Criminal Appeals Attorney Wins Important Victory In Appellate Division, Second Department

The Criminal Appeals Bureau achieved an important victory in the Appellate Division, Second Department, in People v. McCune, decided August 15, 2012. Criminal Appeals Attorney Allen Fallek represented Alfred McCune in the appeal.

At Mr. McCune’s trial for second-degree murder, only one eyewitness testified and no physical evidence connected McCune to the murder. The prosecutor, however, was allowed to present the grand jury testimony of a second eyewitness who, alleging that he had been threatened, refused to testify. During the critical portion of the all-important Sirois hearing at which Mr. McCune ultimately lost the right to cross-examine this second eyewitness, the trial court, over defense objection, excluded Mr. McCune from the courtroom. The Second Department, reversing the conviction and ordering a new trial, concluded that a Sirois hearing “has a substantial effect on [the defendant’s] ability to defend the charges against him and, thus, . . .constitutes a material stage of the trial” at which the defendant has a right to be present.

The New York Law Journal
New Trial Granted for Defendant Kept From Hearing
By Mark Hamblett

A convicted murderer has been granted a new trial because he was not present for a hearing held to determine whether a witness who refused to testify because of intimidation could be considered unavailable.

A panel of the Appellate Division, Second Department, said in a unanimous opinion that Alfred McCune should be given a new trial because he was unable to confront the witness about the alleged threats and intimidation that kept the witness from identifying McCune as the shooter.

The state decision came the same day the U.S. Court of Appeals for the Second Circuit reached a similar decision on the law but denied another convicted murder habeas relief.

The Second Department said Acting Supreme Court Justice Danny Chun in Kings County (See Profile) erred in excluding McCune from a portion of a Sirois hearing, a proceeding held to determine whether a defendant procured a witness' unavailability through his own misconduct.

On Nov. 10, 2009, a Brooklyn jury convicted McCune of second-degree murder and second-degree criminal possession of a weapon for the 2008 shooting death of Michael Wilmot in front of 553 E. 108th St., a building in the Breukelen Houses.

Chun had held a Sirois hearing, named for People v. Sirois, 92 AD2d 618, in which McCune was allowed to be present for two of the witnesses but not the critical witness—the one who saw the shooting and who was allegedly threatened to stay off the witness stand.

At the close of the hearing, Chun ruled the critical witness unavailable, a ruling that allowed Assistant District Attorney Nicole Itkin to read that witness' grand jury testimony into the record.

The Second Department reversed and ordered a retrial in an unsigned Aug. 15 opinion by Justices Ruth Balkin (See Profile), Thomas Dickerson (See Profile), Ariel Belen (See Profile) and Jeffrey Cohen (See Profile) in People v. McCune, 2009-10758 (Ind. 3505/08).

Under Sirois, a defendant who procures a witness' unavailability through his own misconduct forfeits any objection based on hearsay or the confrontation clause. At a Sirois hearing, the prosecution has the burden of showing by clear and convincing evidence that the defendant procured the witness' absence or unavailability.

The Second Department said it had long been held that "a defendant is guaranteed to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure," Kentucky v. Stincer, 482 U.S. 730 (1987).

The state panel also said a Sirois hearing was indeed a critical phase of the proceedings.

"During a Sirois hearing, testimony is heard that could possibly lay the foundation for the introduction into evidence at a defendant's trial of a witness's prior statements, including grand jury testimony, rather than live testimony from the witness that is subject to cross examination," the panel said. "Accordingly, a defendant's absence at a Sirois hearing has a substantial effect on his ability to defend the charges against him and, thus, a Sirois hearing constitutes a material stage of the trial."

The district attorney had tried to argue that the procedure before Chun was not a Sirois hearing, but instead a hearing on whether the witness should be held as a material witness. The panel disagreed, saying it clearly was a Sirois hearing.

"Moreover, although the defendant was present during the testimony of the other two Sirois hearing witnesses, both of those witnesses provided only hearsay testimony about what the subject witness allegedly told them regarding the threats and intimidation," the panel said. "As such, the defendant's presence in the courtroom during the other two witnesses' testimony did not cure the error in excluding him from the courtroom during the subject witness's testimony."

Allen Fallek of the Legal Aid Society represented McCune.

"I'm very happy for my client and I'm glad that the court agreed with our argument and vindicated a very important trial right—the right to be present at this critical stage of criminal proceedings," he said.

Assistant District Attorney Shulamit Rosenblum represented the prosecution. Comparable Ruling

The Second Department's decision was released the same day the Second Circuit ruled that defendants have a constitutional right to attend such hearings, which are also called Geraci hearings, People v. Geraci, 85 N.Y.2d 359 (1995).

Nathanial Grayton claimed he was excluded from a Geraci hearing at his 2003 trial for the 2001 shooting death of Isaiah Rodriguez.

Second Circuit Judges Rosemary Pooler (See Profile), Barrington Parker (See Profile) and Susan Carney (See Profile) agreed in Grayton v. Ercole, 10-1419, that Grayton had a constitutional right to be present at his Geraci hearing, saying the right to be present at the hearing "bears a substantial relation" to the fullness of a defendant's opportunity to defend against the charges.

Moreover, Pooler wrote for the panel, "If a defendant loses his Geraci hearing, he loses his right to cross examine a witness," which is a "'fundamental right essential to a fair trial in a criminal prosecution,'" United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001).

However, the circuit determined that Grayton had waived his right to be present at the hearing.

The panel quoted Brooklyn Supreme Court Justice Carolyn Demarest (See Profile) as saying, "We do not have the defendant present. The defendant is not entitled to be present at a Gerac[i] hearing nor is his counsel, I believe."

While defense counsel John Stella was ultimately allowed to be present, he said he "understood" that his client was not. Stella, who called no witnesses himself and conducted no cross-examination of the three witnesses called by prosecutor Karen Cambre, later framed his role at the hearing as "having the opportunity to observe" it.

The circuit said the Second Department acted reasonably in denying relief to Grayton on appeal.

"Though neither Grayton nor his counsel expressly waived his right to be present, at a minimum, it would be reasonable for the state court to have found an implied waiver of that right," Pooler said.

She said the record did not reflect Stella's reason for not objecting to Grayton's exclusion "but the most obvious reason for such a waiver—that suggested by the government—is unlikely to ever make its way into the record."

Pooler added, "An attorney can hardly inform the court that he waives his client's presence for fear that his presence will create demonstrative evidence of misconduct. There is a very real possibility in all but the most egregiously called for Geraci hearings that a defendant's presence will only confirm a court's suspicions, and a lawyer may reasonably decide that such is a risk that he and his client cannot bear."

Nevertheless, although finding that Grayton had waived his right to be present, it dispatched the government's argument that he had no right to attend the hearing.

"Adopting the government's position in this case would mean that a defendant's Confrontation Clause and due process rights are forfeited not at a judicial finding of misconduct, but at the allegation of misconduct," Pooler wrote. "If there is no right to presence at a Geraci hearing, all a prosecutor need do is raise the inference of misconduct to deprive a defendant of his opportunity to cross-examine and confront the witnesses against him."

Julia Pamela Heit argued for Grayton.

Assistant District Attorney Morgan Dennehy argued for the state.