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Court Decides Whether to Allow Televised Testimony

A New York Criminal Lawyer said in this Criminal case, defendant appealed to determine whether Supreme Court erred in allowing the complainant to give televised testimony in defendant’s assault trial.

A New York Criminal lawyer said that Defendant, a home health aide, briefly cared for the complainant’s wife in the couple’s Bronx home until the wife moved to a nursing home. Approximately 2½ months after the wife moved to the nursing home, defendant, who maintained a relationship with the couple, went to the complainant’s house. While both defendant and the complainant testified that defendant helped the complainant prepare snacks to bring to the wife, they offered dramatically different accounts of what happened at the house. The complainant testified that defendant assaulted him with a hammer and demanded (and took) money from him before fleeing the house. Defendant testified that the complainant grabbed her breasts and that, to get his hands off her, she “picked up something and hit him with it.” Defendant denied demanding or taking money from the complainant.

A New York Criminal Lawyer said the complainant, while physically in California, gave the televised testimony. The complainant could see the courtroom, including the Judge and defendant, although the extent to which the witness could see the courtroom participants is in dispute, and could hear the proceedings in the courtroom. Those in the courtroom could see and hear the complainant. Ultimately, the jury considered four counts: one count of assault in the first degree, one count of assault in the second degree, one count of robbery in the first degree and one count of robbery in the second degree. The jury acquitted defendant of assault and robbery in the first degree but convicted her of assault in the second degree. On her appeal from her conviction of assault in the second degree, defendant’s principal contention is that Supreme Court erred in permitting the complainant to give televised testimony.

A Manhattan Criminal Lawyer said that even assuming that defendant otherwise had a full opportunity to cross-examine her accuser, it does not follow that her Sixth Amendment right of confrontation was not violated. The Confrontation Clause of the Sixth Amendment “provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination”. The former right “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact”, and, due to the undeniably “profound effect upon a witness of standing in the presence of the person the witness accuses”, “serves much the same purpose” as the latter right in “ensuring the integrity of the fact-finding process”.

A Bronx Criminal Lawyer said the defendant challenges the finding that the witness was unavailable to testify due to poor health, and stresses that the prosecution’s expert, when asked whether the witness would survive a trip back to New York responded “You know, I suppose he would.” In addition, defendant offers two other fact-based reasons, both of which she raised in Supreme Court, to support her contention that the televised testimony violated her Sixth Amendment right of confrontation. First, defendant maintains that the witness was unable to see clearly the participants in the courtroom in New York. Second, defendant objects, albeit not in the argument section of her main brief, that no New York court officer or any other New York judicial official was present in the room in California to supervise the proceedings and make sure that the witness was not improperly communicated with during the televised testimony.

If trial courts in New York have the inherent authority to admit the live, two-way, televised testimony of elderly or infirm witnesses who are unable to appear in court without endangering their lives, at least four confounding questions arise. (1) Was the enactment of CPL article 65 unnecessary in the sense that even without article 65 trial courts could have exercised that inherent authority and received the live, two-way, televised testimony of child witnesses in certain sex crime cases under circumstances identical or similar to those specified by the Legislature in article 65? (2) If the answer to the first question is yes, can that answer be reconciled with the fundamental precept of separation of powers committing critical public policy judgments exclusively to the legislative.

If the inherent powers of the Judiciary are sufficient to authorize the televised testimony in this case, it must be that these powers represent a broad source of authority that would permit trial courts to expand the use of live, two-way, televised testimony in other circumstances not specified in article 65. The dissent stresses that “the record supports the hearing court’s finding that it would be medically unsafe and potentially life-threatening for the victim, a man in his eighties afflicted with severe health problems and residing in a California assisted living facility, to travel to New York.” But if the expanded use of televised testimony in this case is authorized by the inherent powers of the Judiciary, it necessarily follows that these powers would authorize its expansion, for example, to all cases in which it would be “medically unsafe and potentially life-threatening” for any witness, regardless of age or where the witness resides, to travel to the particular court in New York in which the prosecution is pending.

Jurisprudence provides clear, albeit indirect, support for our position. In the case, the court concluded that CPL 60.44, which expressly authorizes a court to permit a witness less than 16 years old to use an anatomically correct doll in testifying in prosecutions for certain sex crimes and other offenses, did not preclude the court from permitting the use of such a doll to facilitate the testimony of an elderly and aphasic witness in a sodomy prosecution (id. at 489-490). As the authorities cited by the court make clear (id. at 490), and as cannot be doubted in any event, trial courts always have had discretionary authority to allow the use of demonstrative evidence.

Accordingly, the decision to permit the receipt into evidence and use of an anatomically correct doll is a mere instance of that existing authority. It no more required legislative authorization than did the decision of courts with the advent of color photography to permit the receipt into evidence and use of color rather than black and white photographs. Moreover, also unlike the decision to permit the use of the televised testimony of a witness in a criminal case, the decision to permit the use of this particular form of demonstrative evidence does not entail the exercise of any significant policy-making authority and does not affect, let alone curtail, a substantive constitutional right of the defendant.

“The Legislature specifically considered and expressly provided for enforcement mechanisms. As Senator Pisani’s sponsoring memorandum makes clear, the provisions of title 4 were enacted as the `comprehensive’ means by which the statute accomplishes its objectives. Given this background, it would be inappropriate for us to find another enforcement mechanism beyond the statute’s already `comprehensive’ scheme” (id.).

“[A]lthough CPL 670.10 is largely a codification of common-law principles, this court has already rejected the argument that the statutory terms and their fair import are not exclusive. As the court has noted, the statute contains three carefully worded and enumerated exceptions to the general rule excluding hearsay evidence, suggesting that the Legislature intended the statute’s reach to be relatively narrow and limited to its precise terms. Further, the general rule that in criminal matters the courts must be more circumspect counsels against a construction that would extend CPL 670.10 well beyond the fair import of its language”

Article 680 contains no exception to that prohibition for cases in which either the witness’ testimony would be critical to the prosecution’s case or the witness cannot travel to New York without endangering his or her life or health. At the very least, that prohibition would be undermined if the People can obtain an order from a trial court authorizing the receipt into evidence of the televised testimony of a prosecution witness who resides outside the state without regard to whether the defendant has sought a similar order relating to a defense witness.

Moreover, and in any event, as defendant expressly argued in opposing the People’s motion for an order permitting the witness to testify by way of a live two-way televised procedure, “[t]he legislature has already addressed the remedies available when a witness is physically present outside New York.” Because the Legislature specifically addressed that circumstance in article 680, the Judiciary lacks authority to address it and provide another. The receipt of the televised testimony in this case can be reconciled with the strictures of article 680 only by indulging the transparent fiction that despite the physical presence of the witness in California, he was not outside New York because his testimony was being transmitted by television to a courtroom in New York.

Finally, if an exercise of our interest of justice powers were necessary to decide this appeal on the ground that the receipt of the televised testimony was unauthorized, we would do so. At the very least, even assuming that defendant’s Sixth Amendment right of confrontation was not violated, she was denied a valuable component of that right. In our judgment, in the absence of express legislative authorization, depriving defendant of a face-to-face meeting with her principal accuser-indeed, the person whose testimony was necessary for the prosecution to make out a prima facie case-tainted the fairness of the trial.

Accordingly, the judgment of Supreme Court, Bronx County convicting defendant of assault in the second degree, and sentencing her to a term of five years, should be reversed, on the law, and the matter remanded for a new trial.

In case of abuse and other forms of assaults, you can consult our New York Assault attorneys here in Stephen Bilkis and Associates. We will file the necessary complaints against the people who abused you. Our New York Criminal lawyers are always willing and eager to hear your predicaments, don’t hesitate to call us for consultation.

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