| People v Butts |
| 2020 NY Slip Op 03243 [184 AD3d 660] |
| June 10, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Butts, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeborahDowling, J.), rendered January 26, 2016, convicting him of murder in the second degree,burglary in the second degree, assault in the second degree, and criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial.
On November 8, 2013, at approximately 6 p.m., William Jordan, Walter Lindsay, and severalothers were in Jordan's apartment in the Gowanus area of Brooklyn. Four intruders, concealingtheir faces with scarves and masks, entered the apartment, two of whom displayed guns, anddemanded money and marijuana. One of the intruders shot Lindsay in the back. Jordan wasfatally shot in the head. After Jordan was shot, the intruders fled. When interviewed by the policeon the night of the incident, Lindsay claimed that he could not identify the intruders. Eleven dayslater, Lindsay admitted to the police that he recognized three of the intruders as being thedefendant and his two codefendants, and that he had not come forward with this informationearlier because doing so would cause problems for his family and he feared for their safety.Following a jury trial, the defendant was found guilty of murder in the second degree, burglary inthe second degree, assault in the second degree, and criminal possession of a weapon in thesecond degree. The defendant was sentenced on January 26, 2016, and appeals from thejudgment of conviction.
The defendant's contention that his conviction of assault in the second degree was notsupported by legally sufficient evidence is unpreserved for appellate review (see People v Hawkins, 11 NY3d484, 492 [2008]; People vEasley, 171 AD3d 785 [2019]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we find that it was legally sufficient to establishthe defendant's guilt of assault in the second degree beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d at 348), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People vRomero, 7 NY3d 633, 644 [2006]). Upon reviewing the record here, we are satisfiedthat the verdict of guilt as to assault in the second degree was not against the weight of theevidence (see id. at 644).
Under the circumstances of this case, we conclude that the defendant was deprived of a fairtrial. The right to present a defense constitutes "a fundamental element of due process of law"(Washington v Texas, 388 US 14, 19 [1967]), and it is one of the "minimum essentials ofa fair trial" (Chambers v Mississippi, 410 US 284, 294 [1973]; see People v Gibian, 76 AD3d583, 585 [2010]). "The right to offer the testimony of witnesses, and to compel theirattendance, if necessary, is in plain terms the right to present a defense, the right to present thedefendant's version of the facts as well as the prosecution's to the [trier of fact] so it may decidewhere the truth lies" (Washington v Texas, 388 US at 19; see People v Taylor, 40 AD3d 782,784 [2007]).
"Once a proper foundation is laid, a party may show that an adversary's witness has, onanother occasion, made oral or written statements which are inconsistent with some material partof the trial testimony, for the purpose of impeaching the credibility and thereby discrediting thetestimony of the witness" (People vBradley, 99 AD3d 934, 936 [2012] [internal quotation marks omitted]; see People vDuncan, 46 NY2d 74, 80 [1978]; Jerome Prince, Richardson on Evidence§ 6-411 [Farrell 11th ed]). "Since evidence of inconsistent statements 'is oftencollateral to the ultimate issue before the [trier of fact] and bears only upon the credibility of thewitness, its admissibility is entrusted to the sound discretion of the Trial Judge' "(People v Bradley, 99 AD3d at 937, quoting People v Duncan, 46 NY2d at 80).Indeed, "[i]t is well established that the trial courts have broad discretion to keep the proceedingswithin manageable limits and to curtail exploration of collateral matters" (People v Hudy,73 NY2d 40, 56 [1988]). However, "the trial court's discretion in this area is circumscribed bythe defendant's constitutional rights to present a defense and confront his accusers" (id. at57, citing Davis v Alaska, 415 US 308 [1974]; see Chambers v Mississippi, 410US 284 [1973]; Washington v Texas, 388 US 14 [1967]; Pointer v Texas, 380 US400 [1965]; People v Gissendanner, 48 NY2d 543, 546 [1979]). "Thus, while a trial courtmay preclude impeachment evidence that is speculative, remote, or collateral, '[that] rule. . . has no application where the issue to which the evidence relates is material inthe sense that it is relevant to the very issues that the [trier of fact] must decide' "(People v Bradley, 99 AD3d at 937, quoting People v Knight, 80 NY2d 845, 847[1992]).
"Where the truth of the matter asserted in the proffered inconsistent statement is relevant to acore factual issue of a case, its relevancy is not restricted to the issue of credibility and itsprobative value is not dependent on the inconsistent statement" (People v Bradley, 99AD3d at 937). Under such circumstances, the right to present a defense may "encompass[ ] theright to place before the [trier of fact] secondary forms of evidence, such as hearsay" (Peoplev Gibian, 76 AD3d at 585, citing Chambers v Mississippi, 410 US at 294; seePeople v Esteves, 152 AD2d 406, 413-414 [1989]). "Indeed 'where constitutional rightsdirectly affecting the ascertainment of guilt are implicated, the hearsay rule may not be appliedmechanistically to defeat the ends of justice' " (People v Bradley, 99 AD3d at937, quoting Chambers v Mississippi, 410 US at 302; see People v Robinson, 89NY2d 648, 650 [1997]; People vAbdul, 76 AD3d 563, 565 [2010]; People v Oxley, 64 AD3d 1078, 1083-1084 [2009]).
Applying these principles here, we conclude that the Supreme Court should not haveprecluded the defendant from calling Elliot Boyd, the brother of Lindsay, as a witness to impeachthe testimony of Lindsay, who was the only witness who identified the defendant as one of theintruders. The court precluded Boyd's proffered testimony on the grounds that the defense failedto lay a proper foundation for impeachment with Boyd's testimony, that Boyd had been present inthe courtroom during Lindsay's testimony, and that the testimony would be hearsay. However,defense counsel had failed to lay a proper foundation because he was not aware of the profferedtestimony while Lindsay testified; it was only subsequent to Lindsay having completed histestimony that Boyd contacted counsel claiming that Lindsay had told him repeatedly, bothimmediately after the incident and in the ensuing months before trial, that he had not seen theintruders' faces because they wore masks. Moreover, the prosecutor initially volunteered to recallLindsay to enable the defense to lay the foundation. In addition, the proffered testimony was in"substantial contradiction" to Lindsay's testimony that he recognized the defendant even thoughhe had a scarf covering his face, because at some point during the incident the defendant's facebecame uncovered (People v Bradley, 99 AD3d at 937 [internal quotation marksomitted]; Jerome Prince, Richardson on Evidence § 6-411 [Farrell 11th ed];CJI2d[NY] Credibility of Witnesses—Inconsistent Statements). Therefore, the profferedtestimony was sufficiently inconsistent to be relevant to the issue of Lindsay's credibility (seePeople v Bradley, 99 AD3d at 938; Jerome Prince, Richardson on Evidence§ 6-411 [Farrell 11th ed]; CJI2d[NY] Credibility of Witnesses—InconsistentStatements). Furthermore, testimony as to whether Lindsay told Boyd that he did not see theintruders' faces went directly to the heart of the most contested aspect of thiscase—whether the defendant was one of the intruders. As such, the precluded evidencewas not only relevant to Lindsay's credibility, it was also "relevant to the very issues that the[trier of fact] must decide" (People v Knight, 80 NY2d 845, 847 [1992]; see People v Jaikaran, 95 AD3d903 [2012]; People v Gomez,79 AD3d 1065, 1067 [2010]; People v Perez, 40 AD3d 1131, 1132 [2007]; People v Ocampo, 28 AD3d 684,686 [2006]; People v Gibbs, 215 AD2d 689, 689-690 [1995]). Further, there is noevidence that allowing Boyd to testify would have prejudiced the People notwithstanding thatBoyd was present in the courtroom during Lindsay's testimony (see People v Scheck, 24 AD3d 574[2005]).
Under the circumstances present here, the preclusion of such material and exculpatoryevidence deprived the defendant of a fair trial (see Chambers v Mississippi, 410 US at302; People v Robinson, 89 NY2d at 650; People v Bradley, 99 AD3d at 938;People v Abdul, 76 AD3d at 565; People v Oxley, 64 AD3d at 1083-1084; cf. People v Fields, 89 AD3d 861,862 [2011]). Since the evidence of guilt was not overwhelming, this error was not harmless(see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Accordingly, the judgment must be reversed and the matter remitted to the Supreme Court,Kings County, for a new trial.
Since there must be a new trial, we note that the defendant's contention that he was deprivedof a fair trial based on the prosecutor's reference to his nickname, "Maniac," is partiallyunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, without merit.The defendant's nickname was used only a few times over the course of an approximately 10-daytrial, and then only by Lindsay—the witness who testified that he knew the defendant byhis nickname and who identified the defendant as one of the perpetrators—and by theprosecutor, in connection with Lindsay's testimony. Based on the circumstances, the use of thedefendant's nickname, while improper, was not so egregious as to deprive the defendant of a fairtrial (see People v Wilson, 141AD3d 737, 739 [2016]).
We need not reach the defendant's remaining contentions, including the contention raised inhis pro se supplemental brief, in light of our determination. Roman, J.P., Cohen, Miller andChristopher, JJ., concur.