| People v Cruz |
| 2008 NY Slip Op 03503 [50 AD3d 490] |
| April 22, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v FlorCruz, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered October 24,2005, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree, and sentencing him, as a second felony offender, to a term of five years,unanimously reversed, on the law, and the matter remanded for a new trial.
The court improperly precluded material evidence offered by defendant. An undercoverofficer testified that after he entered a parking garage and announced a desire to purchase drugs,defendant followed him out of the garage to a location about a block away, where defendantnegotiated a drug transaction, departed and returned a few minutes later to consummate the sale.Defendant sought to call as a witness his 19-year-old daughter, who would have testified to avery different scenario. According to defendant, his daughter would have testified that at theapproximate time of the incident, there was a prearranged meeting in front of the garage betweendefendant, the proposed witness and his younger daughter, after which defendant walked awayfrom the garage with his two daughters, met up with friends on the street, and assisted hisdaughters in obtaining a taxi.
The court precluded this proposed testimony on the ground that it either constituted alibievidence, for which defendant failed to serve the notice required by CPL 250.20, or that, if it didnot constitute an alibi, it was irrelevant. On appeal, the People concede that the precludedtestimony was not alibi testimony, but argue that it was properly precluded as lacking probativevalue. Their principal argument is that, given the spatial and temporal factors, the eventsdescribed by the undercover officer and those set forth in the proposed testimony could have bothhappened.
While the daughter's testimony, if credited, would not have rendered the prosecution scenarioimpossible, it would have rendered that scenario unlikely, supported defendant's defense, andcorroborated his testimony (see People v Cuevas, 67 AD2d 219, 223-225 [1979]; seealso People v Jack, 74 NY2d 708 [1989]). There is no indication that defendant sought tocall his daughter primarily to garner sympathy from the jury, or that the testimony would havebeen unduly prejudicial to the People. Accordingly, the evidence should not have been precludedon the ground of irrelevance.[*2]
Furthermore, to the extent the court considered thedaughter an alibi witness, under the circumstances of the case it should have admitted hertestimony after giving the People a reasonable opportunity to prepare (see CPL 250.20[3]). Counsel's failure to serve an alibi notice does not appear to have been an attempt to obtain atactical advantage, but instead appears to have resulted from counsel's good faith belief that nonotice was required as a matter of law, and the absence of notice would not have causedirreparable prejudice to the People (see Taylor v Illinois, 484 US 400, 414-415 [1988];Noble v Kelly, 246 F3d 93, 98-100 [2d Cir 2001], cert denied 534 US 886[2001]).
We also find that the error in precluding this testimony was not harmless. We decline toreach any other issue. Concur—Lippman, P.J., Saxe, Gonzalez and Nardelli, JJ.