Background: Defendant was convicted of second-degree murder resulting from a street shooting involving gang members in Queens. He claimed at trial that the shooting was justified and that he fired his gun after he was fired upon. The sole eyewitness that Deverow shot into the crowd unprovoked and that he witnessed the encounter shortly after his girlfriend left the scene. Several 911 callers described the shooter driving off in a car and one described a volley of shots.
Issue presented: Whether a series of evidentiary rulings, precluding the defense from introducing evidence, including the 911 calls and the testimony of the sole eyewitness’s girlfriend to rebut his claims about his actions immediately preceding the shooting, denied Deverow the right to present a complete defense.

Held: In a unanimous reversal, authored by Judge Singas, the Court of Appeals ruled that there were four evidentiary preclusions which deprived Deverow of a meaningful opportunity to present a defense. This constitutional right is guaranteed by the Due Process Clause of the 14th Amendment, as well as the Compulsory Process and Confrontation Clauses of the 6th Amendment. Chambers v. Mississippi, 410 US 284, 302 (2011); Crane v. Kentucky, 476 US 683, 690 (1986). The preclusion from introducing three 911 calls, which should have come in under the present sense impression hearsay exception was erroneous. See, People v. Brown, 80 NY2d 729, 736 (1993); People v. Cantave, 21 NY3d 374, 382 (2013) (recognizing that out-of-court statement must be made by the person perceiving the event as it’s unfolding and must be corroborated by independent evidence establishing its reliability). All of the challenged calls were admissible because they were contemporaneous to the events described and adequately corroborated. It was also improper for the court to preclude the defense from calling the sole eyewitness’s girlfriend. The trial court’s ruling that her testimony would be collateral was wrong because her testimony was probative of the eyewitness’s opportunity to view the events he described. As the evidence presented against the defendant’s justification defense was not overwhelming, a new trial was ordered.

CAL Observes: Wonders never cease. A unanimous, pro-defense decision authored by Singas. Apparently the combination of errors and the extent of the preclusion was too much even for the career prosecutors presently occupying the Court. While the case involves the straightforward application of established precedents, it is a useful reminder that sometimes individual trial errors can add up to constitutional denials sufficient to persuade the most skeptical audience. Also, it’s interesting that leave was granted in this case at all, given that there did not seem to be any open questions of law; the application of the present sense impression rule is pretty standard stuff; as is the application of the collateral evidence doctrine. But a good decision on black letter law that offers some hope.