AD1 order dated April 9, 2013, affirming judgment of conviction. Decision below: 105 AD3d 476, 963 NYS2d 91. Rivera, J., granted leave April 2, 2014.

ISSUE PRESENTED: Whether police testimony that Mr. DeJesus was a “specific suspect” before the police spoke to the prosecution witness who identified him, admitted to show “why the police focused on [Mr. DeJesus],” was, as defense counsel argued, a “confrontation clause violation,” under Crawford v. Washington, 541 U.S. 36 (2004), because it “clearly indicat[ed]” that some “unknown anonymous source” had named Mr. DeJesus as the shooter.” (Assigned counsel: Abigail Everett & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)

 

Issue Before the Court: Whether the Confrontation Clause permits the police to testify that they got information that led them to suspect the defendant as long as they don’t specify the source or content of the out-of-court information.  In other words, is it ok for the police to testify that the defendant “became a suspect” during the course of the investigation in a way that makes it clear that something in particular focused their suspicion on the defendant? In this case, the detective got a call from the victim’s family reporting an anonymous tip. The jury heard only that the defendant became a “specific” suspect “at 4:00 PM” but was not told what precipitated the police suspicion.

 

Held: Under the Confrontation Clause, in order for inferential hearsay to be “testimonial,” the disputed testimony must be specific enough that it can be characterized as an “out-of-court substitute for trial testimony.” Drawing from the Second Circuit standard, in Ryan v. Miller, 303 F.3d 231 (2d Cir. 2003), the Court of Appeals found that the prosecutor, in DeJesus, did not solicit the testimony in a way that “made the source and content of the [out-of-court] conversation clear.” In contrast, in the winning companion case, People v. Garcia, the police testified that the deceased’s sister had told them that he was having a problem with the defendant. That was a testimonial out-of-court statement (particularly, since there was no limiting instruction).

 

CAL Observes: While the Court continued to recognize that evidence from the police investigation can sometimes come in as “background,” the judges showed less tolerance for this notion than we usually see in the Appellate Division. We should continue to push background-type hearsay issues as Confrontation Clause violations.

 

One question remains: How specific does information from the police investigation have to be in order for it to qualify as “testimonial”?  While citing Ryan, the Court held off adopting that standard. The First Circuit, in United States v. Meises, 645 F.3d 5 (2011), has reasoned, “if what the jury hears is, in substance, an untested, out-of-court accusation against the defendant, particularly if the inculpatory statement is made to law enforcement authorities, the defendant’s Sixth Amendment right to confront the declarant is triggered.” This is an issue to pursue.