Marc Wolinsky, for appellant.
Anne E. Oh, for respondent.
Innocence Project, Inc. and New York City Bar Association, amici curiae.
Defendant was convicted of manslaughter in the first degree for causing the death of a man by holding him in a headlock. The duration of the headlock was an important issue at trial. Defendant argues that several of the trial court's rulings in admitting and excluding evidence related to that issue were mistaken. As to one of those rulings — the court's refusal to permit defendant to refresh his witness's recollection with a statement the witness had previously given — we agree with defendant, and order a new trial.
The victim, Andrew Reister, was a bouncer in a bar. On the night in question, defendant and a young woman were in the bar, dancing on a table. Reister asked defendant to get off the table, defendant refused, and Reister pushed him off. There followed a fight. In short order, defendant got behind Reister and put his arms around his neck; one of defendant's hands was grasping the other. After an interval, Reister fell to the floor and defendant fell on top of him, not releasing his grip, though Reister seemed to onlookers to be unconscious. Several people screamed at defendant to let Reister go, and some tried without success to pull defendant away. Finally, defendant let go and ran out of the bar, leaving Reister unconscious on the floor. Reister was declared brain dead two days later.
Defendant was indicted for murder and relied on a defense of justification (self-defense). At his trial, the People asked seven of their witnesses to estimate the duration of the headlock. The estimates varied, but most put the total time, beginning when defendant's arms first went around Reister's neck and ending when he released him, at somewhere near three minutes. Two defense witnesses gave shorter estimates; by their telling, the headlock may have lasted less than a minute.
The jury acquitted defendant of murder, but convicted him of manslaughter in the first degree (causing death with the intent to cause serious physical injury [Penal Law § 125.20 (1)]) as a lesser included offense. The Appellate Division affirmed (People v Oddone, 89 A.D.3d 868 [2d Dept 2011]). A Judge of this Court granted leave to appeal (20 N.Y.3d 1102 ), and we now reverse and order a new trial.
Of the issues raised by defendant on this appeal, we find three — all related to what witnesses were or were not allowed to say about the duration of the headlock — that call for discussion. Defendant challenges the following evidentiary rulings:
(1) James Wilson, the doctor who performed an autopsy on Reister's body, was permitted to testify that in his opinion Reister's neck had been compressed for "something in the range of 2, 3, 4 minutes."
(2) When Megan Flynn, a defense witness, testified that the duration of the part of the incident she observed "could have been a minute or so, " defense counsel was not allowed to refresh her recollection with a prior statement that put the same interval at "maybe 6 to 10 seconds."
(3) Steven Penrod, an expert in eyewitness observation, was not permitted to testify that eyewitnesses routinely overestimate, by a large margin, ...