The 2017/2018 Term of the New York Court of Appeals opened, and was highlighted by, a decision addressing the constitutional right to “aid-in-dying”. The Court also addressed the question of whether an action seeking rescission or reformation of a contract constituted an anticipatory breach of the contract; the identification and assessment of relevant environmental hazards under the State’s Environmental Quality Review Act; and whether notice of settlement of a purported class action must be given to all members of the class when the suit is settled before the case was certified as a class action. And, on the criminal side, the Court determined issues relating to the introduction of DNA evidence and a jury charge with respect to cross-racial identification.
Does New York recognize a constitutional right to “aid-in-dying” – the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician to be taken at some point to cause death? Answer: No.
Myers v. Schneiderman, 2017 NY Slip Op 06412 (September 7, 2017)
As most readers of this column know, the New York Court of Appeals, when fully constituted, consists of seven appointed Judges. In addressing the latest challenge to centuries of legal precedent concerning assisted suicide, an issue that has perplexed this Court and others for a generation, the Court was comprised of only five Judges. Those five Judges delivered four opinions during the Court’s most recent opportunity to recognize a new constitutional right. All five Judges joined in the per curiam decision that ruled that mentally competent and terminally ill persons do not have the right, under the New York State Constitution, to aid-in-dying. By aid-in-dying, the plaintiffs meant the ability to obtain from a physician a lethal dosage of drugs. Judges Rivera, Fahey and Garcia each filed their own lengthy concurring opinion. Judge Stein joined Judge Garcia’s concurrence.
As an initial matter, the Court rejected an argument that New York’s assisted suicide statute, Penal Law Section 125.15(3), does not apply to physicians who provide aid-in-dying. The Court noted that such a result would be counter to fundamentals tenets of statutory construction:
“Suicide” is not defined in the Penal Law, and therefore “we must give the term its ordinary and commonly understood meaning…Suicide has long been understood as “the act or an instance of taking one’s own life voluntarily and intentionally…Black’s Law Dictionary defines “suicide” as “[t]he act of taking one’s own life,” and “assisted suicide” as “[t]he intentional act of providing a person with the medical means or the medical knowledge to commit suicide”…Aid-in-dying falls squarely within the ordinary meaning of the statutory prohibition on assisting a suicide.
The assisted suicide statutes apply to anyone who assists an attempted or completed suicide. There are no exceptions, and the statutes are unqualified in scope, creating an “irrefutable inference…that what is omitted or not included was intended to be omitted or excluded”…Furthermore, this Court previously resolved any doubt as to the scope of the ban on assisted suicide.
In addition to basic statutory construction, the Court noted that it had previously addressed a similar issue. In People v Duffy, the Court ruled that Section 125.15 (3) proscribes assisting suicide even where it is based upon such sympathetic motives as wanting to relieve the pain of a terminally ill person.
Plaintiffs claimed a violation of the Equal Protection Clause in the New York State Constitution. Throughout the various opinions filed in this case are discussions comparing aid-in-dying with the right of a mentally competent person to decline life-sustaining treatment. Plaintiffs argued that it was a violation of Equal Protection rights to distinguish between “those terminally ill patients who can choose to die by declining life-sustaining medical assistance, and those who cannot.” The Court rejected that argument, based on the US Supreme Court’s ruling in Vacco v Quill, that New York’s laws do not unconstitutionally distinguish between individuals.
In rejecting the argument relating to deprivation of Due Process, the per curiam opinion notes:
We have consistently adopted the well-established distinction between refusing life-sustaining treatment and assisted suicide…The right to refuse medical intervention is at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions…In the case of the terminally ill, refusing treatment involves declining life-sustaining techniques that intervene to delay death. Aid-in-dying, by contrast, involves a physician actively prescribing lethal drugs for the purpose of directly causing the patient’s death[.]
The plaintiffs also challenged the State of New York’s prohibition on assisted suicide as not rationally related to legitimate state interests.
The right asserted by plaintiffs is not fundamental, and therefore the assisted suicide statutes need only be rationally related to a legitimate government…”The rational basis test is not a demanding one”…rather, it is “the most relaxed and tolerant form of judicial scrutiny”…Rational basis involves a “strong presumption” that the challenged legislation is valid, and “a party contending otherwise bears the heavy burden of showing that a statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational”…A challenged statute will survive rational basis review so long as it is “rationally related to any conceivable legitimate State purpose”…”Indeed, courts may even hypothesize the Legislature’s motivation or possible legitimate purpose”[.]
As to the right asserted here, the State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem…As summarized by the Supreme Court, the State’s interests in prohibiting assisted suicide include: “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible `slide towards euthanasia”…These legitimate and important State interests further “satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end”[.]
And suggested that the matter be addressed by the Legislature:
The Legislature may conclude that those dangers can be effectively regulated and specify the conditions under which it will permit aid-in-dying. Indeed, the jurisdictions that have permitted the practice have done so only through considered legislative action…and those courts to have considered this issue with respect to their own State Constitutions have rejected similar constitutional arguments…At present, the Legislature of this State has permissibly concluded that an absolute ban on assisted suicide is the most reliable, effective, and administrable means of protecting against its dangers[.]
Does the mere commencement of an action seeking “rescission and/or reformation” of a contract constitute an anticipatory breach of such an agreement? Answer: No, under the unique circumstances of the case.
Princes Point LLC v. Muss Dev. L.L.C., 2017 NY Slip Op 07298 (October 19, 2017)
In 2004, plaintiff agreed to purchase a developable waterfront parcel on Staten Island from two of the defendants. In relevant part, the agreement provided that, as a condition precedent to closing, seller was required to deliver certain government approvals necessary to develop the property. The closing date was to be 30 days after plaintiff received notice that the approvals had been obtained, but in no event later than the “Outside Closing Date,” 18 months after delivery of the purchase agreement. If the approvals could not be obtained by the Outside Closing Date, then either party could terminate the agreement upon 30 days’ notice; plaintiff would receive a refund of its deposit; and the parties would be released from the majority of their contractual obligations. Plaintiff also retained an option to waive the approvals and proceed to closing.
After Hurricane Katrina in New Orleans, the New York State Department of Environmental Conservation noted certain flaws in a retaining wall along the waterfront of the property, and required seller to remedy those defects. Thus, seller was unable to obtain the requisite development approvals by the closing date set in the purchase agreement. In light of the additional time and cost required, seller advised plaintiff that it intended to exercise the right to terminate the agreement unless plaintiff agreed to an amendment. Seller and plaintiff amended the purchase contract to increase the purchase price and down payment to be made with respect to the property; to require the parties to share in the costs of remediation; and to extend the Outside Closing Date. That Outside Closing Date was later extended on 11 occasions to accommodate the remedial work.
A month before the last adjourned Outside Closing Date, plaintiff commenced an action alleging, inter alia, fraud in the inducement of the amendments to the contract. Plaintiff sought specific performance of the contract absent the amendments because the amendments were executed based on defendants’ alleged misrepresentation of their ability to complete the remedial work necessary to close the sale.
Defendants asserted various counterclaims. In their first counterclaim, defendants sought judgment declaring that either the contract had terminated or plaintiff must immediately proceed to closing without any abatement in the purchase price. In another counterclaim, defendants alleged that, by failing to close the transaction in accordance with the contract, plaintiff defaulted entitling seller to retain the entire down payment and the payments plaintiff made as a share of the cost of the remediation of the property.
The proceedings in Supreme Court:
All of plaintiff’s causes of action subsequently were dismissed. The matter eventually proceeded to defendants’ motion for partial summary judgment, which considered only the first and third counterclaims. Through that application, defendants sought judgment declaring that the contract is terminated, and that plaintiff materially breached the contract. Supreme Court granted the motion, adjudging that the contract had “expired by its terms” and that plaintiff “materially breached” that compact, entitling defendants to, among other things, retain the down payment and the remedial payments made pursuant to the amendments to that agreement.
The Appellate Division affirmed the judgment insofar as appealed from and determined “that, because a rescission action unequivocally evinces the plaintiff’s intent to disavow its contractual obligations, the commencement of such an action before the date of performance constitutes an anticipatory breach”…The Appellate Division also concluded “that the seller [APB] was not required to show that it was ready, willing, and able to complete the sale [as a condition of receiving damages] because the buyer’s anticipatory breach relieved [the seller] of further contractual obligations”[.]
Summarized applicable law as to anticipatory breach of contract:
“An anticipatory breach of a contract by a promisor is a repudiation of [a] contractual duty before the time fixed in the contract for…performance has arrived”…An anticipatory breach of a contract — also known as an anticipatory repudiation — “can be either a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach or a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
For an anticipatory repudiation to be deemed to have occurred, the expression of intent not to perform by the repudiator must be “positive and unequivocal”…We have taught that the party harmed by the repudiation must make a choice either to pursue damages for the breach or to proceed as if the contract is valid…We have also clarified that “a wrongful repudiation of the contract by one party before the time for performance entitles the nonrepudiating party to immediately claim damages for a total breach.”
The Court noted that commencement of an action seeking rescission or reformation would normally constitute repudiation. However, it concluded:
On this record — and particularly in view of the repeated movement of the new outside closing date — we cannot conclude that the commencement of this action reflects a repudiation of the contract.
Instead, the Court ruled that the facts in this case were more analogous to a declaratory judgment action (which would not be repudiation) than the traditional claim for rescission.
Did New York State properly identify and assess relevant environmental hazards with respect to the construction of a new residence for the elderly and disabled adjacent to a public elementary school and other apartment buildings? Answer: In this case, the State complied with the New York State Environmental Quality Review Act (“SEQRA”).
Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 08621 (December 12, 2017)
The two cases giving rise to this appeal arose from an application by Jewish Home Life Care to the NYS Department of Health for permission to construct a new residence for the elderly and disabled on West 97th Street in New York City. JHL submitted an Environmental Assessment Statement to DOH, triggering the SEQRA review process.
The Article 78 proceedings were filed by parents of students attending a local elementary school and tenants living in buildings near the proposed construction. The opinion begins with a fulsome discussion of the statutory and regulatory SEQRA process in general. Next the Court explained the process undertaken by DOH, the various options it considered, and the plans it developed to address them – a Remedial Action Plan (“RAP”) and a Construction Health and Safety Plan (“CHASP”). Three potential risks during construction were relevant to the appeal, the presence of lead in the soil creating an exposure hazard; the potential exposure of children to lead dust from the soil; and excessive noise. The Court, as follows, described in great detail the steps taken by DOH:
With respect to hazardous materials, the DEIS incorporated the results of two separate environmental site assessments, conducted by different experts. The first, a Phase I assessment, found “no evidence of recognized environmental conditions” and recommended no further action. Nevertheless, the agency proceeded to a Phase II assessment, which collected and analyzed subsurface soil and groundwater samples from the footprint and immediate vicinity of the proposed facility. This report concluded that lead levels at the site were no higher than those typically found in urban fill, and were below the Department of Environmental Conservation’s Restricted Residential Use Soil Cleanup Objectives, which provides a remediation standard for contaminated land[.]
Based on these reports, DOH concluded that any risks posed by lead could be appropriately mitigated. The DEIS noted that, although lead presented a health hazard, especially to children, there would be no long-term public exposure to lead in the soil, because the excavated leaded dirt would be removed or covered by the new facility, and thus did not constitute a soil-lead hazard as defined by the United States Environmental Protection Agency (EPA).
DOH further considered the risk of airborne lead dust migrating from the construction site. Since New York State does not have an airborne lead risk standard, DOH relied on the National Ambient Air Quality Standard (NAAQS), a federal standard established by the EPA pursuant to the Clean Air Act…The NAAQS sets forth an acceptable lead dust level for “sensitive populations” including children and the elderly. To ensure airborne lead dust remains within the NAAQS limits, DOH imposed monitoring and containment measures, including sprinkling/wetting soil with water, requiring tarp covers on haul-trucks, inspecting vehicles before site exit, and cleaning trucks as necessary to prevent dust dispersion. DOH also required proper disposal of soil in accordance with hazardous waste removal standards, real-time monitoring of dust levels, and the installation of a vapor barrier surrounding the cellar and sidewalls, along with contingency plans in case of additional contamination, including work-cessation if measured airborne particulate matter passed a certain threshold. DOH concluded in the DEIS that the construction would not cause significant environmental or public health risks from lead dust because these mitigation measures would keep airborne dust below the NAAQS limits, ensuring that acceptable levels would be “rarely (if ever)” exceeded.
DOH similarly assessed construction noise, and initially concluded that it would not significantly impact P.S. 163 students, relying, in part, on criteria set forth in the New York City Environmental Quality Review Technical Manual…the technical manual developed by the City for use by its agencies. Nevertheless, DOH conducted an analysis of the potential noise impact on P.S. 163 because the school was a “highly sensitive location.”
For its noise study, DOH adopted the Computer Aided Noise Abatement model, and employed assumptions that exceeded the worst-case scenario baselines referenced in the City Manual. Based on this study, DOH concluded that interior noise levels in the classrooms facing the site would, during the noisiest stages of construction, occasionally exceed the City Manual’s target of 45 dBA. Actual noise would be lower, though, based on mitigation measures to be employed by JHL, including moving noisy equipment away from P.S. 163, installing a ten-foot-high sound barrier, and using less noisy electrical equipment. DOH concluded that these measures were sufficient because the external absolute noise levels would be equivalent to those on a heavily trafficked city street, and the excess noise would be sporadic over a less-than-two-year period.
The DOH conducted public hearings and modified the RAP and CHASP to deal with some of the concerns. DOH rejected requests that the construction site be enclosed in a tent during excavation to contain airborne particles, and that JHL install central air conditioning in the school.
JHL alleged that installing central air conditioning at $8-10 million was cost prohibitive and would delay construction. In support of its claims, JHL relied on an email from the City School Construction Authority. The State Dormitory Authority subsequently advised DOH that it was not feasible to install central air conditioning, noting potential added costs and delays if it became necessary for JHL to undertake asbestos abatement as part of the installation.
The Finding Statements:
DOH eventually issued a Findings Statement that incorporated these arguments, reviewed the FEIS, and discussed the relevant environmental impacts identified and assessed during the SEQRA process. The Findings Statement also explicitly provided that, “consistent with social, economic and other essential factors, and considering the available reasonable alternatives,” the project “avoids or minimize[s] adverse environmental effects to the maximum extent practicable…by incorporating, as conditions to [DOH’s] decision, those mitigation measures [which were] identified as practicable,” and provided a rationale for that determination.
Proceedings in the Courts below:
Supreme Court partly agreed, vacated and annulled DOH’s approval of JHL’s application, and remitted the matter to DOH to prepare an amended FEIS. The court held that although DOH followed proper SEQRA procedures, it failed to adequately consider all relevant mitigation measures — in particular the use of a tent and the installation of central air conditioning.
The Appellate Division reversed, with one Justice dissenting, reinstated the Findings Statement, and dismissed the petitions…The court rejected petitioners’ SEQRA claims…The court concluded that Supreme Court had improperly “substituted its for the expertise of the lead agency simply because the agency rejected what the court considered to be better measures”[.]
The Court of Appeals explained the very limited role of the courts in reviewing SEQRA findings:
Judicial review of SEQRA findings “is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination `was affected by an error of law or was arbitrary and capricious or an abuse of discretion’”…This review is deferential for “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively”…Courts review an agency’s substantive obligations “in light of a rule of reason”…Importantly: Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA. The degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal. . . . [T]he Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives. Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice.
…In short, we “`review the record to determine whether the agency identified the relevant areas of environmental concern, took a `hard look’ at them, and made a `reasoned elaboration’ of the basis for its determination”[.]
The issues on appeal:
On appeal to this Court, petitioners raise several substantive and procedural issues. They challenge DOH’s lead hazard findings, reasserting their arguments below that DOH adopted a flawed methodology to measure the prevalence of lead at the construction site, failed to fully assess or mitigate the impact of airborne lead dust, and never looked specifically at the danger lead dust posed to children, the elderly, or the infirm. The parent petitioners additionally challenge DOH’s construction noise findings, asserting that DOH’s noise mitigation measures do not adequately protect P.S. 163 students.
The Court painstakingly addressed each substantive concern raised by the petitioners. In summary, the Court held:
[B]ased on the record here, we conclude that DOH took the requisite hard look at the potential risk posed by soil-based lead contamination and potential lead dust migration…DOH’s conclusions are based on federal and state standards, including accepted EPA standards, on which the agency was legally allowed to rely. Petitioners may have preferred DOH to adopt a different standard, but we cannot say DOH’s determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion”[.]
Petitioners’ challenge to DOH’s assessment of lead dust is similarly unavailing…
Preventing the migration and inhalation of lead dust was one of the environmental risks the agency specifically set out to measure and mitigate in the RAP and CHASP that it adopted. In recognition of the risk, DOH imposed a battery of construction protocols to monitor and contain airborne dust. DOH reasonably concluded that these mitigation measures were sufficient to ensure that airborne lead levels remained within acceptable NAAQS limits, and explained its assessment fully in the DEIS and FEIS.
[DOH] acted squarely within its statutory authority to choose among alternatives when it rejected the tent and adopted the measures it chose instead[.]
We find petitioners’ noise claims similarly unpersuasive. DOH conducted a detailed analysis of construction noise, employing assumptions based on reasonable worst case scenarios. In assessing both the dangers of construction noise and the most appropriate mitigation measures, DOH acted within its “considerable latitude in evaluating environmental effects and choosing among alternatives”…We conclude, based on all this information, that DOH did not act unreasonably in deciding that the noise levels it sought to maintain were within a permissible range.
Must notice of a proposed dismissal, discontinuance or compromise of a purported class action be given to all members of the class when the suit is settled before the class has been certified? Answer: Yes; and, as a result, notice to putative class members must be given of the proposed dismissal, discontinuance or compromise.
Desrosiers v. Perry Ellis Menswear, LLC, 2017 NY Slip Op 08620 (December 12, 2017)
In deciding two cases from the First Department, the Court (by a 4-3 majority) ruled that CPLR 908 mandates that notice be provided to putative class members of dismissal of an action even when the deadline to move for certification has passed. In the lead case, Plaintiff Geoffrey Desrosiers worked as an unpaid intern for Perry Ellis. He commenced a purported class action against Perry Ellis alleging that it improperly classified employees as interns. He sought wages on behalf of himself and similarly-situated individuals. The second case involved Christopher Vasquez, a salesperson for National Securities Corporation. He filed a purported class action against NSC on behalf of himself and all similarly-situated individuals alleging that the compensation paid by NSC fell below the required minimum wage. In both cases the individual plaintiffs accepted settlement offers before moving for class certification.
Perry Ellis moved to dismiss the complaint. Desrosiers did not oppose dismissal of the complaint, but filed a cross motion seeking leave to provide notice of the proposed dismissal to putative class members pursuant to CPLR 908. Supreme Court dismissed the complaint and denied the cross motion to provide notice to putative class members. Similarly, when NSC moved to dismiss Vasquez’s complaint, he cross moved to provide notice to putative class members. Over NSC’s objection, however, Supreme Court granted the cross-motion.
The First Department reversed the denial of Desrosiers’ cross motion. In Vasquez’s case, the Appellate Division affirmed the order requiring notice and in doing so specifically adhered to the Court’s 1982 decision in Avena v Ford Motor Co. In both cases, the First Department granted the defendants leave to appeal to the Court of Appeals.
The majority decision noted the following about the Avena opinion:
In New York, the only appellate-level decision to address this issue as it pertains to CPLR 908 (other than the two decisions on appeal here) is Avena v Ford Motor Co.… In that case, the named plaintiffs settled with the defendant before class certification, and the settlement was without prejudice to putative class members…The trial court refused to approve the settlement without first providing notice to the putative class members…The Appellate Division affirmed that determination, concluding that CPLR 908 applied to settlements reached before certification. The First Department reasoned that the “potential for abuse by private settlement at this stage is . . . obvious and recognized”…and that the named plaintiffs had a fiduciary obligation to disclose relevant facts to putative class members[.]
This Court has never overruled Avena or addressed this particular issue, and no other department of the Appellate Division has expressed a contrary view. Consequently, for 35 years Avena has been New York’s sole appellate judicial interpretation of whether notice to putative class members before certification is required by CPLR 908.
The majority also discussed the subsequent inaction of the legislative branch:
[T]he fact that the legislature has not amended CPLR 908 in the decades since Avena has been decided is particularly persuasive evidence that the court correctly interpreted the legislature’s intent as it existed when CPLR 908 was enacted in light of developments occurring in the years after Avena was decided.
The majority also considered the legislative history from when CPLR 908 was enacted in 1975. The majority considered CPLR 908 to be ambiguous; and concluded that the First Department was correct that CPLR 908 mandated notice in both cases.
Any practical difficulties and policy concerns that may arise from Avena’s interpretation of CPLR 908 are best addressed by the legislature…especially considering that there are also policy reasons in favor of applying CPLR 908 in the pre-certification context, such as ensuring that the settlement between the named plaintiff and the defendant is free from collusion and that absent putative class members will not be prejudiced…The balancing of these concerns is for the legislature, not this Court, to resolve.
Judge Leslie Stein wrote a dissenting opinion in which Judges Rowan Wilson and Michael Garcia concurred. The dissenters believe that the plain language of CPLR 908, considered in light of the remainder of Article 9 of the CPLR, does not require notice to putative class members. The dissenting opinion asserts that the Court’s ruling was contrary to its 1979 holding in O’Hara v. Del Bello, in which the lower courts had improperly granted class action relief without following Article 9’s requirements. The dissent also questioned the reasoning of the Avena opinion. The dissenters also made the following observation:
Directing such notice under these circumstances would lack practical significance. Indeed, the notice would essentially inform putative class members that an individual claim – of which they received no prior notice – was being resolved by an agreement that was not binding on them. Moreover, as defendants point out, because no class had been certified under CPLR 902, it is unclear to whom notice was purportedly required. Not only would this uncertainty create administrative difficulties that would entail the expenditure of time and resources by both the court and the parties, the ultimate purpose of the notice appears, at most, to be to allow plaintiffs’ counsel to identify more clients at the expense of the court and defendants.
People v. Austin, 2017 NY Slip Op 07300 (October 19, 2017)
Was a defendant’s Sixth Amendment right to confrontation violated by the introduction of DNA evidence through the testimony of a witness who had not performed, witnessed or supervised the generation of a DNA profile? Answer: The introduction of such hearsay evidence through surrogate testimony violated defendant’s right to confront the witnesses against him because the evidence was testimonial in nature.
The Court summarized the facts:
Defendant was charged in connection with two separate incidents. In the June 2009 incident, defendant was alleged to have broken into a building and unlawfully entered both a vacant office and a dry cleaning establishment. The dry cleaner had surveillance cameras that captured the incident and a copy of the surveillance video was played for the jury. The police took swabs from blood observed on the building’s outside rear door. Those swabs were vouchered and sent to the Office of the Chief Medical Examiner (OCME) for DNA blood analysis, which produced a DNA profile. The second incident took place at a Classic Bed and Bath store in September 2009. The back door had been forced open after business hours and money and merchandise were taken. A bloody receipt, found near the cash register, was also tested for DNA evidence by OCME.
The numerical identifiers constituting the DNA profile from the biological evidence obtained at both scenes were uploaded by computer to CODIS (the Combined DNA Index System). OCME was notified that there was a match between the DNA from the crime scene evidence and defendant’s numerical DNA profile, which was stored in the state database. As a result, the police issued an investigative card that the detectives in the investigation wanted to speak with defendant in the event of an arrest. Defendant was later arrested and indicted.
The People opted not to introduce evidence of the “cold hit” from CODIS. Prosecutors told the trial court “[t]o make things easier for the trial[, the People] had the defendant re-swabbed and retested by the DNA lab so that . . . we’d only have to call the one person from the downstate DNA lab and not have to deal with somebody in Albany.” A buccal swab was collected from defendant. The numerical identifiers from the DNA profile generated by OCME from that sample were compared to the numerical identifiers from the DNA profiles generated from the evidence from the 2009 incidents. The strings of numbers for the profiles were found to match just prior to defendant’s trial.
The People’s only forensic witness on the DNA evidence was an OCME Criminalist level III. It became clear that the basis for the criminalist’s testimony was going to be his comparison of the strings of numbers derived from the DNA test results generated by other analysts. Defense counsel raised various objections to the criminalist’s testimony.
The Court of Appeals explained:
[N]one of the laboratory reports including the actual numerical identifiers of the DNA profiles generated, or physical evidence of the DNA was ultimately admitted into evidence. Nonetheless, the criminalist was permitted to testify in a general and conclusory manner to the DNA evidence without personal knowledge of many matters he asserted to be true — including the DNA profile generated from defendant’s post-accusatory 2012 buccal swab.
Indeed, the criminalist was permitted to testify, over defendant’s repeated hearsay objections, and without having conducted, witnessed or supervised the generation of the DNA profiles, that the DNA profile generated from defendant’s buccal swab was a match to the DNA profile generated from evidence found at the 2009 crime scenes. Specifically, the criminalist testified that he received the voucher containing defendant’s 2012 buccal swab and that the accompanying examination notes both identified defendant by name and included the evidence unit number. When the prosecutor asked whether he had “analyze[d] the DNA profile in this particular case,” the criminalist responded that he “reviewed the DNA profile.” In response to the prosecutor’s request for clarification as to what his review of the DNA profile entailed, the criminalist responded that he “looked at the DNA profile, the string of numbers, which is the DNA profile and compared it to [the profiles generated from the 2009 burglaries]. And I compared them to male donor A from each of those cases and I found that they were the same DNA profile.”
Despite the fact that the laboratory reports containing the generation of the DNA profiles by nontestifying witnesses were not in evidence, the criminalist was permitted to read from those files on the stand.
In fact, the trial court noted during redirect examination:
You guys have basically made this witness into a parrot. He doesn’t know anything. He didn’t do anything, but you use him to put in all of this other information, just as if [he] actually had knowledge of it.
The jury found defendant guilty with respect to the June 2009 burglaries and acquitted him of the counts relating to the September 2009 burglary.
The Appellate Division affirmed with one Justice dissenting. The issue on appeal to the Court of Appeals was:
Defendant on appeal limits his Confrontation Clause challenge to the OCME witness’s testimony concerning the DNA profile created from his 2012 post-accusatory buccal swab and the comparison between that profile and the DNA profiles generated from the 2009 burglaries. He maintains that this post-indictment evidence is testimonial, as it was created for the primary purpose of identifying him as the perpetrator of the burglaries, and that the testimony as to this evidence was inadmissible hearsay[.]
The Court noted that the Confrontation Clause generally prohibits the admission of a nontestifying witness’ testimonial statements. Under the primary purpose test for determining whether evidence is testimonial, the Court must decide whether the statement was prepared in a manner resembling ex parte examination and whether it accuses the defendant of criminal wrongdoing.
The Court of Appeals initially concluded that:
The criminalist’s hearsay testimony as to the 2012 DNA profile easily satisfies the primary purpose test… the People relied solely on the evidence of the DNA profile generated from defendant’s 2012 buccal swab, which was developed during the course of a pending criminal action and was created in order to prove his guilt at trial.
And, in the next step of the analysis, the Court ruled:
Thus, in order to satisfy the Confrontation Clause, defendant was entitled to cross-examine the analyst who either “performed, witnessed or supervised the generation of the critical numerical DNA profile” or who “used his or her independent analysis on the raw data” to arrive at his or her own conclusions…As we recently held, “it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged”…Although the criminalist may have had some level of involvement in OCME’s handling of some of the 2009 crime scene swabs, he had no role whatsoever in the testing of defendant’s post-accusatory buccal swab. His testimony was, therefore, merely “a conduit for the conclusions of others”[.]
* * *
The error was not harmless, as the evidence of defendant’s guilt without the DNA evidence was not overwhelming and there is a reasonable possibility that the error might have contributed to the verdict[.]
The Court appeared to be critical of the manner in which the People decided to present evidence, specifically noting: “the People elected not to use the evidence of the pre-accusatory CODIS match because they wanted to avoid bringing a witness in from Albany to testify.”
Is a criminal defendant entitled, upon request, to a jury charge on cross-racial identification when the identification is an issue in the case and the identifying witness and the defendant appear to be of different races? Answer: Yes, when requested by the defendant and where identification by a cross-racial witness is an issue.
People v. Boone, 2017 NY Slip 08713 (December 14, 2017)
The Court of Appeals introduced the matter by explaining that psychologists generally agree that people have significantly greater difficulty in accurately identifying members of a race that is different from their own. To avoid wrongful convictions involving cross-racial identifications the Court believed that a new approach was necessary.
In this case a white man was walking in New York City when he was approached by a short-haired black man who asked for the time. After the man retrieved his cell phone, the stranger snatched it and fled. The victim gave chase, until the robber pulled out a knife. Ten days later, a white teenager was walking in the same neighborhood when a man asked the time. The teenager looked back and saw a stranger, a black man. When the teenager told the stranger the time from his cell phone, the stranger then grabbed it. The teenager did not immediately let go, and the robber stabbed him.
The defendant, a black man, who loosely matched both victims’ descriptions, was suspected of committing the crimes. He was placed in two lineups and the victims separately identified him. The teenager was initially unsure, but identified the defendant after he spoke the words “What time is it?” No physical evidence linked defendant to the crimes.
At defendant’s jury trial, defense counsel timely requested that the jury be instructed on cross-racial identification. The trial judge denied the request, on the basis that there had been no testimony about cross-racial identification. The trial court gave the jury an expanded charge on eyewitness identification, based on the pertinent Criminal Jury Instruction but omitted the part of the pattern instruction addressing cross-racial identification.
The defendant was found guilty of two robbery counts. On appeal he argued that Supreme Court denied him a fair trial by refusing to charge the jury on the inaccuracy of cross-racial identification. The Appellate Division affirmed, holding that Supreme Court had not erred in declining to instruct the jury on cross-racial identification because defendant had not placed the issue in evidence during the trial.
The Court of Appeals noted that:
Mistaken eyewitness identifications are “the single greatest cause of wrongful convictions in this country”…”responsible for more . . . wrongful convictions than all other causes combined” Inaccurate identifications, especially misidentifications by a single eyewitness, play a role in the vast majority of post-conviction DNA-based exonerations in the United States. Indeed, a recent report by the National Academy of Sciences concluded that “at least one mistaken eyewitness identification was present in almost three-quarters” of DNA exonerations…This Court has noted in recent years the prevalence of eyewitness misidentifications in wrongful convictions and the danger they pose to the truth-seeking function and integrity of our justice system[.]
Discussed the applicable social science evidence:
Social scientists have found that the likelihood of misidentification is higher when an identification is cross-racial. Generally, people have significantly greater difficulty accurately identifying members of other races than members of their own race. According to a meta-analysis of 39 psychological studies of the phenomenon, participants were “1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces”…The phenomenon is known as the cross-race effect or own-race bias.
The decision to grant a request for expert testimony on the subject of cross-racial identification remains within the trial court’s discretion…However, expert testimony is not necessary to establish the right to the charge.
A psychological principle such as the cross-race effect may lend itself to expert testimony. “Despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror”…Contrary to the People’s position, this does not mean that the cross-race effect cannot be expressed in a jury charge.
Further noting that:
An eyewitness is often utterly confident about an identification, expressing the identification or recollection of identification with subjective certainty, and hence entirely unshakable on cross-examination. “[A]s scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and because the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness. Instead, some mistaken eyewitnesses, at least by the time they testify at trial, exude supreme confidence in their identifications”.
Accordingly, the Court of Appeals instructed the lower courts:
[I]n a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification.