Defendant appeals from a judgment of the Supreme Court, Bronx County (Steven Lloyd Barrett, J. at application for televised testimony; Harold Silverman, J. at witness availability hearing, jury trial and sentence), rendered November 23, 2004, convicting her of assault in the second degree, and imposing sentence.
The opinion of the court was delivered by: McGUIRE, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P., David B. Saxe, David Friedman, John W. Sweeny, Jr. and James M. McGuire, JJ.
This appeal calls upon us to determine whether Supreme Court erred in allowing the complainant to give televised testimony in defendant's assault trial. Although we do not decide this appeal on federal constitutional grounds, a review of the law on the scope of a defendant's Sixth Amendment right to confront the witnesses against him or her helps explain the state law ground on which we would decide the appeal. In our view the admission of the two-way, televised testimony is not only unauthorized by either the Legislature or the inherent powers of the Judiciary, it is clearly, albeit implicitly, prohibited by the relevant provisions of the Criminal Procedure Law.
Defendant, a home health aide, briefly cared for the complainant's wife in the couple's Bronx home until the wife moved to a nursing home. Approximately two and a half months after the wife moved to the nursing home, defendant, who maintained a relationship with the couple, went to the complainant's house. While both defendant and the complainant testified that defendant helped the complainant prepare snacks to bring to the wife, they offered dramatically different accounts of what happened at the house. The complainant testified that defendant assaulted him with a hammer and demanded (and took) money from him before fleeing the house. Defendant testified that the complainant grabbed her breasts and that, to get his hands off her, she "picked up something and hit him with it." Defendant denied demanding or taking money from the complainant.
Defendant was indicted for assault in the first degree and two counts of robbery in the first degree. Prior to her trial, Supreme Court (Barrett, J.) granted the People's motion to present the complainant's testimony by television if he was unable to travel to New York to the extent of ordering a hearing on the issue of whether there was a factual necessity to permit the complainant to give televised testimony. Following the hearing, Supreme Court (Silverman, J.) determined that the People had established by clear and convincing evidence that the complainant was unable to travel to New York without seriously endangering his health. For this reason, Supreme Court concluded that he was unavailable to testify and permitted the People to present his testimony by a live, two-way television conference.
The complainant, while physically in California, gave the televised testimony. The complainant could see the courtroom, including the Judge and defendant, although the extent to which the witness could see the courtroom participants is in dispute, and could hear the proceedings in the courtroom. Those in the courtroom could see and hear the complainant. Ultimately, the jury considered four counts: one count of assault in the first degree, one count of assault in the second degree and two counts of robbery. The jury acquitted defendant of assault and robbery in the first degree but convicted her of assault in the second degree*fn1. On her appeal from her conviction of assault in the second degree, defendant's principal contention is that Supreme Court erred in permitting the complainant to give televised testimony.
Even assuming that defendant otherwise had a full opportunity to cross-examine her accuser, it does not follow that her Sixth Amendment right of confrontation was not violated. The Confrontation Clause of the Sixth Amendment "provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross examination" (Coy v Iowa, 487 US 1012, 1017 ). The former right "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact"(id. at 1016 [emphasis added]), and, due to the undeniably "profound effect upon a witness of standing in the presence of the person the witness accuses" (id. at 1020), "serves much the same purpose" as the latter right in "ensur[ing] the integrity of the factfinding process" (id. [internal quotation marks omitted]).
More recently, in Crawford v Washington (541 US 36, 51 ), the Supreme Court observed the following about testimonial statements admitted against an accused: "The constitutional text, like the history underlying the common-law right of confrontation, . . . reflects an especially acute concern with [this] specific type of out-of-court statement." The statements by defendant's accuser in this case unquestionably were testimonial and, at least in a physical sense, those statements were made out of court.
To be sure, the Supreme Court also has emphasized that it "ha[s] never held ... that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial" (Maryland v Craig, 497 US 836, 844  [emphasis in original]), and that "in Coy v Iowa, we expressly left for another day the question whether any exceptions exist to the irreducible literal meaning of the Clause: a right to meet face to face all those who appear and give evidence at trial" (id. [internal quotation marks, ellipsis and emphasis omitted]). In Maryland v Craig, the Court upheld the receipt into evidence, in accordance with the required findings and procedures specified by the Maryland statute under constitutional challenge, the testimony of a child witness, who was alleged to be the a victim of child abuse, given by one-way closed circuit television even though the witness could not see the defendant from the room outside the courtroom in which she was questioned. The majority, whose opinion was delived by Justice O'Connor, joined by Justices Rehnquist, White, Blackmon and Kennedy, held that "a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured" (497 US at 850). The dissent, delivered by Justice Scalia, joined in by Justices Brennan, Marshall and Stevens, argued that the "categorical guarantee" (id. at 860) of a face-to-face confrontation could not be overcome by the policy judgments of the Maryland legislature relating to the commission and prosecution of child abuse crimes (id. at 861). Stressing the "explicit constitutional text" (id.), Justice Scalia would have found unconstitutional this public policy exception to the constitutional guarantee that " [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him'" (id. at 870, quoting the Sixth Amendment [emphasis in original]).
Before Maryland v Craig was decided, the Court of Appeals upheld, against a facial challenge premised on the Sixth Amendment right of confrontation, the provisions of CPL article 65, a comprehensive legislative enactment "authoriz[ing], in limited circumstances, the use of live two-way closed-circuit television as a method of permitting certain child witnesses to give testimony in sex crime cases from a testimonial room ... separate and apart from the courtroom" (People v Cintron, 75 NY2d 249, 253-254  [footnotes omitted]). That legislative scheme reflected the Legislature's considered policy decisions in an effort to balance important but competing concerns. As the Court stated, "Article 65 is designed to further the aim of insulating child witnesses from the trauma of testifying in open court and also, under certain conditions, from having to testify in the presence of the defendant while, at the same time, fully preserving the defendant's constitutional rights" (id. at 254).
After Maryland v Craig was decided, a panel of the Second Circuit rejected a defendant's contention that his constitutional right to confront the witnesses against him was violated by the admission at trial of the testimony of a government witness who testified via two-way, closed circuit television from a remote location (United States v Gigante, 166 F3d 75, 79 , cert denied 528 US 1114 ). After an evidentiary hearing was held on the government's application, the District Court issued an order authorizing the closed-circuit presentation of the witness' testimony on the ground that the witness was too ill to travel to court. Significantly, the District Court issued the order despite the absence of any Congressional enactment specifically authorizing the receipt of testimony at trial against a criminal defendant via closed-circuit, two-way television. Rather, as stated by the Second Circuit, the District Court Judge "bas[ed] his decision upon his inherent power under Fed. R. Crim. P. 2 and 57(b) to structure a criminal trial in a just manner" (id. at 80 [internal quotation marks omitted]). Notably, the Second Circuit's decision does not discuss - presumably the issue was not raised - the question of whether the District Court had the inherent authority to permit the televised testimony.
Defendant argues, among other things, that this case is distinguishable from Maryland v Craig because securing the testimony of a witness who is unavailable to testify due to poor health is not a sufficiently important public policy concern to justify the attendant curtailment of a defendant's Sixth's Amendment right of confrontation. In this regard, defendant relies in particular on the en banc decision of the Eleventh Circuit in United States v Yates (438 F3d 1307 ), in which the testimony of two witnesses who were unwilling to travel from Australia to the United States to testify was presented to the jury by live, two-way video teleconference (id. at 1309, 1315). The Eleventh Circuit accepted the District Court's conclusion that the witnesses were necessary to the prosecution's case (id. at 1316), but held that under the circumstances presented, "the prosecutor's need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the Defendants' rights to confront their accusers face-to-face" (id.).
Defendant also challenges the finding that the witness was unavailable to testify due to poor health, and stresses that the prosecution's expert, when asked whether the witness would survive a trip back to New York, responded "You know, I suppose he would." In addition, defendant offers two other fact-based reasons, both of which she raised in Supreme Court, to support her contention that the televised testimony violated her Sixth Amendment right of confrontation. First, defendant maintains that the witness was unable to see clearly the participants in the courtroom in New York. Second, defendant objects, albeit not in the argument section of her main brief, that no New York court officer or any other New York judicial official was present in the room in California to supervise the proceedings and make sure that the witness was not improperly communicated with during the televised testimony.*fn2
Finally, defendant also argues that, given changes in the composition of the United States Supreme Court since Maryland v Craig was decided, the Supreme Court as presently constituted likely would rule that her Sixth Amendment right of confrontation was violated*fn3. Of course, however, a decision of the United States Supreme Court is binding on us unless and until it is overruled. An argument that the Supreme Court will or likely will overrule one of its decisions, whatever force the argument may have in a particular case, does not undermine the binding nature of the precedent; our office is not to predict the law, but to declare and apply it.
In any event, we need not decide any of defendant's specific contentions or reach the federal constitutional question pressed upon us by the parties. The Legislature has authorized trial courts to admit televised testimony only by child witnesses in certain sex crime cases and under carefully specified circumstances. In this crucial respect, Maryland v Craig and People v Cintron are distinguishable in that the abridgment, albeit not the violation, of the defendants' right to confront the witnesses against them in these cases was authorized by statutes reflecting critical public policy choices by the legislative branch.
If trial courts in New York have the inherent authority to admit the live, two-way, televised testimony of elderly or infirm witnesses who are unable to appear in court without endangering their lives, at least four confounding questions arise. (1) Was the enactment of CPL article 65 unnecessary in the sense that even without article 65 trial courts could have exercised that inherent authority and received the live, two-way, televised testimony of child witnesses in certain sex crime cases under circumstances identical or similar to those specified by the Legislature in article 65? (2) If the answer to the first question is yes, can that answer be reconciled with the fundamental precept of separation of powers committing critical public policy judgments exclusively to the legislative branch (see Bourquin v Cuomo, 85 NY2d 781, 784  ["the constitutional principle of separation of powers . . . requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies"] [citations omitted]), not to the judicial branch or the judicial branch acting at the behest of an executive branch official, i.e., the District Attorney? (3) If the answer to the first question is yes, could the Judiciary invoke its inherent authority and permit, for example, the receipt of live, two-way, televised testimony either from child witnesses who are 15 years old or less (despite the Legislature's determination to authorize such testimony only by child witnesses who are 14 years old or less [see CPL 65.00(1)]) or in prosecutions under Penal Law article 263, entitled "Sexual Performance By A Child" (despite the Legislature's determination to limit the offenses to those defined in Penal Law article 130 and Penal Law §§ 255.25, 255.26 and 255.27 [see CPL 65.00(1)])?*fn4 (4) Whatever the answer to the first question is, can the enactment of the carefully circumscribed authority conferred by article 65 be thought to authorize an expansion of that authority by the judicial branch or the judicial branch acting at the behest of the executive branch?
As is both evident from Maryland v Craig and People v Cintron and indisputable in any event, the enactments at issue in both cases reflected critical policy judgments by the legislative branch. For that reason, we doubt that the answer to the second question is yes. But that question need not be decided for this case turns on the answer to the first, third and fourth questions. In our view, the answer to these three questions is no, and that answer compels the conclusion that the trial court had no authority to permit the live, two-way, televised testimony admitted against defendant. If, as we think is self-evident, the Judiciary lacks the authority effectively to make piecemeal revisions to CPL article 65 like those hypothesized in the third question, it is impossible to understand how the Judiciary could have the authority effectively to make the more sweeping revisions to CPL article 65 that actually would be made by sustaining the use of the televised testimony in this case. As discussed below, moreover, the conclusion that the televised testimony in this case is not authorized is supported by more than logic.
The question of the authority of the trial court to admit the televised testimony is preserved for our review. In an opinion dated March 22, 2004, Justice Steven L. Barrett, who did not preside over the trial, granted the People's application for a conditional examination of the witness pursuant to CPL 660.20. As Justice Barrett noted, however, "[s]uch an examination . . . contemplates the witness' presence in New York state." Thereafter, the People asserted that the witness was too ill to travel to New York and sought an order permitting the receipt of the witness' testimony at trial via a live, two-way televised procedure whereby the witness would remain in California. In opposing the People's motion, counsel argued both that the procedure would violate defendant's Sixth Amendment right to confront the witness and that "[t]he procedure . . . the [P]eople seek to conduct is not authorized in New York." In support of the latter argument, counsel expressly argued that New York courts "have recognized video testimony of a witness, in lieu of physical presence, only when authorized by statute." Justice Barrett rejected that argument and granted the People's motion in a written decision and order dated August 10, 2004. Justice Barrett relied on "the inherent power of a trial court to fashion procedures that will ensure the integrity of the trial process." He cited Judiciary Law § 2-b(3), which provides that "[a] court of record has power ... to devise and make new process and forms of proceedings, ...