Lead Opinion
OPINION OF THE COURT
In People v Cintron (
In June 2003, defendant, a home health aide, was with 83-year-old complainant at his home in the Bronx. They were making food to bring to complainant’s wife, who was in a nursing home. According to complainant, defendant suddenly hit him from behind with a hammer and demanded money, which he gave her. According to defendant, she hit complainant with “something” only after he grabbed her breast, and she neither asked for nor received money. Complainant suffered five head wounds and two broken fingers. Shortly after the incident, he moved to California to be near his children. Defendant was indicted for assault in the first degree and two counts of robbery in the first degree.
Prior to trial, the People sought and were granted a conditional examination of complainant pursuant to CPL 660.20.
After a hearing at which both the People and the defendant presented expert medical testimony, the court, crediting the People’s experts, held that complainant—at that time 85 years old, frail, unsteady on his feet, and with a history of coronary disease—could not travel to New York without endangering his health, and was therefore unavailable. At trial, complainant testified live from a courtroom in California via two-way video, appearing “on screen.” He stated that he could see the judge, prosecutor, defense counsel, defendant, and jury. The judge stated that the witness could be seen “very clearly,” including “any expressions on his face.”
Defendant was convicted of second degree assault only. On appeal, a divided Appellate Division reversed and vacated the conviction, holding that, in the absence of any express legislative authorization, Supreme Court lacked authority to permit the admission of televised testimony (People v Wrotten, 60 AD3d 165, 167 [1st Dept 2008]). The dissent concluded that Supreme Court retained discretion under its inherent powers and Judiciary Law § 2-b (3) to utilize this new procedure without legislative authorization (Wrotten,
Although the Legislature has primary authority to regulate court procedure, “the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute” (People v Ricardo B.,
Unable to find any explicit statutory prohibition regarding two-way televised testimony at trial, defendant argues that extant statutes implicitly preclude its admission. However, there
Neither do the statutes providing for preservation of pretrial testimony implicitly preclude the admission of live video testimony. CPL article 680 permits testimony taken by “examination on a commission” outside New York on defendant’s application to be received as evidence at trial (CPL 680.10, 680.20). CPL article 660 allows either party to secure testimony—including videotaped testimony—for subsequent use in a case where the witness will be unavailable for trial (CPL 660.10, 660.20). These statutes do not speak to the permissibility of real-time video testimony subject to cross-examination in front of a jury. Nowhere does the CPL purport to list all instances where live video testimony is permissible or all possible solutions to the problem of an unavailable witness. Supreme Court, acting pursuant to its inherent powers as defined in the New York Constitution and Judiciary Law, was therefore not precluded from exercising its authority to utilize necessary, extrastatutory procedures.
Moreover, the exercise of this authority following a finding of necessity is permissible under the Confrontation Clauses of both the Federal and State Constitutions. We held in Cintron that CPL article 65’s authorization of two-way closed-circuit testimony in a criminal trial passes constitutional muster (
Live two-way video may preserve the essential safeguards of testimonial reliability, and so satisfy the Confrontation Clause’s primary concern with “ensuring] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact” (Craig,
Additionally, if Supreme Court’s findings were supported by clear and convincing evidence, Craig’s public policy requirement is satisfied here. Nowhere does Craig suggest that it is limited to child witnesses or that a “public policy” basis for finding necessity must be codified. Indeed, federal courts have permitted live video testimony in a variety of circumstances, including instances where public policy is implicated by a key witness too ill to appear in court (see e.g. Horn v Quarterman,
Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness’s presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances. We do not decide here whether Supreme Court’s finding of necessity rested on clear and convincing evidence, as the Appellate Division did not address that question. We only pass on whether Supreme Court had authority to utilize a procedure “necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law § 2-b [3]). As the dissent below correctly noted, “[i]n the absence of direction from the Legislature, Supreme Court retained discretion ... to determine what steps, if any, could be taken to permit this prosecution to proceed notwithstanding the complaining witness’s inability to be physically present in the courtroom” (Wrotten,
Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]) and all other issues raised but not determined on the appeal to that court.
Notes
. The People alternatively sought to examine the complaining witness upon commission in California pursuant to CPL 680.20 and 680.30. This relief was denied because the statute provides that such commission is available only upon the application of a defendant (CPL 680.30).
. Article 65 mandates that, on the motion of either party, a court must consider evidence of a child witness’s vulnerability and, if the court finds the child to be vulnerable, it must permit video testimony (CPL 65.00-65.30).
. See e.g. Bush v State (
Dissenting Opinion
In the absence of any express legislative authorization, the trial court here lacked the authority to permit the complainant to testify from California via live two-way television. Accordingly, I dissent and would affirm the order of the Appellate Division.
The Legislature provided for the taking of testimony by live two-way television only under the limited circumstances set forth under article 65 of the Criminal Procedure Law (L 1985,
“designed to further the aim of insulating child witnesses from the trauma of testifying in open court and also, under certain conditions, from having to testify in the presence of the defendant while, at the same time, fully preserving the defendant’s constitutional rights (see Mem of Dept of Law, Bill Jacket, L 1985, ch 505, at 34-38; Preiser, 1985 Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 65.00, 1990 Supp Pamph, at 485-486)” (id.).
“The Legislature drafted article 65 with full recognition of the necessity of safeguarding a defendant’s confrontation rights and with the explicit aim of providing sufficient limitations and protections to meet the constitutional requirements” (id. at 260, citing Mem of Dept of Law and numerous other memoranda in support, Bill Jacket, L 1985, ch 505). Further, the Legislature explicitly detailed that (1) article 65 applies only in prosecutions for incest or sex crimes under article 130 of the Penal Law where the testifying witness is 14 years of age or younger and found to be vulnerable to psychological harm if compelled to testify in the presence of the defendant, (2) in order for a child witness to be declared vulnerable (in such case, trial court must permit the televised testimony), the trial court must “determine[ ] by clear and convincing evidence that the child witness would suffer serious mental or emotional harm that would substantially impair the child witness’ ability to communicate with the finder of fact without the use of live, two-way closed-circuit television” (CPL 65.20 [2]), and (3) a trial court, in considering a vulnerability application, may consider whether any one or more of 12 enumerated circumstances have been established by clear and convincing evidence (see CPL 65.20 [10]).
In this case the trial court allowed the televised testimony based on its finding that the People established by clear and convincing evidence that complainant was unable to travel to
From the exhaustive nature of the Legislature’s grant of authority permitting courts to receive televised testimony under the specific limited circumstances discussed above, there is a strong inference that the Legislature intended to exclude grants of authority under other circumstances (such as those present here).
“[s]ection 65.10 . . . clarifies that the power to order the use of closed-circuit television in no way supplants the court’s . . . inherent authority to otherwise protect the well-being of the child. The bill leaves undisturbed the court’s power to, among other measures, allow for the presence of a person who can provide emotional support to the child witness when he or she testifies or adjust the courtroom setting to make it more comfortable and less threatening to the child witness” (Mem of Dept of Law, Bill Jacket, L 1985, ch 505, at 21).
In light of the fact that the Legislature has with painstaking detail addressed the subject of when certain absent witnesses can testify by means of two-way television, Judiciary Law § 2-b (3) cannot serve as the basis for granting trial courts the authority to receive such testimony. Section 2-b (3) authorizes a court of record to create new procedures “necessary to carry into effect the powers and jurisdiction possessed by [the court].”
If the inherent powers of the courts are sufficient to authorize the televised testimony in this case or, as stated by the majority, allow a trial court to make a “finding of necessity” (majority op at 38) regarding such testimony, these powers necessarily represent a broad source of authority that would permit trial courts to use live, two-way, televised testimony in ways not contemplated under article 65. That is, there would have been no need for the Legislature to enact article 65 in the first place. For example, a court, under its inherent powers, could be authorized to use such testimony in cases where it would be medically unsafe for any witness, regardless of age or where the witness resides, to travel to the particular New York court where the criminal matter is pending.
In addition, the majority’s use of the phrase “finding of necessity” is confusing. If the majority is arguing that allowing complainant’s testimony was “necessary to carry into effect the powers and jurisdiction possessed by [the court]” (Judiciary Law § 2-b [3]), that argument fails because the majority has not established, outside the circumstances prescribed in CPL article 65, that trial courts have the authority (discretionary or otherwise) to admit the testimony at issue. If the majority is arguing that allowing such testimony furthers an important public policy, they are necessarily referring to a policy decision the Legislature has not to this point made.
Moreover, the majority’s view of the courts’ inherent powers presents a number of problems. First, there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court’s authority to allow the admission of an absent witness’s televised testimony as long as it is “necessary to carry into effect the powers and jurisdiction possessed by [the court]” (Judiciary Law § 2-b [3]). Second, what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or
In sum, because there was no express legislative authorization permitting the complainant to testify from California via live two-way television, the trial court here lacked the authority to admit complainant’s testimony.
The level of specificity employed by the Legislature in enacting article 65 and addressing when witnesses can testify outside the courtroom (by depositions, conditional examinations [CPL article 660] and examinations on commission [CPL article 680]) implies that similar activities not specifically authorized are forbidden.
Dissenting Opinion
I join Judge Jones’s dissent, but add my own because I think that the majority’s opinion is wrong on the constitutional issue as well as the statutory one.
Article I, § 6 of the New York State Constitution (“In any trial in any court whatever the party accused shall ... be confronted with the witnesses against him or her”) and the Sixth Amendment to the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him”) protect the right of confrontation. (I assume here that the content of the state and federal rights is the same; I know of no authority holding otherwise.) If, as the majority holds, what happened in this case is permissible under the Criminal Procedure Law, the constitutional questions presented are whether defendant was denied her right of confrontation and if so whether there is an adequate excuse for the denial. I answer yes to the first question and no to the second.
The right of confrontation includes—indeed, is, at its core— the right to meet one’s accuser face to face (Coy v Iowa,
That conclusion does not resolve the case, because we held in People v Cintron (
In Cintron and Craig, the harm to be avoided—emotional trauma to a child—would be caused by the confrontation itself; there was no way to avoid the harm except by dispensing with face to face confrontation. Here, the threatened harm is to the health of an elderly witness from the stress of travel, and there is a way to avoid that harm without depriving defendant of her confrontation right: bring the accused to the witness, instead of bringing the witness to the accused. In other words, the dilemma could be resolved by allowing the deposition or conditional examination of the complainant to be taken in California, with defendant present. It may well be that that solution is not available under New York’s statutes, but this does not affect the constitutional analysis. New York cannot deprive defendant of her constitutional right by its Legislature’s choice not to provide for a way of accommodating both that right and the witness’s legitimate interest.
Thus, while I agree with Judge Jones that the Appellate Division’s reversal of defendant’s conviction on statutory grounds—a result that has the virtue of avoiding the constitutional issue—was correct, I also believe that, if the constitutional issue is reached, we should decide it in defendant’s favor.
Judges Graffeo, Read and Pigott concur with Judge Ciparick; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Smith concurs; Judge Smith dissents in another dissenting opinion; Chief Judge Lippman taking no part.
Order reversed, etc.