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People v. McConville

Supreme Court, Bronx County

January 11, 2017

The People of the State of New York, Plaintiff,
v.
Brian McConville, Defendant.

          FOR THE PEOPLE: Darcel D. Clark, District Attorney Bronx County by Assistant District Attorneys Natasha Major and James Goward.

          FOR THE DEFENDANT: Joseph Murray, Esq. and Robert Fantone, Esq.

          Hon. Ralph Fabrizio, J.

         The issue is whether the Court should strike the testimony of the complaining witness from the trial record based on the prosecutor's unauthorized review with the witness of prior grand jury testimony and information in other documents while that witness was still on cross-examination. The defendant seeks this sanction since, inter alia, cross-examination had to be reopened because the People provided the witness's grand jury minutes to the defense only after the witness had completed his trial testimony. The Court denied an earlier defense request to strike the testimony based solely on that serious discovery violation, and ordered the lesser sanction of reopened cross examination. The People not only argue that they were legally permitted to re-prep their own witness prior to the reopened cross-examination, but claim they had "an affirmative obligation to do so." The Court considers it unacceptable for the People to have had unauthorized, substantive conversations with this witness under these circumstances. However, in this non-jury trial, the defense application to strike the witness's testimony is denied.

         Defendant, a retired New York City Police Officer and retired firefighter, was arrested on January 29, 2014 after attending a mid-winter hockey game held outdoors at Yankee Stadium. It is alleged that he and others, who have never been identified or apprehended, assaulted a private security guard working at the stadium. The complaining witness was taken to a hospital and admitted. His orbital socket was shattered, and he underwent extensive reconstructive surgery.

         Defendant waived a jury, and a non-jury trial began before this Court on Monday, November 28, 2016. The People called the complaining witness to testify. The witness underwent extensive direct, cross, redirect, and re-cross examination. During direct examination, the witness was asked about a sworn complaint he signed to initiate a civil lawsuit against defendant and others based on the same incident. The complaint named several perpetrators, including some listed as "John Does One through Ten." The witness explained on direct examination that he had not read the pleading before he swore to it, and he never alleged he was assaulted by as many as ten perpetrators. He testified he fired the attorney who drafted that pleading after discovering this error and hired a new civil attorney. The witness finished his testimony that day and was excused.

         The next day, the People disclosed they had not turned over the minutes of the complaining witness's testimony before the grand jury. The Court ordered the People to immediately provide those minutes to defense counsel. They totaled 28 pages. The Court adjourned the case until the afternoon to allow counsel time to review the minutes and consult with his client prior to requesting a remedy.

         That afternoon, counsel moved to strike the witness's testimony based on the discovery violation. He argued, inter alia, that the defendant had been prejudiced because of what he characterized to be substantive inconsistencies between the witness's trial testimony and his grand jury testimony. He also argued that the testimony before the grand jury was far more detailed than the trial testimony. The People opposed the motion to strike and suggested that the only sanction should be to allow their witness to be called for a re-opened cross-examination. Counsel argued that remedy was inadequate, and insisted that the testimony be stricken. The Court denied that application. Counsel then moved for a mistrial with prejudice, raising most of the same arguments he made in the application to strike the testimony. The Court found the People's failure to make timely disclosure of the witness's prior testimony was not willful, although it was extremely careless, and denied the application for a mistrial with prejudice. At that point, defendant asked to reopen cross examination of the complaining witness. The People contacted the complaining witness and he agreed to return to court the next day.

         On Wednesday, November 30, 2016, prior to the re-opened cross examination, the People made a motion in limine seeking to restrict the scope of the re-opened cross-examination to questions about the prior grand jury testimony. In particular, the People argued that defendant should not be permitted to cross-examine the witness about a second sworn document, called an "affidavit of merit, " filed by his second attorney in his civil case in connection with a motion for summary judgment. In that document, the complaining witness once again referred to the unidentified assailants as John Does One through Ten. Defense counsel represented he had not received that document until after the complaining witness testified. He turned it over to the People on Tuesday, November 29, 2016, in an effort to have them "correct the record" about a purported misrepresentation made by the complaining witness about his lack of awareness of the John Doe One through Ten language in the complaint at the time he signed that document, and his intimation that he hired a second civil attorney to correct that mistake. The Court denied the People's motion to restrict the scope of the re-opened cross-examination.

         When the re-opened cross-examination began, defendant asked the witness about parts of the grand jury testimony. At times, the witness seemed confused by the term "grand jury minutes." When he was first shown the minutes, he said he said he had not seen them before; at other times he testified he had seen them and reviewed them. He was shown other documents, including the "affidavit of merit, " and seemed somewhat confused about what those documents were and when he had reviewed them. At one point, he said he had reviewed the "affidavit of merit" with the prosecutor after his testimony on Monday; and testified that the prosecutor told him he would have to be recalled to testify about that document. The parties stipulated that this document had not been provided to the prosecutor until the day after the witness testified.

         The People were permitted to do some redirect examination. However, they too seemed to confuse the complaining witness with questions about when he reviewed his grand jury testimony. The Court advised the parties they should just mark the minutes for identification and have the witness begin to read them to himself and ask if he recalled seeing them at a prior time. When the witness was shown the minutes, he testified that the "first time" he saw them was "maybe last week." The prosecutor asked, "How many times did you review then?" The witness replied, "probably just once because the only reason why I recognize it is the format." The prosecutor continued, asking the witness whether he had reviewed them "after last week." The witness said, "I believe after appearing here on Monday." The witness clarified that he had actually reviewed the grand jury testimony before he testified that day. The prosecutor then asked, "And you reviewed them today?" The witness responded, "this morning."

         The Court excused the witness. Defendant argued that the People had no right to review the grand jury minutes with this witness prior to the re-opened cross examination, particularly since they knew defense counsel intended to confront the witness about purported inconsistencies between the witness's grand jury and trial testimony. One of the prosecutors assigned to the trial said, "Your Honor, I met with this witness the Wednesday before Thanksgiving, Friday after Thanksgiving, and reviewed the minutes... as well on Monday morning." The Court asked, "What about today." The prosecutor responded, "Yes, we did review."

         Defendant renewed his application to strike the witness's testimony. The other prosecutor stated, "I... often give witnesses copy of their Grand Jury minutes to review and take home with them." [1] The People asserted they have a right to provide a witness with material to review related to his testimony even after the witness has already testified and is on cross-examination. The Court, sua sponte, precluded the People from any further redirect examination and told defendant he was free to ask any other questions of the witness. Defendant asked one additional question, which had nothing to do with what he had reviewed with the prosecutor before testifying that day; the witness was again excused.

         The Court reserved decision on the defendant's motion to strike the witness's testimony and asked the parties to provide brief legal submissions stating their positions. In the People's letter submission, dated December 2, 2016, they confirmed giving the witness his grand jury minutes to review just prior to his reopened cross examination. The People state they did not draw the witness's "attention to any particular sections or pages of his transcript" as it was being reviewed. The People also revealed they discussed the substance of the "affidavit of merit" with the witness that morning. Specifically, they asked the witness to explain to them "the circumstances of the second filing." The witness referred to the sworn document as a "re-motion" filed by his second lawyer "to start the case up again because it had... been stalled." In the defendant's letter submission, he argued that "prepping the complaining witness during his cross-examination, in and of itself, constituted serious misconduct." He further argues that this additional preparation "was done in an attempt to weaken and mitigate the remedy provided... for the People's egregious Rosario violation." Defendant alleged he was irreparably prejudiced by these actions because they "impaire[ed] the integrity of the truth seeking function of the ...


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