| People v Crevelle |
| 2015 NY Slip Op 01661 [125 AD3d 995] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Yohance Crevelle, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, HowardB. Goodman, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered May 14, 2012, convicting him of attempted murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of attempted murder in the second degree beyond a reasonabledoubt (Penal Law §§ 110.00, 125.25 [1]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5];People v Danielson, 9 NY3d 342, 348 [2007]), we nevertheless accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]).
However, we agree with the defendant that the trial court erred in allowing theprosecution to call alibi rebuttal witnesses despite the prosecutor's failure to providereciprocal notice, or to show good cause for providing late reciprocal notice as requiredby CPL 250.20.
Pursuant to CPL 250.20 (1), the defendant served upon the prosecution written"notice of alibi." The prosecution did not serve or file a list of any alibi rebuttal witnessesas required by CPL 250.20 (2). After the defendant's girlfriend testified that he was homewith her at the time of the subject shooting, the prosecutor stated her intent to call alibirebuttal witnesses and requested an adjournment for that purpose. Among otherwitnesses, the prosecutor sought to call a cell phone company employee who wouldestablish, through the defendant's cell phone records, that the defendant was not at hisgirlfriend's home as she claimed, but rather, was in the vicinity of the shooting when itoccurred. The witness additionally would establish that during the relevant time, callswere placed between the defendant's cell phone and the girlfriend's home phone, thusshowing that the two were not together.
[*2] When asked by the court why she had not provided the required alibi rebuttalnotice, the prosecutor stated, among other things, that she "tactically chose" to not speakwith the defendant's girlfriend before trial and she had not been certain she would be ableto establish the foundation necessary for the People's rebuttal case. Over the defendant'sobjection, the court granted the adjournment and allowed the People to call rebuttalwitnesses to establish the defendant's whereabouts via his cell phone records (cf.CPL 250.20 [3], [4]), although it held that the People could use the evidence only inrebuttal and not as evidence in its case-in-chief (cf. CPL 260.30 [7]).
In Wardius v Oregon (412 US 470 [1973]), decided in 1973, the UnitedStates Supreme Court held that "the Due Process Clause of the Fourteenth Amendmentforbids enforcement of alibi rules unless reciprocal discovery rights are given to criminaldefendants" (id. at 472). Notice-of-alibi statutes are required to include reciprocaldiscovery provisions because "[t]he State may not insist that trials be run as a 'search fortruth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecyfor its own witnesses. It is fundamentally unfair to require a defendant to divulge thedetails of his own case while at the same time subjecting him to the hazard of surpriseconcerning refutation of the very pieces of evidence which he disclosed to the State"(id. at 475-476). Thereafter, in 1974, the New York State Legislature amended itsown notice of alibi statute to include reciprocal provisions as set forth in CPL 250.20 (2),(4) and (5) (see Peter Preiser, Practice Commentaries, McKinney's Cons Laws ofNY, Book 11A, CPL 250.20).
CPL 250.20 (1) provides, among other things, that within eight days of service of ademand by the People, a defendant "must" serve upon the People a "notice of alibi," andthat "[f]or good cause shown, the court may extend the period for service of the notice."The reciprocal provision, CPL 250.20 (2), provides, among other things, that "[w]ithin areasonable time after receipt of the defendant's witness list but not later than ten daysbefore trial," the People "must" serve and file a list of the witnesses the People propose tooffer in rebuttal to discredit the defendant's alibi at the trial, and that "[f]or good causeshown, the court may extend the period for service" of the People's witness list.
CPL 250.20 (3) provides that if the defendant calls an alibi witness at trial withouthaving first served the requisite notice pursuant to CPL 250.20 (1), the court "mayexclude any testimony of such witness," or "may in its discretion receive such testimony,but before doing so, it must, upon application" of the People, "grant an adjournment notin excess of three days" (CPL 250.20 [3]). CPL 250.20 (4) provides that the provisionsof subdivision (3) "shall reciprocally apply" when the People seek to offer alibi rebuttalwitnesses without having given the requisite notice pursuant to CPL 250.20 (2).
Here, the People contend, in effect, that, unlike CPL 250.20 (2), which requires thePeople to show "good cause" for an extension of time to serve the list of alibi rebuttalwitnesses, CPL 250.20 (3) and (4) do not require such a showing for the court to exerciseits discretion in receiving such testimony absent any compliance with the noticerequirement. We disagree (cf.People v Harrison, 28 AD3d 581 [2006]; People v Tucker, 21 AD3d 387, 388 [2005]). Aconstruction of the statute which requires good cause to be shown before trial, but notduring trial, when late notice would be most prejudicial, is both contrary to theplain meaning of the statute, as well as contrary to the intent of the Legislature inamending the statute to comply with the Due Process Clause (see Wardius vOregon, 412 US 470 [1973]). To hold otherwise would mean that CPL 250.20 (3)and (4) completely eviscerate the timeliness of notice requirements of CPL 250.20 (1)and (2).
Further, contrary to the People's contention, this Court's decision in People v Taylor (114 AD3d886 [2014]) and the First Department's decision in People v Vasquez (189AD2d 578 [1993], mod sub nom. People v Perez, 83 NY2d 269 [1994]) do notset forth a different construction of the statute. Those cases do not address the issue ofwhether good cause was shown in support of the trial court's exercise of discretionpursuant to CPL 250.20 (4) to allow alibi rebuttal evidence. Thus, this Court's decision inTaylor should not be interpreted to hold that the prosecution may offer alibirebuttal testimony at trial where the prosecutor has neither complied with the noticerequirement of CPL 250.20 (2), nor shown good cause for failure to do so. Indeed,appellate courts have routinely upheld [*3]a trial court'sdecision, pursuant to CPL 250.20 (3), to preclude a defendant from calling alibiwitnesses who were not noticed pursuant to CPL 250.20 (1) and where no good causewas shown for the delay (seePeople v Wahhab, 84 AD3d 982, 984 [2011]; People v Reyes, 49 AD3d565, 566 [2008]; People vMorgan, 48 AD3d 703, 704 [2008]; People v Louisias, 29 AD3d 1017, 1019 [2006]; Peoplev Harrison, 28 AD3d at 582; People v Tucker, 21 AD3d at 388; People vWalker, 294 AD2d 218, 219 [2002]; People v Mensche, 276 AD2d 834, 836[2000]; People v Aviles, 234 AD2d 466, 467 [1996]; People v Martinez,222 AD2d 702, 703 [1995]; People v Delarosa, 215 AD2d 496, 497 [1995]).Since the discretion exercised by the trial court pursuant to CPL 250.20 (4) is contingentupon the "reciprocal[ ]" application of the requirements of subdivision (3), the Peoplemust also establish good cause for their failure to provide the notice required by CPL250.20 (2). Moreover, as a matter of due process, the same requirements imposed upon adefendant's calling of alibi witnesses are equally applicable to the People with respect tocalling alibi rebuttal witnesses (see Wardius v Oregon, 412 US 470 [1973]).
Therefore, where the People have failed to comply with the notice requirement ofCPL 250.20 (2), a court may exercise its discretion, upon application of the Peopleduring the trial, to permit alibi rebuttal witnesses to testify only upon a showing of goodcause. In considering whether to exercise its discretion to permit the evidence, the courtmay consider, among other relevant factors, a reasonable excuse for the delay, whetherthe late notice was willful or an attempt to gain strategic advantage, and any prejudice tothe defendant resulting from the delayed notification (see People v Green, 70 AD3d 39, 45 [2009]; People v Ortiz, 41 AD3d114 [2007]; People vJiminez, 36 AD3d 962, 964 [2007]; People v Wiener, 271 AD2d 319[2000]).
Here, the prosecutor failed to show good cause for the late notice of rebuttalwitnesses. Prior to providing notice, the prosecutor was served with the defendant's"notice of alibi," knew the substance of the defendant's alibi defense, and knew whatevidence the prosecution would present in rebuttal (cf. People v Lenihan, 30 Misc 3d 289, 294-295 [2010];Fox v Mann, 71 F3d 66, 69-71 [1995]). Indeed, on cross-examination of thedefendant's witness, the prosecutor used the cell phone records she ultimately submittedin rebuttal to establish the foundation for the rebuttal case. Moreover, based upon theexcuse given by the prosecutor, it is evident that the failure to give notice as required bythe statute was willful and designed to gain strategic advantage (cf. Taylor vIllinois, 484 US 400, 415 [1988]; People v Brown, 306 AD2d 12, 13[2003]). Under these circumstances, the defendant was prejudiced by the failure of thePeople to provide him with the requisite notice. Since the prosecutor failed to show goodcause for late notice, the trial court improperly allowed the People to present the alibirebuttal testimony (cf. People v Wahhab, 84 AD3d at 984; People vReyes, 49 AD3d at 566; People v Morgan, 48 AD3d at 704; People vLouisias, 29 AD3d at 1019; People v Harrison, 28 AD3d at 582). Becausethe defendant was deprived of a fair trial by this error, reversal is required (see Peoplev Crimmins, 36 NY2d 230, 237-238 [1975]).
Since a new trial is being ordered, we note that, contrary to the defendant'scontention, the evidence offered in rebuttal did not exceed the proper scope of rebuttalevidence. Rather, the evidence was offered to contradict or disprove an affirmative factwhich the defense had endeavored to prove (see People v Harris, 57 NY2d 335,345 [1982]; People v Ortiz, 133 AD2d 853, 854 [1987]; People vStrawder, 106 AD2d 672, 674 [1984]). In addition, the trial court did notimprovidently exercise its discretion in allowing the People to elicit certain backgroundevidence, which completed the narrative of events leading up to the charged crime (cf. People v Gamble, 18 NY3d386, 398 [2012]; People vDorm, 12 NY3d 16, 19 [2009]; People v Armstead, 118 AD3d 903, 904 [2014]). Althoughthe defendant's challenge to certain summation comments is unpreserved for appellatereview (see CPL 470.05 [2]), we further note that, in violation of the trial court'sexpress rulings, the prosecutor improperly argued to the jury that the evidence offered inrebuttal was additional proof of the defendant's guilt and that the defendant committedthe subject crime as retribution for his brother's murder.
In light of our determination, we need not address the defendant's remainingcontention that the sentence imposed was excessive. Rivera, J.P., Leventhal,Hinds-Radix and Barros, JJ., concur.