Singleton Lefkowitz, F2d 929; 440 US cert denied sub nom. Abrams Singleton, 14.) prove 388 US II. The failed to Texas, Washington Corey robbery. that Mr. Becoats committed the crime of (People *4 84 925; NY2d 56; 97 NY2d Williams, v Hines, v People v People 243; 95 NY2d 244; 91 NY2d Lynch, Ficarrota, v People v People 490; 69 NY2d 417; 85 NY2d Bleakley, People v v Cabey, People 10; 86 NY2d 103; 69 NY2d Gray, v People Jennings, Van Vechten 303; 239 NY 63 v American Eagle Co., Fire Ins. v People Wright, 1700.) jury AD3d III. It was reversible error to submit to the robbery charging Corey robbing count Mr. Becoats gun sneakers from the victim. (People Charles, 61 NY2d and/or v 321; 51; 7 NY3d 410; 68 NY2d Wells, People v Keindl, v People 12 152; NY3d Bauman, v People v People First Meridian Plan- 608; 86 NY2d 87; 418 US ning v Corp., Hamling States, United 265 56; 1700; AD2d 63 AD3d Reed, v People v People Wright, 46; 502 US 354 States, v States, United v Yates United Griffin 298.) evidentiary rulings US IV.The trial court’s which errone ously permitted improper prejudicial testimony and impermissibly prohibited testimony the admission of relevant
647 of his Mr. Becoats Corey cumulatively deprived singularly the United by guaranteed to a fair trial as right due process Johnson, 93 v NY2d (People Constitutions. States and New York Rivera, v 160 AD2d 359; 254; Geraci, People v 85 NY2d People Pitts, 715; 218 AD2d 1; 121 AD2d v 267; Leon, People v People v Hellen 868; AD2d Matter v 164 Kornegay, People of Holtzman v 645; AD2d 405; Johns, People v 297 brand, People 92 AD2d 595.) AD2d James, v 177 Melendez, 445; 55 People NY2d Green, Christine (Kelly Rochester Attorney, Michael C. District in the first above-entitled counsel), for respondent of Wolford action. I. The trial court in denying did not abuse its discretion the atten- to secure adjournment for an request defendant’s 473; Matter v 32 NY2d (People Foy, dance of a witness. 402; 41 270; v NY2d M., People Singleton, 63 NY2d Anthony Morris, v 546 F2d States, 199; 129 F2d Stone Gilmore v United 730.) in the first is robbery degree II. Defendant’s conviction of Hawkins, 11 v (People sufficient evidence. supported by legally Hines, 484; 10; v 86 NY2d v 97 NY2d Gray, People NY3d People 874; Cochran, 302 AD2d 56; James, v 75 NY2d v People People Sala, v 95 NY2d 276; Danielson, 342; v 9 NY3d People People Dekle, 835; v 57 NY2d 254; Rooney, v 56 NY2d People People 321.) 822; Charles, v 61 III. The question NY2d People degree in the first is charge robbery duplicitous whether cannot be reviewed this Court and is otherwise without Hawkins, 484; Patterson, merit. v 11 v 39 (People People NY3d Robinson, 224; v 5 288; People Kelly, NY2d v 36 NY2d People 116; 10; Kadarko, v 14 People NY3d v 86 NY2d People Gray, Kisoon, 426; O'Rama, 270; v v People NY3d NY2d People 509; v v 129; Starling, People Klipfel, NY2d People 371.) assistance of counsel NY IV. Defendant received effective under both the York and Federal Constitutions. v (People New 521; 668; 466 US Schulz, Washington, 4 NY3d Strickland v Kroemer, 1017; 204 AD2d Flores, 184; v 84 NY2d v People People 137; 796; v 66 NY2d Baldi, Satterfield, v 54 NY2d People People 476; 118; Turner, v 5 NY3d Ercole, People Rosario v 601 F3d 740.) AD2d 705; v Rivera, People Grayson, v 71 NY2d People the claimed errors a fair trial and none of V. Defendant received v (People reversal. require Division Appellate raised before 267; v Rivera, People 160 AD2d Wilson, 493; 195 AD2d People 231; v De 6 NY3d Geraci, 359; Corby, 85 NY2d *5 846.) entitled to relief based Defendant is not Vito, 56 NY2d VI. in the brief of co- in the claims raised “join” on his attempt 1002; Teeter, People v 47 NY2d Jason Wright. (People defendant 428.) Ford, v 66 NY2d
648 City, appellant New York for Edelstein,
Jonathan
I.
against
second above-entitled action. I. The evidence
defendant
support
robbery
was insufficient to
his conviction of
in the first
degree.
4
521;
NY3d
Schulz,
Jackson v Virginia, 443
v
(People
307;
US
244;
91
NY2d
Ficarrota,
125
v
People
Garland,
v
People
328;
AD2d
People Parker,
649 People People Kelly, 116; v v 224; v 5 NY3d Robinson, v 36 NY2d People People Gray, 426; 14 10; Kadarko, v NY3d 86 NY2d People People Kisoon, 129; 8 v 270; v NY3d O’Rama, 78 NY2d 440.) Starling, People III. De Sanchez, v 84 NY2d 509; 85 NY2d that the a trial based on his claim fendant is not entitled to new theory.” (People “illegal jury v him on an could have convicted People Hawkins, Buses, 404; v Inc., 6 NY3d Baumann & Sons Rooney, People People Dekle, 835; NY2d v 57 484; v NY3d Spann, People People Charles, 61 822; 469; v 56 NY2d v NY2d 1487.) People J.Y., IV. Defendant 321; v Cash 60 AD3d received effective assistance of counsel under both New (People Schulz, 521; v 4 NY3d and Federal Constitutions. York Washington, People 668; Flores, v 84 NY2d Strickland v 466 US People People 184; Kroemer, 1017; Baldi, AD2d v 54 NY2d v People Ercole, 796; 66 NY2d Rosario v 137; Satterfield, v People People 476; Rivera, 71 NY2d 118; Turner, F3d v 5 NY3d v 973.) People Defendant received a fair 705; Garcia, v 75 NY2d V. Appellate trial and none of the claimed errors raised before the require (People Corby, People 231; v Division reversal. v 6 NY3d People 493; Rivera, 267; Matter Wilson, 195 AD2d v 160 AD2d Anthony People 1484; M., 270; Brink, 63 NY2d v 57 AD3d People People Doud, 799; Canada, v v 280 AD2d 96 NY2d People 872; 1230; Dawson, 28 AD3d v 249 AD2d 93 NY2d People Gissendanner, 543; Bassett, 55 AD3d 48 NY2d 1434.) THE
OPINION OF COURT J. Smith, Corey Wright, appeal and their Defendants, Becoats Jason robbery. reject manslaughter most of and We convictions Wright arguments, is entitled to a new their but conclude that excluding pre- in he tried to trial because of an error evidence sent his defense.
I acting sought prove a defendants, that with to (who apprehended man, third Sherrod Carter had not been forcibly trial), Hayden Spears death, and beat the time of property an incident stole from him. Two witnesses described argued Spears street, first with which the three attackers began fists, hammer, hit him their a stick or and then with Spears pants. Wright gun removed from victim’s and a bleeding staggering, the three but street, fled down beating, caught up Becoats now him and resumed the using nearby a broken bottle. The field, fracas moved into a sight where the Later, witnesses lost of it. the attackers came Wright carrying pair field; back out of the of sneakers. Spears was found near death in the field. He died of blunt force trauma.
The two witnesses who claimed to have seen the attack were Lorraine Carter, Small Nicholas Sherrod Carter’s brother. significant Both had criminal records. There was forensic evi- *7 dence consistent with the witnesses’ accounts of the event, but identity except eye- there was no evidence of the attackers’ testimony. witness jury degree (depraved
A
convicted both defendants of second
indifference)
degree robbery.
Appellate
murder and first
The
by reducing
Division modified
slaughter
the murder convictions to man
degree,
(People
in the second
and otherwise affirmed
v
Wright,
[4th Dept
63 AD3d
2009];
v Becoats, 71
2010]).
[4th Dept
Judge
granted
AD3d 1578
A
of this Court
de
(15
appeal
fendants leave to
NY3d
[2010];
II single robbery The indictment included a count of degree, asserting “forcibly property, first that defendants stole gun pair Hayden Spears” wit, to a of sneakers from and/or physical injury Spears. Wright and caused serious to Becoats and duplicitous robbery claim that this count was that the i.e., — gun robbery separate and the of the sneakers were crimes charged separate They that should have been counts. did not argument make this court, the trial however, and we hold may that we not consider it. general rule, course, is that this Court does not preserved by appropriate objection
consider claims of error not (CPL in the court of first instance 470.05, 470.35; omitted]). [1976] [citations Patterson, 39 NY2d 294-295 De- bring exception fendants seek to this case within the narrow proceedings” exception so-called errors, “mode of but the does apply not here.
We said in “A Patterson: defendant in a criminal case cannot organiza- waive, or even to, consent error that would affect the proceedings prescribed by tion of the court or the mode (39 295). law” NY2d at We added: exception purpose narrow, of this historical is
“the in ac- that criminal trials are conducted to ensure procedure cordance Constitution and statute. Where the mode of mandated procedure adopted by the court below is at a basic variance law, the entire trial ir- with the mandate of is (id. 295-296). reparably tainted” at every procedural misstep in case is a mode of Not a criminal proceedings That term is for the most fundamen- error. reserved shifting proof Examples tal are the of the burden of from flaws. (id. 296), prosecution delegation to defense and the secretary judge’s (People Ahmed, trial function to his or her law [1985]). Mistakenly charging more than one crime in one count of an indictment is not a fundamental error charges separated in this sense. A defendant who wants the must seek that relief at trial. unpreserved duplicitousness
To claim of be allow raised appeal open Defendants accused of would door abuse. multiple may many they offenses not much care how counts conviction) (and may prefer face, or to face one count thus one *8 seek, rather than Under the rule here it several. defendants by possible would be ting duplicitous for them to make that choice at trial let- objection, indictment stand without and make opposite appeal; they might the choice on thus obtain a new they consciously trial on the of an error not to basis decided challenge they thought insignificant, because or it. welcomed expand proceedings” To the definition of “mode of error too freely many create such results. would anomalous argument the
We therefore do not consider defendants’ that duplicitous. express opinion indictment here We no about was argument’s the merit.
III grant complain trial court’s refusal to Defendants adjournment, trial, the of to allow the defense to on eve custody. testimony hold obtain the of a witness in federal We the court did not abuse its discretion. that September begin 12, 2005. On The trial was scheduled to on days August a let- trial, Becoats’s counsel received before August prosecutor The letter said that ter from the dated 19. prosecution recently interviewed, a wit- of, had learned the prisoner. Bishop, Bishop, accord- ness named Michael a federal August ing prosecutors “that he on letter, to the had told Hayden Spears. beating present portion He the was for a Carter, stated that he observed Sherrod Nick Carter and Jason Wright place beating. [sic] in take the He also stated that he did Corey present not see Becoats when he was at the scene.” Becoats’s counsel was on trial in another case when the prosecutor’s responded August by letter arrived. He on ask- ing Bishop lawyer located, where was and who his was. The prosecutor replied August identifying Bishop’s lawyer prison Bishop being and the federal in Ohio where was held. lawyer, according Becoats’s below, to his submissions “im- mediately Bishop’s lawyer up” contacted” and then “followed by making contact the United States Marshal’s He office. guarantee advised, he the court, told “that no could be prisoner produced- made that would be a state court proceeding” any and that in event “the U.S. Marshal’s office given days had to be at if least 30 notice” there was to be a possibility” Bishop “remote that would be made available. lawyer The exact date of the conversation between Becoats’s lawyer appar- and the Marshal’s office is not in the record. The ently nothing September did as a result of the conversation until day 9—the last business before the trial —and even then he did begin any proceeding not seek an order or other to obtain Bishop’s testimony, by deposition. Instead, either trial or he papers describing sequence filed with the trial court asserting prosecution “dragged events, that the had its feet in providing asking defense,” the information to the for “an adjournment proceeding [Bishop] that so can be secured adjournment granted. at trial.” The was not say We cannot the trial court abused its discretion denying adjournment. testimony, It is true that the witness’s prosecutor, very significant, as described seemed and it is speedily also true that the could have acted more than *9 they why, having Bishop did. It is not clear interviewed August People days 17, the waited two and then sent a letter to by regular If defense counsel mail. defense counsel had acted diligence receiving letter, with reasonable after that and had Bishop’s testimony nevertheless been unable to in time obtain might trial, for it well been an abuse of discretion for the have (see deny adjournment Foy, court to an [1973]). justified finding, however,
The trial court that defense was diligence. assuming counsel did not act with reasonable Even delay August August that the from 23 to 29 is excused trial, counsel’s involvement in another there were almost two (when got response August a his weeks between counsel to August inquiry) and the trial date which counsel could sought, perhaps requiring Bishop’s obtained, have testimony. an order complain so,
Counsel chose not to do but instead to adjournment. People’s It about conduct and ask for an is really Bishop’s unclear from the record whether counsel wanted testimony, simply delay, hoping or wanted or was to create an appeal. whether, for It issue was for the trial court to assess adjournment hope circumstances, under all the of obtaining justified, Bishop’s testimony and we see no basis second-guess in the record to the trial court’s conclusion. acknowledges The dissent doubt about whether counsel “did (dis- possibly Bishop’s appearance” all that he senting op could to obtain 658-659). dissenting colleagues Nevertheless, our apparently pos- Becoats, would order a new trial for because the sibility deprived exculpatory that critical, Becoats was testimony unacceptable. pos- seems But that is no more than a sibility Bishop’s may on this record. account of the facts have helpful turned out to be much less it Becoats than seems prosecutor’s may letter; from the tegic counsel have had sound stra- doing reasons for no hand, more than he did. On the other really prejudiced by if inaction, Becoats has been his counsel’s holding today prevent demonstrating our does not him from brought that on a motion under CPL article 440.
IV charged As above, we mentioned the indictment defend forcibly stealing Spears gun pair ants with from a a “and/or” argue sneakers. Defendants that the evidence is insufficient as support robbery. They to both items to conviction also argue that if the evidence was sufficient as to one item but not necessary. reject argu other, a new trial is both of these We ments. gun, Appellate agreed
As to the Division with defendants only that the evidence was insufficient. The record shows gun Spears’s took him defendants to beat with and then Appellate held, This, abandoned at the scene. Division prove permanently was insufficient to that defendants intended (see deprive Spears possession gun and use of the [1986]). Jennings, 69 NY2d 118-121 We assume that this aspect Appellate is correct. Division’s decision Appellate affirmed defendants’ rob- Division nevertheless bery concluding convictions, that the was sufficient to evidence *10 they forcibly
support finding a that stole the sneakers. Defend- argue saying proof otherwise, the ants that there is no sneakers Spears. point victim, Defendants out that were taken from the actually Spears’s no the from witness saw sneakers removed Spears feet; the end of the encounter between and his attackers sight. place in took a field out of the witnesses’ No witness Spears day, of on that and mentioned what kind footwear had specifically he he found no one said that lacked shoes when was (though investigator body hospital an who observed his at the feet”). on The sneak- said there was “a lot of dirt and sand his Wright brought say, field, that out of the defendants could ers anywhere. have come from support think the sufficient the verdict as
We evidence was three men a fourth man uncon- to the sneakers. When beat emerge group field, in a a one scious and from the field as with carrying pair sneakers, them a the inference that the of of strong beating victim is a one. It is sneakers came from the theoretically possible, Spears’s course, chanced of that attackers upon jury pair field, in the but a abandoned sneakers beyond find, doubt, could a reasonable that that is not what happened. argue, alternative, Defendants that the now they purpose “for of’ evidence fails to show that used force (see 160.00), § taking Spears’s but that sneakers Penal Law argument preserved not made below and is not for our [2008]). (see People Hawkins, review NY3d reject argument that a new trial is We also defendants’ robbery might required verdict based on because the have been taking gun. Supreme held As the United States Court (502 [1991]), general a in v United States US Griffin merely pos- not set aside “because one of the verdict need be unsupported evi- sible . . . sufficient bases conviction was legal theory given to the dence.” It is different when a flawed is jurors given jury decision; if are as an alternative basis for option convicting legally inadequate grounds, is no “there intelligence expertise will reason to think that their own (id. 59). jurors But where are save them from that error” given factually factually supported un- a choice between theory, they supported the one have chosen is assumed jurors analyze support, equipped to factual “since are well (83 (id.). v Martinez made clear the evidence” We [1993]) accept the distinction between 26, 36 that we inadequacy legal case. made and factual Griffin
V finally requires We come to the issue that we conclude reversal Wright’s conviction. only linking As mentioned, we have evidence defend Spears ants to the attack on came from two witnesses who said they attack, saw Lorraine Small and Nicholas Carter. In a deposition given police to about a event, week after the Small told them that she had overheard a conversation in which an Spears being planned. According attack on was Small, to Nicho part Wright las Carter conversation, took was not present. jury Wright The conversation; never learned of this put evidence, tried to it in him but the trial court would not let this, do so. In conclude, we the trial court erred.
According deposition, porch to Small’s she was on her front day group talking on the before the crime when she heard a neighboring group front of a house. She said that the included people, five whom she named: Carter, Sherrod Nicholas Carter among Wright They and Becoats them, were but was not. were talking, according Spears. Small, to about “what to do with” they Some said gonna should beat him. Sherrod Carter said “no I ain’t gonna adding gonna beat him, I’m kill him,” “I’m mur- point, according der that motherfucker.” At that Small, to “Nick stop talking told him to so loud.”
Wright sought question at trial to Small about this conversa- helpful ways showing tion, which to him in two both his — planning participation by absence from the session and the in it People’s key one of the witnesses. The trial court ruled that the hearsay statements Small overheard should be excluded grounds. ruling Wright argues, perhaps correctly,
This was mistaken. going Spears that Sherrod Carter’s statement that he was to kill present exception was within the “statement of intention” to (Mutual hearsay rule Ins. v Hillmon, Co. 145 US Life [1999]). [1892]; 294-296 v James, 93 NY2d 627-636 Wright rely hearsay exception, But did not even need to on a offering any because he was not statement, Sherrod’s or other Wright declaration, truth; out-of-court for its had no interest in proving actually Spears. Wright that Sherrod intended kill only prove part meeting, wanted that he was not of this proffer hearsay problem. that Nicholas Carter was. His raised no The do not defend the exclusion of the statement on hearsay grounds, argue but that the trial court had discretion to Wright’s its relevance to defense was
exclude because possible prejudice disagree. outweighed to Becoats. its We Wright. very In a could been valuable to evidence have testimony wholly dependent eyewitnesses— case on the of two might had criminal records that have made the both whom actually jury proof one of had doubt their the two word— planning might participated in the crime have been decisive. It supplied argument have the basis for an that Nicholas could falsely accusing Wright criminals, Carter was one of the and was Admittedly, his involvement. Small’s accusation to conceal own jury might Wright not have convicted would remain —but the Wright on her word alone. *12 may prejudice Becoats, to there been none. As
As for the have testimony may said, the well have been admissible we have against But if it Becoats under Hillmon and James. even was enough provide good depriving for not, that does not a reason important exculpatory Other Becoats’s codefendant of evidence. by carefully limiting might perhaps means have been found — Wright scope questions protect the of the and answers —to being without unfair to Becoats. remaining arguments
Defendants’ lack merit. Appellate Accordingly, People Becoats, in the order of the Wright, In the order of the Division should be affirmed. Appellate reversed, should be and the case remitted to Division Supreme Court for a trial. new Becoats): Judge (dissenting in I am in
Chief While Lippman agreement majority’s in the resolution of the other issues agree I the denial of defendant Becoats’ case, the do not that adjournment under the circumstances within motion for an was range permissible Indeed, trial court’s discretion. the appears of the very highly incongruous the the least to conclude as at Wright’s majority convic- has, hand, on the one that defendant erroneously upon ground tions must be reversed potentially evidence, showed that one of excluded, “decisive” actually prosecution witnesses, Carter, Nicholas “had the two 656) (majority op planning participated and, crime,” in denying defendant other, that the trial court’s decision on the testify adjournment present a who would Becoats to witness one actually Becoats, Carter, and not take seen Nicholas that he had part for trial. crimes, also sufficient cause a new was not prosecution records. had extensive criminal
Both witnesses veiy exchange generous in a Carter, fact, testified Nicholas allowing satisfy plea pending drug him B offer to class A-II and felony charges probationary trial, with a sentence. At he evening question running on the he recounted that had been fight go- bath his niece him a a when informed that there was ing fight on across the street. He claimed to have watched the progressed up Joseph Place, as it have seen defendants pull Spears, abutting they victim, field, into where were joined by brother, Carter’s At Nicholas Sherrod Carter. this point, that, Nicholas went inside to take bath. He his testified his was he over, Sherrod, when bath observed Becoats and Wright coming Wright, holding out field. said, of the he a was pair of boots. days August 23, 2005,
On trial before the was scheduled to begin, attorney defendant Becoats’ received letter from the County Attorney assigned Monroe Assistant District to the case. opened by indicating The Assistant his communication that he “pursuant Brady [the writing, prosecutor’s] ongoing obligation.” Attorney’s The letter then advised that the District August 15, office had on learned 2005 that a federal inmate Bishop Spears named Michael had about information case. Attorney An August had been interview conducted District .the during Bishop 17, 2005 which stated that had he been present during part Spears beating although and that he Wright beating Carter, observed Sherrod Nick Carter Jason Spears, Corey he did not see Becoats at the scene. *13 August attorney inquiry
On 29, 2005, Becoats’ made a letter Attorney place Bishop’s the of Assistant District as to the of identity lawyer. sought incarceration and the of his The infor- days provided speaking mation was two later. After with Bishop’s attorney, Becoats’ counsel asked the United States feasibility transporting Bishop Marshal’s office about the of facility Youngstown, from the federal in correctional Ohio where upcoming County he was incarcerated to Becoats’ Monroe trial. indicating office noncommital, Marshal’s was that a state “body processed court in order” would be due and that course minimally days required production notice was of a prisoner proceeding. federal at a state September attorney requested 9, 2005,
On Becoats’ adjournment Bishop produced of the trial so that could be to testify. any September ruling upon 2005, 12, On defend- before adjournment request made, ant’s had the been disclosed they for the first time that intended to call Nicholas Carter as a Inasmuch, however, had witness. as Nicholas Carter been beating by Bishop’s implicated Spears Bishop, in the testimony merely exculpatory anticipated as to would be Be- not prosecution one of but would demonstrate that the two coats falsely implicate others, had to counsel for witnesses a motive joined request Wright, Becoats, now counsel for renewed his adjournment permit Bishop’s production in to court. The for an adjournment, denied the because was trial court nonetheless subpoena sought judicial the view that counsel could have earlier. adjourn- propriety
Although inquiry judging in the of the our determining the denial consti- ment denial is limited to whether very discretion —a tolerant standard that tuted an abuse of judicial respecting purposefully management most decisions the insulates scrutiny— retrospective appellate from of a trial judicial generally range permissible under- the discretion is adjourn- significantly the in situations where stood to contract (see right necessary to the exercise of a fundamental ment is Foy, People Spears, [1973]; 473, NY2d 476-477 [1984]). Fully implicated by 698, defendant Be- 699-700 right pre- adjournment request to was his fundamental coats’ (see Mississippi, 410 in his defense Chambers v sent witnesses [1973]) compulsory closely right and his allied to US process of such Also to secure the attendance witnesses. key against right implicated him— to confront a witness his given protec- that, I not the basic Nicholas Carter. do believe the stake, all of were to fair- that were at which essential tions probity impending trial, court, under the ness and adjournment deny circumstances, discretion Becoats’ had request. disputes Bishop if had testified accordance
No one gave District At- the crime he the Assistant the account of provided August torney he have evidence to 2005 would during part although present that, he had been the effect beating moreover, that and, one he did not see Becoats victim’s prosecution events was witnesses to relevant of the two beating participant he claimed have himself a *14 materiality evidence to of this from afar. obvious witnessed impossible counsel did to overstate. Becoats’ Becoats’ defense is relatively Bishop’s the incident until version of not learn about shortly would not that Nicholas Carter before trial and did know literally, day testify prosecution the the trial’s until, the for quibble possible about It is commencement. scheduled possibly Bishop’s he that he could to obtain did all whether appearance day trial, for the is a scheduled but it clear that here or there would not have made a difference that an and adjournment any necessary would, event, in been have Bishop’s production facility secure the in from federal Ohio Undoubtedly, rescheduling where he was incarcerated. the trial court, would have been inconvenient for the but would not have been postponement than more that —there was no a contention precluded presentation any
would have
testimony
any
or other evidence. Nor
there
reason to
suppose
Bishop’s
that
could
have
attendance
not
been secured
within
was,
all,
a reasonable time. He
an
after
identified wit-
prison,
proce-
ness in a federal
and there exist established
federally
dures to obtain
the attendance
incarcerated wit-
(see
650.30).
proceedings
nesses in state court
CPL
While
procedures rely
upon
voluntary coopera-
those
for effect
suppose
tion
authorities,
of federal
there was no reason to
cooperation
forthcoming.
that such
would not have been
sought
This was not a situation in which the defendant
“endlessly
pursue
[to]
(Foy,
an elusive witness”
Judge Judge separate Lippman Smith; Chief dissents a opinion Judge in which Jones concurs.
In
v Becoats: Order affirmed.
*
proceeding
Singleton prevailed upon
This was a federal habeas
which
claim,
previously rejected
(People Singleton,
In