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Defendant Who Was Not Permitted To Cross Examine Police Officers Was Denied a Fair Trial- People v Rouse, 2019 NY Slip Op 08522


In this case, the Court of Appeals overturned the decisions of the Appellate Division and trial court and determined that in an attempted murder case the defendant was entitled to challenge the credibility of the law enforcement witnesses.

The incident that resulted in the arrest of the defendant started in the early morning of August 11, 2013. Someone followed a group of teenagers in the Bronx and fired a single gunshot at them. No one was struck or injured.  It just so happened that two police officers were patrolling the area and identified the shooter as the defendant. The officers testified that while they saw the defendant raise the gun to eye level, fire it, drop it, and flee.  One of the officers immediately picked up the gun. After unsuccessfully chasing him on foot, the two officers later found him while driving around and arrested him. The gun was not tested for fingerprints or for DNA evidence.

The defendant was charged with attempted murder in the second degree, criminal use of a firearm in the first degree, and two counts of criminal possession of a weapon in the second degree. Because the gun did not have the defendant’s DNA or fingerprints, the prosecution’s case rested heavily on the testimony of the two police officers who provided eyewitness testimony that the defendant was the shooter.  They both testified that they saw the defendant fire the gun from eye level. The also both testified that they had a clear, well-lit view of defendant at the time of the shooting.

The defendant was convicted of attempted murder in the second degree, criminal use of a firearm in the first degree, and two counts of criminal possession of a weapon in the second degree.  The defendant appealed, arguing that he was denied a fair trial because the trial court did not allow him the impeach the testimony of the two officers. The Appellate Division affirmed the conviction. The defendant appealed. The Court of Appeals disagreed with the Appellate Division.

The Court of Appeals stated that the defendant should be permitted to ask a law enforcement officers about allegations that the officer had committed prior bad acts provided that the defendant had a good faith basis for the inquiry. In fact, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination.

At the suppression hearing it was determined that one of the officer’s had misled a federal  prosecutor in an unrelated federal criminal proceeding with respect to his own involvement in a ticket-fixing scheme. In addition, the officer also acknowledged that the firearm at issue in the federal proceeding was suppressed. In that case, the officer and his partner had recovered the weapon, just like in the present case. While the fact that the officer was disciplined by the NYPD for his involvement in the ticket-fixing scheme, the defendant was not allowed to inquire about the officer’s lies to the federal prosecutor regarding those activities.

The Court of Appeals found that the trial court abused its discretion in not permitting the defendant to inquire about the lies the officer had told to the federal prosecutor because the defendant had a good faith basis for the inquiring into the officer’s truthfulness in that case to the extent that the officer’s suppression testimony acknowledged that he had not been completely honest with the federal prosecutor.

The impact of the trial court’s decision to preclude the defendant’s proposed inquiries into the officer’s credibility was not harmless error. There was not a significant amount of evidence against the defendant other than the testimony of the officers.  Although the gun used in the shooting was seized almost immediately after that incident, it did not have fingerprints or the defendant’s DNA.  In other words, had the defendant been able to challenge the credibility of the officers, it was possible that the defendant would have been acquitted.  As a result, the Court of Appeals ordered a new trial.


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