*1 [821 697] NE2d 787 NYS2d Respondent, v Frank- State York, New Appellant. Rodriguez, lin
Argued 19, 2004; October decided November
POINTS OF COUNSEL (Barbara Zolot City New York Appellate Litigation, Center for (a) It error I. was counsel), and S. Dean of appellant. Robert [2002]) (98 226 for the trial v NY2d Burgos-Santos under People mistaken notice of alibi on rebuttal the factually court admit (b) court, having and for the trial; disavowed during appellant mother, the source notice, to then bar appellant’s admitted from about the no- testifying of the information (Williams the trial defense. inconsistency tice to with explain 147, Florida, 78; Rivera, v 58 AD2d 45 NY2d v 399 US People Nelu, Brown, 226; v 157 AD2d 989; People v 98 NY2d People McKeon, Tennessee, 605; 864; v 406 US United States v Brooks Pelchat, 166; F2d v v 62 26; Laing, People 738 79 NY2d People Dawson, Illinois, 400; v 50 97; v 484 US Taylor People NY2d 311.) refusing missing II. to issue a NY2d The court erred for their failure to charge produce witness against People witness, Pacasio material where the Beuno, concededly any “diligent failed to demonstrate efforts” (Reid Senkowski, 374; F2d were made to locate him. v 961 People Savinon, Gonzalez, 424; v 68 192; 100 v NY2d People NY2d States, 118; v v 78 NY2d Kitching, Graves United 150 US People Robertson, 532; 722; v v 205 People 76 NY2d People Vasquez, Gladden, Crimmins, 747; AD2d v 243; People v 180 AD2d People 230.) NY2d III. The court violated constitutional appellant’s 36 statutory by excusing and to be sworn right present qualified juror v 69 (People Buford, “on consent” absence. appellant’s Roman, Harris, 290; 202; v 99 v 88 People People NY2d NY2d Mullen, Maher, 44 1; 89 NY2d 18; People People NY2d v NY2d v Davidson, Childs, 318; 881; v 247 AD2d People v 89 NY2d People Morales, v NY2d 319; 113; v NY2d 80 Sprowal, People 84 People 944.) Torres, 450; v 80 NY2d People (Yael Johnson, Levy, Bronx V. Attorney,
Robert T. District for re- counsel), R. Joseph Stanley Kaplan N. Ferdenzi a reasonable beyond I. guilt proven Defendant’s spondent. (1) II. trial court by overwhelming properly evidence. doubt People’s into on the alibi notice admitted defendant’s (2) from testify- mother case, precluded rebuttal 226; 98 Burgos-Santos, NY2d (People the notice. v ing about 990; Florida, 84 Stephens, v NY2d 78; People v 399 US Williams 464 Iannelli, Whitehead,
People 684; v 69 NY2d People v 305 AD2d 286, 600; Thomas, 935; 100 NY2d v 210 AD2d People People v Parson, 208; Illinois, 268 AD2d Taylor 400; v 484 People US v White, 1271.) 209; Chiavola, 228 AD2d United States v 744 F2d III. The trial court properly give declined to a missing witness charge to Pacasio Beuno. v respect 84 (People Stephens, Keen, 990; v Gonzalez, NY2d 94 v People 533; NY2d 68 People 424; Savinon, Macana, NY2d v People 192; 100 NY2d v People Delacruz, 173; 84 NY2d v People 387; 276 AD2d v People Es calera, 259, Smith, 846; AD2d 87 NY2d v 279 AD2d People 835; 722; 96 NY2d v People 76 NY2d v Vasquez, People Rob 243.) ertson, 205 AD2d IV right Defendant’s to be at a material his stage of trial was not from abridged by absence a discussion about a sworn juror’s continued fitness to serve. Dokes, (People Robles, v 656; People 763; NY2d v 86 NY2d Sandoval, 371; Metro, v NY2d 173 AD2d *3 Harris, 1004; People 202; Morales, 79 NY2d v 99 NY2d v Mullen, 450; 1; 80 NY2d v 44 NY2d v 82 People Aguilera, 23; 449; Massachusetts, NY2d v 75 NY2d People Darby, Snyder v 97.) 291 US
OPINION OF THE COURT J. Rosenblatt,
The has in Legislature enacted a connection al- protocol in (1), ibi defenses criminal cases. to Pursuant CPL 250.20 prosecution may compel the defense to serve a that spells out an intended alibi If a particulars defense. defendant fails to or supply specified it, calls witness not gives statute the trial court discretion to exclude alibi after receive it an granting prosecution (CPL [3]). adjournment us, the case before defense, after disavowing reliance on its alibi notice but not withdrawing it, introduced alibi gave two witnesses who new to a relating different time frame. Rather than strike their prosecution court allowed the to testimony, introduce notice of alibi on its rebuttal case. We with defendant that agree error. was
I. 1997, heard that mid-August an had altercation with Pacasio Beuno and Hiciano. De- James fendant later encountered him if Beramy Garcia and told Hiciano, defendant were ever to with Beuno or see Garcia he would shoot them all. In the morning hours early August walking together on a Beuno, Hiciano were Garcia lights public cruised when a car with in the Bronx street passenger slowly by defendant fired seat, From front them. wounding eventu- shots, all three men. Defendant was several shootings. ally apprehended and indicted for the stating lawyer prepared an alibi notice Defendant’s first alleged defen committed,” crime was at “the date and time the birthday party Bronx, Avenue in the dant was at on Sheridan presence The notice did of his uncle and another man.1 any dates or not set forth times.2 girlfriend
During who case, the defense called defendant’s during early asleep morn- testified she was with defendant shooting place—and ing August took hours of 28th—when the together they up a.m. Defendant did woke at about 10:00 obviously though her as even she was not list furnishing an witness one a time frame different from the alibi and object People, however, described in the notice. did they stricken, nor did ask her direct or ask have adjournment investigate the new alibi. Partway through witness, of this his cross-examination girlfriend’s for the first time that asserted hearing 250.20 and asked for a Dawson violated CPL justified withholding exculpatory probe whether she (see [1980]). During People Dawson, information NY2d hearing, attorney he told the court that had “just timing and had mistaken as been *4 brought Republic an alibi witness back from the Dominican [defendant’s uncle] who out not to be an alibi witness turns looking wrong Although defendant I was at the date.” because it from the notice, did not girlfriend’s surprise the alibi obvious withdraw became presenting was early morning covering hours of different the new and alibi counsel, According subsequent the of the informa- 1. source Re- uncle was in the Dominican tion in the alibi notice was defendant’s who mid-January public until 9, days the trial was 1998. Two before 2. This alibi notice dated November alibi year date on the notice—the commenced—and more than a after the copy lawyer of newly prosecutor subsequent assigned asked defendant’s notice]” prosecutor [the the “couldn’t find because trial, prosecu- January 17 or the days into the as of file. More than having investigated alibi, just the date the received tor had still sequence of It from this alibi witness. is clear of birth and address the investigated nor relied on the prosecutor neither prior trial the events that alibi notice. facts contained the August shootings. 28th, the time of the actual Defendant’s at- torney only speaking maintained that after with defendant’s uncle did he realize that former counsel’s alibi notice covered wrong, span. earlier time At the conclusion of the Dawson hearing, prosecution impeach the court allowed the the wit- ness for her failure to come forward earlier.
The defense called mother, also the witness’s who on cross- by prosecution examination corroborated new alibi. prosecution Again, preclude did not ask the court to this adjournment, or seek an but used the alibi notice in attempt Further, refresh the mother’s recollection. objection, prosecution case rebuttal and over defendant’s “judicial introduced alibi notice as a admission” to assail credibility girlfriend mother, defendant’s and her even though neither made statements contained the alibi notice. prosecutor
The offer declined the court’s to strike defendant’s girlfriend’s testimony. girlfriend Both the and the girlfriend’s already severely mother had discredited, been by hearing prosecutor’s former the Dawson and the latter conflicting, use earlier alibi “refresh her recol though lection”—even the notice had no relevance to her testimony. Despite the effective cross-examination of the wit prosecutor nesses, the court further allowed the the al move during prosecu ibi notice into evidence his rebuttal case.3 The argued tor then in summation notice demonstrated deceptiveness guilt. defendant’s and consciousness of The court gave prosecutor advantage: thus first, a two-fold tactical credibility impeach allowed him to of the new alibi wit permitted notice; nesses with the it then to offer duplicity. the notice as evidence of guilty attempted found defendant of three counts (Penal 125.25) §§ degree murder in the second 110.00, Law (Penal degree criminal use of a firearm in the first Law 265.09). § Appellate concluding affirmed, Division Judge of the did A use alibi notice not warrant reversal. granted appeal. Although Court leave to we conclude that the error, use the alibi notice was affirm the error we because harmless. *5 suggests preserve argu- 3. The concurrence trial did counsel not by prior prohibits impeachment (concurring ment that CPL 250.20 471). op difficulty concluding pages argument at We have no tbat the 30 admissibility preserved our over of the notice the issue for review.
467 II. premise a criminal cases state that in
CPL rests discovery—in may pretrial impose the form of a limited form violating requirement—on defendants without an alibi rights.4 question process and due their Fifth Amendment may prosecution at trial use the notice us is whether before as evi witnesses and to discredit the guilt. dence (98 [2002]), People Burgos-Santos held 226, 235 we v NY2d use alibi notice to cross-examine
that the could not withdrawn the notice the defense had the defendant when potential recognized unfairness al trial.5 also before We exploit lowing prosecution notice, and withdrawn prosecution permitting impeach a defendant who trial could have a “fix had abandoned an alibi defense before ing” (id. 234), tendency tying ineluctably to a at the defendant might longer strategy owing circumstances, no be valid. that, experimentation unprincipled with trial While we disfavor suggested improper tactics, parties never that it is for we have held strategies during developments to alter their based on long party prejudiced litigation opposing is not so as the faith. there is bad
Burgos-Santos
critically
is instructive but
different from
Contrary
prosecution’s contention, it
case before us.
authorizing
prosecution
an alibi
not be read as
introduce
notice on rebuttal
to discredit the
of defense wit-
Burgos-Santos,
Here,
did
nesses.
in contrast
defendant,
nominal
notice to cross-examine
use the alibi
Instead, after defendant abandoned the
maker.
prosecutor
introduced it as evidence to rebut
summation as evidence of
two defense witnesses and in his
particularly inap-
guilt.
This is
defendant’s consciousness
plausible
propriate
where,
here,
defendant had
basis
(1970);
Florida,
People Copicotto, 50 NY2d
4. See
v
If we a defendant who relying particular an alibi serves on a witness would risk if, reason, the introduction of the notice some for the witness using circumstances, becomes unavailable. Under those the no- guilt tice as evidence of defendant’s could raise constitutional objections. projected by carefully The format CPL 250.20 is bal- rights designed anced, with and with to remedies redress viola- By authorizing tions. the trial court to exclude alibi (or granting adjournment), prosecution to receive it a after statute shields the from trial The ambush. statute procedural protecting against fosters orderliness while fabri- surprise testimony. provide any cated or It does not prosecution sanction adjournment an other than for the or an exclusion, part, in whole or and see no we basis to allow the sanction imposed: prosecution’s introduction the alibi notice on the rebuttal to discredit of witnesses other de- than fendant—witnesses who made themselves none of the state- ments firmatively in the contained alibi notice—and to use the notice af- guilt.
as prosecutor pursue statutory remedy. did not a Instead of raising objection appropriate availing himself of CPL (exclusion (3) remedy adjournment investigate), or to prosecutor by, failing object sat as the defense elicited pages transcript more than 30 of trial from witness given.6 prosecutor finally for which no notice had been When cross-examining girlfriend, raised the while issue he adjournment—which asked not for exclusion or an the court compelled grant receiving testimony— would been have before hearing, prevailed. Having for a but Dawson on which he remedy, prosecution declined seek a correct cannot avail of an one. itself incorrect colleagues
Three of our would hold that the trial court properly disagree. admitted the alibi evidence. We discretion, statute offers two remedies. the trial court (in may preclude part) the alibi whole or provided gives prosecution it, receive the court first adjournment days—to chance—an more than three Indeed, facts, prosecutor these it is difficult to see how the 473). prejudiced by (concurring op On disavowal the alibi notice partway eve of trial the had not even seen the alibi through investigated trial he had not even it. the sanction permit statute does not What the investigate. concurrence, in the Despite suggestion court allowed here. right not chill defendant’s constitutional holding our does The trial court could have allowed a defense. conclude, however, We adjournment. following supported nor the rules of evidence neither the statute *7 concurring colleagues find of our here. We it odd ruling court’s of and to on the absence error to their affirmance based justify more protec then characterize affirmance somehow such Indeed, an affirmance constitutional rights. tive of defendant’s carry in the of the alibi could we condone misuse which objections.7 its own constitutional of alibi no the introduction the
Notwithstanding improper not case merits reversal. There tice, we do believe this the overwhelming guilt, including eyewitness evidence and his own announced intention testimony two victims that the error was shoot the victims.8 We therefore conclude [1975]). (see Crimmins, 230, 242 harmless 36 NY2d and remaining have considered defendant’s contentions We Accordingly, find them without merit. the order the Appellate affirmed. Division should be order Ap- J. I would affirm the of the (concurring). Graffeo, I not Division conclude that the trial court did
pellate because in by abuse its discretion the introduction allowing in both this case. parties and with charged attempted
After defendant was arrested attorney murder three his allegedly shooting people, pre a notice to CPL pared pursuant indicating of alibi the time and date attending birthday party defendant was colleagues go support affirmance, concurring far as of an our so 7. preclusion be unconstitution- aver that the of unnoticed alibi issue therefore argument even has made. This al—an that not appeal. in this not raises constitutional claims before us. Defendant realizing no- counsel, the mistake note that defense on We Instead, tice, have the of the dilemma. in violation should notified court 250.20, nothing from defendant’s defense said and elicited section alibi. girlfriend defendant with a brand new a fine of that furnished limine, could the court properly and aired the issue Had the acted appropriately. its discretion have heard both sides and exercised that, People, by the the defendant provides upon demand 1. The statute (a) alibi,’ place places the defen- reciting “a where ‘notice of must serve (b) names, the resi- question, dant claims to have been at time every addresses, places employment and the addresses thereof dential of the shootings. During trial, defendant’s new counsel ad- vised the not on rely of alibi. Counsel claimed that the notice of alibi had been composed prede- cessor under the mistaken belief crime occurred at the same time as the party defendant purportedly when, attended in fact, crime occurred approximately 18 hours earlier.
A revised alibi defense was introduced at trial when defense counsel called defendant’s girlfriend She told the testify. that defendant had been at her home night At question. point, prosecutor asserted that defendant had violated CPL 250.20 by presenting alibi witness who was not identified in the notice of alibi.
Although the prosecutor cited CPL appropriately 250.20, he apparently determined it would be advantageous impeach new alibi evidence information stated in notice. The prior therefore did seek to strike or preclude of defendant’s girlfriend, did not *8 to introduce the of attempt notice alibi during cross- examination of the or girlfriend otherwise her question about how her recollection contradicted the notice of alibi. Nor did the use the alibi notice to undermine the new defense during the testimony girlfriend’s of the mother, who stated she was also in the home with defendant on night the of the shootings. Instead, prosecutor the the used notice alibi in an recollection, refresh the mother’s attempt without revealing the or nature of the to the contents document jury.
It of the only was after all defense witnesses testified that the to introduce the sought alibi notice into evidence as part People’s rebuttal case for purpose impeaching the alibi Although objected evidence. defense counsel of the in evidence, admission the court al- ultimately lowed the People to use the notice alibi but, to stem the pos- sibility defendant, of unwarranted prejudice to instructed the the notice was jury introduced for the purpose sole (CPL upon rely.” defendant] such alibi witness [the whom intends to 250.20 [II.) (3) “If CPL states: at the trial the defendant such an calls alibi alibi, having having witness without or served demanded notice of if specified therein, may served a notice a such he calls witness not court relating any exclude of such witness to the alibi defense. The court so, must, testimony, doing upon in discretion such it receive but before application people, grant adjournment of the days.” not in of three excess impeaching evidence of and not as direct alibi .3 guilt question presented trial court abused now is whether the
The determining permit- should be that defendant its discretion despite of CPL evidence, his violation to offer new alibi ted discrep- allowing to address the 250.20, while also ancy alibi defendant’s notice of between majority introducing notice into evidence. written admitting notice of erred
concludes that the trial court disagree. I rebuttal to the new defense. impeachment argument majority adopts—that First, prohibited by not CPL 250.20—was with judge. indicated to Instead, to the trial defense counsel made “discretionary, al- it that the document be the court that was majority’s position—that Thus, do in.” trial courts lowed properly not before not have such discretion—is us. clearly
Second, a trial court to consider the statute authorizes truth-seeking function of the trial. alternatives that further (3) “may exclude” the CPL 250.20 states that court added) “may” (emphasis of an unnoticed alibi witness presented alternatively allow to be unnoticed alibi evidence adjournment affording People a after reasonable investigate permissive nature the statute the defense. provide judge Legislature a trial indicates that the intended to deciding appropriate the extent of sanctions latitude request introduce an eleventh- how otherwise address language if alibi. Even the statute’s does allow hour permissive interpretation, below, I believe, as addressed such interpretation required by the Constitution. such *9 analysis compelled by majority’s recent deci- Nor is the our (98 [2002]). People Burgos-Santos in sion NY2d 226 We recognized a used as an “informal that notice alibi cannot be (1) judicial impeach if the notice is admission” to the accused (2) “elect[s] not to and the defendant withdrawn before trial (id. 235). present The rationale an at trial” at alibi defense instruction, claim that light limiting it is inaccurate to In of the court’s affirmatively People permitted as evidence “to use the notice were 467-468). told that the op 468; was guilt” (majority at see id. at you have or have not by to whether the notice was “to be considered by you in the . . not considered disproved defense of alibi. . It’s to be only by guilt innocence, to considered whether be ultimate issue or And that’s position of alibi. proven have have not the defendant’s only to admitted.” purpose for that exhibit be underlying principle straightforward—if is a defendant present defense, chooses not to an alibi no violation of CPL occurs; notice, 250.20 therefore, neither material nor rel- any nothing in evant impeach to issue the case because there is any question concerning compli-
and the defendant’s statutory obligations ance with is academic. admittedly
But defendant in an this case stands before us in posture Burgos-Santos. different in Here, than defendant present chose defendant alibi defense conflicted that provided People. injected the information he a He new al previous ibi into case and failed to withdraw the notice. Burgos-Santos Thus, scenario, unlike the we this case have a credibility clear violation of CPL that rendered the the alibi defense a material issue.4 inadmissibility Burgos-Santos the notice of alibi in premised present
was
that
two considerations
are not
in this
impeachment using
against
case: that
a withdrawn notice
a de-
fendant who does not
an alibi
at
assert
defense
trial will
truth-seeking
“undermine the
function that notice of alibi
designed
by
[ing]
were
a
statutes
foster”
“inhibit
{id.
abandoning
factually
posture”
from
inaccurate defense
at
235);
“potentially
of a
the use
notice
process
withdrawn
could
]
implicate[
{id.
Fifth Amendment and due
concerns”
at
234) by locking
particular
early
a defendant into a
at an
stage
justice process.
in the
us,
criminal
In the case before
People’s
certainly
use of the
did not inhibit defen-
abandoning
initially
dant from
the alibi he
claimed. To the con-
trary,
knowing
allegedly
factually
defendant,
was
notwithstanding
possibility
preclusion
inaccurate
presented
contradictory explanation
250.20,
under CPL
of his
whereabouts.
Because defendant was
“fixed” to the alibi he
{id.),
any prejudice
earlier noticed
and to the
to him
extent
timely
caused
his failure
withdraw
this case
give
implications
does not
rise to the Fifth Amendment
Burgos-Santos.
informed the
result
my
majority’s application
view,
of CPL 250.20
un-
duly
right
restrict
accused’s
a defense and
majority’s
4. The
concern that “a defendant who
an alibi notice
serves
relying
particular
if,
aon
witness would risk
introduction of the notice
468)
reason,
(majority
some
op
witness becomes unavailable”
is unwar-
case,
presumably
ranted.
Unlike this
a defendant
that situation
would not
new,
presenting
be
unnoticed alibi defense
CPL
I
violation of
250.20.
*10
that,
situation,
agree
in such a
of the
introduction
notice into evidence most
just
likely
inappropriate,
be
in Burgos-Santos.
would
as it was
of an
light
footing
therefore stands on dubious constitutional
this,
In a case such as
where
rights.
Sixth Amendment
accused’s
new
defense approximately
defendant
first asserted his
alibi
2V2
his girlfriend
and relied on testimony by
after the crime
years
adjournment
short
mother, providing
and her
have been use-
may
new claims
well
investigate defendant’s
only remedy
all alibi
as the
less, leaving
preclusion
the Federal Con-
majority’s
Although
available under
rule.
as a
of defense evidence
prohibit preclusion
stitution does not
(see
for
of a
remedy
discovery
sanction
the violation
rule
Illinois,
v
[1988]),
inherent the rule announced today. According of all alibi ev- would have been entitled to preclusion was, as ma- idence even there by defendant, though offered abandoning “a jority recognizes, plausible basis (ma- with no claim of bad faith or prejudice prosecution” 467-468). at the dis- explained Defense counsel jority op before trial and the the alibi notice crepancy prepared between a mistake trial was attributable alibi presented counsel, who believed that former apparently when, later party at the same time as the shootings occurred discovered, day on the evening later in the began party evidence, If the trial court had shootings. precluded explain have been left with viable would Rather than imposing at the time of crime. his whereabouts defendant, trial hardship and prejudicial such severe course, parties both allowing a more balanced court charted *11 present their version of the evidence as to defendant’s where- abouts at the time of the crime. On record, be cannot failing by impose said that the court abused its discretion especially law, defendant the most extreme sanction allowed remedy requested by People. when that was never Judge Judges Kaye Chief Ciparick G.B. Smith concur Judge Judge with separate opinion concurs in in a result Rosenblatt; Graffeo Judges in which Read and R.S. Smith concur. Order affirmed.