People v. Enoe

144 A.D.3d 1052

42 N.Y.S.3d 48

2016 N.Y. Slip Op. 07977

The PEOPLE, etc., respondent,

v.Jahmal ENOE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 23, 2016.

Lynn W.L. Fahey, New York, NY (Elizabeth Budnitz and Alexis A. Ascher of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall of counsel), for respondent.

RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered May 5, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The defendant was the rear-seat passenger of a livery cab that was pulled over by three police officers for failing to signal a left turn. As the officers approached the stopped cab, Sergeant William Gaspari and another officer observed the defendant, through the rear windshield, look back over his shoulder and then shift rapidly in his seat from side-to-side and front-to-back. Sergeant Gaspari testified that he quickly approached and looked into the rear of the vehicle, focusing on the defendant, who was attempting to hide a gun behind his back. The sergeant signaled to his fellow officers that a gun was present, the defendant was removed from the back seat of the cab, and a gun was recovered. The defendant was charged with, inter alia, criminal possession of a weapon in the second degree.

Before the trial began, the People sought to limit the defense's questioning of one of the prosecution witnesses, Sergeant Gaspari, with respect to a federal civil rights lawsuit that had been filed against him by a man who claimed that Sergeant Gaspari had falsely arrested him on a made-up weapon possession charge in order to secure overtime compensation and a “credit” for a gun-related arrest. Defense counsel argued that the allegations of the federal lawsuit were relevant to the sergeant's credibility and, therefore, the defendant should be permitted to inquire on cross-examination about the lawsuit. The Supreme Court disagreed with the defendant, concluding that the line of questioning was not probative of the officer's credibility, and precluded the defense from inquiring into the underlying facts of the federal lawsuit. We reverse.

The Court of Appeals has held that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination and that civil allegations of misconduct in a federal lawsuit filed against a law enforcement agent are favorable to a defendant as impeachment evidence insofar as such allegations bear on a law enforcement officer's credibility as a witness (see People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 ; People v. Garrett, 23 N.Y.3d 878, 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 ). Furthermore, there is no prohibition against cross-examining a witness, including a police officer, about bad acts that have never been formally proven at a trial (see People v. Smith, 27 N.Y.3d at 661, 36 N.Y.S.3d 861, 57 N.E.3d 53 ; People v. Sorge, 301 N.Y. 198, 201, 93 N.E.2d 637 ).

In cross-examining a law enforcement witness, the same standard for good faith basis and specific allegations relevant to credibility applies, as does the same broad latitude to preclude or limit cross-examination (see People v. Smith, 27 N.Y.3d at 661–662, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). Counsel must first present a good faith basis for inquiring, namely the lawsuit relied upon. Second, specific allegations from the lawsuit that are relevant to the credibility of the law enforcement witness must be identified. Third, the trial judge must exercise...