The Legal Aid Society's Criminal Appeals Bureau Achieves A Significant Victory In The Appellate Division, Second Department

Frances Gallagher, a Staff Attorney in The Legal Aid Society's Criminal Appeals Bureau, representing Bushawn Shelton, achieved a significant victory when the Appellate Division, Second Department unanimously reversed Shelton's convictions for first-degree assault and second-degree burglary on two grounds, and ordered a new trial. Agreeing with the Society's argument that the prosecution's case was problematic, the court took the unusual step of reversing the conviction "as a matter of discretion in the interest of justice" despite the absence of objection to either error by trial counsel. The court determined that the trial judge should have submitted an accomplice-corroboration charge regarding a critical prosecution witness, whose actions facilitated the crime, and that the trial prosecutor committed further error by cross-examining Mr. Shelton's alibi witness based on her failure to come forward, without laying a proper foundation.

The New York Law Journal
Errors Lead Panel to Order Retrial in 'Interest of Justice'
By Jeff Storey

Acting in the "interest of justice," an appeals court has ordered a new trial for a man sentenced to 10 years in prison after what the court said was a trial tainted by two significant errors.

First, the unanimous panel of the Appellate Division, Second Department, ruled in People v. Shelton, 2009-02652, that Queens Supreme Court Justice Robert Kohm (See Profile) should have instructed the jury with an accomplice-corroboration charge.

But the court also concluded that reversal was merited because the judge had permitted the prosecutor to cross-examine the defendant's alibi witness, without having first laid the proper foundation about her failure to come forward at an earlier time.

The court reached its decision even though defense counsel had not preserved either issue for appeal. Counsel neither requested a corroboration charge nor objected to the charge given. And he did not object to the improper questioning of the alibi witness.

Noting that the proof of Bushawn Shelton's guilt was not overwhelming, the panel opted to review the issues "as a matter of discretion in the interest of justice."

At trial, Kimberley Frieson testified that in April 2006 she was hanging out with Shelton, whom she knew, and three other men when they decided to go to the Queens apartment of her ex-boyfriend, Corey Brock, and buy some marijuana. She was aware that one of the men had a gun.

After parking their cars around the corner from Brock's apartment, the group approached his apartment and Frieson rang the bell. Brock's girlfriend told the group that he was asleep, and they left.

Back at the cars, Frieson recalled that one of her companions, sounding frustrated and aggressive, said that he "didn't come from the Bronx for nothing." Frieson said she was told that the men wanted to leave a phone number with Brock. They then returned to the apartment building.

As Frieson approached the front door, her companions positioned themselves at the side so that they could not be seen.

Brock's girlfriend opened the door and agreed to take the number. However, one of the men other than the defendant prevented her from closing the door and gestured for Frieson to walk away, which she did. The men rushed into the apartment.

According to the district attorney's brief, in the ensuing struggle, Brock was repeatedly hit over the head from behind with a hard object. One of his assailants was shot in the chest and later died from his injuries.

Frieson was outside, four houses away, when she heard gunshots. Two of the men ran out, but she believed that Shelton was still inside. She called a friend, who picked her up and took her home.

Frieson was the only witness to identify the defendant as one of the men she accompanied to the apartment. Brock said that he did not know Shelton and could not identify him as one of his assailants.

The defense called another witness, a community organizer with contacts in the district attorney's office, who testified that she had been talking to Shelton on the street about his car stereo less than one minute before she heard shots fired.

The prosecutor challenged the credibility of the alibi witness by eliciting on cross examination that she had not reported her information to law enforcement and had not talked to the defense for at least a year after the incident.

A jury convicted Shelton of second-degree burglary and first-degree assault. On Feb. 27, 2009, he was sentenced to two concurrent 10-year sentences. He is currently incarcerated.

State law provides that no defendant can be convicted of any crime "upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense." CPL 60.22 [1]. (Read sample jury instructions on this issue.)

Here, the prosecution argued that Frieson's participation in what she thought was an expedition to buy marijuana and her presence at the initial stages of the crime did not make her an accomplice. Moreover, it claimed that details of her testimony were corroborated by other witnesses.

But the Second Department panel said her testimony was "unsupported by corroborative evidence" tying Shelton to the crimes.

Moreover, it held that a jury could have reasonably drawn an inference from the evidence—including her awareness that one of her companions had a gun; the aggressive and frustrated reaction of one of them after being turned away on the first occasion; and the positioning of the four men so they could not be seen by someone opening the door—that Frieson either participated in the burglary and assault or facilitated the crimes.

"This evidence was susceptible of more than one interpretation, and the Supreme Court erred in failing to instruct the jury to determine whether the witness was an accomplice," the court said.

As for the second issue raised by Shelton on appeal, the panel pointed out a defense witness can be cross-examined about her failure to come forward only after the prosecutor has shown that she was aware of the nature of the charge pending against the defendant; she had reason to believe that she possessed exculpatory information; she had a reasonable motive for acting to exonerate the defendant; and she was familiar with the means for making such information known to law enforcement authorities. People v. Dawson, 50 NY 2d 311.

The panel concluded that while the prosecution may have demonstrated that the alibi witness, as a community activist, had the means to make her information available to the proper authorities, it failed to establish that she had been familiar with any charges pending against Shelton or that she had reason to recognize that she had information that would be helpful to him since she testified that she did not believe he had anything to do with the gunshots she heard.

Finally, the court held that the prosecution had not shown that the alibi witness had a reasonable motive for attempting to exonerate Shelton, whom she testified she had just met.

The court also faulted the prosecutor for going "beyond the bounds of fair advocacy" in summation by "frequently characterizing the alibi witness, in effect, as having a flawed moral character, and being generally unworthy of belief."

Justices Peter Skelos (See Profile), Anita Florio (See Profile), Ariel Belen (See Profile) and Sandra Sgroi (See Profile) joined the unsigned opinion.

Frances Gallagher of the Legal Aid Society represented Shelton.

John Castellano, Nicoletta Caferri and Jennifer Hagan appeared for the Queens District Attorney's Office. An office spokesman declined to comment.