AD1 order dated February 24, 2015, affirming judgment of conviction. Decision below: 125 AD3d 537, 4 NYS3d 186. Abdus-Salaam, J., granted leave September 4, 2015.

ISSUES PRESENTED: (1) The court’s erroneous ruling deprived appellant of a fair opportunity to test the credibility of the lead investigating detective and the accuracy of his account, by (a) prohibiting defense counsel from cross-examining the detective about the facts underlying three federal false arrest lawsuits brought against him; and (b) ruling that, by impeaching the detective with his sworn statement that it was appellant’s brother, not appellant, that had committed two of the sales, the door was opened to evidence of two uncharged sales; thereby depriving appellant of his rights to due process and to cross-examine and confront witnesses(cont’d on additional sheet). (2) Appellant was incorrectly sentenced as a second felony drug offender whose prior conviction was a violent felony, because his prior conviction for criminal possession of a weapon in the third degree, under Penal Law § 265.02(4), is not a violent predicate felony under Penal Law § 70.02(1). (Assigned counsel: Mark W. Zeno & Robert S. Dean , Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10006.)

Issue before the Court: Whether a defendant has a right to cross-examine police officers about their involvement in misconduct underlying claims of false arrest and excessive force as prior bad acts bearing on the officers’ credibility.

 

Held: Law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination: provided defense counsel has a good faith basis for the inquiry, and subject to the court’s discretion to fix reasonable limits, the defense may questions police officers about their involvement in actions underlying lawsuits brought against them by others they have arrested.  

 

CAL Observes:

In a ruling that traced the constitutional foundations for cross-examination and the right to impeach a witness by inquiring about facts relevant to their general credibility, the Court led with the unremarkable proposition that police witnesses should be subject to the same impeachment rules as other witnesses. The Court ruled that a police witness’s prior bad acts can be an appropriate subject for cross-examination even if they have not been proven in a judicial proceeding: allegations alone can present a good-faith basis for questioning. The Court read “bad act” broadly, pointing out that prior bad acts need not be criminal or immoral to be relevant, so long as they suggest that the officer might place her individual self interest above that of society. Participation in false arrests, unauthorized searches, excessive force, and fabrication of evidence, were all appropriate grounds for inquiry. While defense counsel in each of the cases had sought permission in advance to question the officers with a formal proffer, the Court found no such application necessary; holding instead that defense counsel could simply have begun questionning the officers and, upon objection, made a showing of relevance and good faith. _ N.Y.3d _, 2016 WL 3494644 at n.2. In each case, the Court found error: although a court has discretion to place reasonable limits on cross-examination to avoid confusing the issues and misleading the jury, the courts here had abused their discretion by forbidding the line of inquiry entirely. While the Court found the error harmless in Smith and McGhee, it reversed in Ingram.