author: Smith, J. Rivera, J.

text:
    [12 NE3d 1079, 989 NYS2d 649]
    The People of the State of New York, Respondent, v Terence McCray, Appellant.
    Argued February 13, 2014;
    decided May 1, 2014

      POINTS OF COUNSEL

      Paul J. Connolly, Delmar, for appellant.
    I. County Court violated appellant’s right to confront and cross-examine witnesses and otherwise to prepare his defense by failing to disclose all of complainant’s mental health records that were potentially relevant to her credibility or to her account of the alleged crime, or which could have led to discovery of potentially admissible evidence or aided in cross-examining prosecution witnesses. (Crane v Kentucky, 476 US 683; California v Trombetta, 467 US 479; Olden v Kentucky, 488 US 227; Delaware v Van Arsdall, 475 US 673; Davis v Alaska, 415 US 308; Douglas v Alabama, 380 US 415; Brady v Maryland, 373 US 83; Stickler v Greene, 527 US 263; United States v Gil, 297 F3d 93; Johnson v Folino, 705 F3d 117.) II. County Court erred in not reviewing the records of complainant’s fall 2009 hospitalization and in not disclosing to appellant such of those records as could potentially aid the defense. (People v Bailey, 58 NY2d 272; People v Jackson, 291 AD2d 930, 98 NY2d 677; People v Gissendanner, 48 NY2d 543; People v Yavru-Sakuk, 4 NY3d 814.) III. Defense counsel’s failure to object to the multiple out-of-court statements of complainant claiming to have been raped or sexually assaulted, recounted by the police and in medical and paramedical records, and his failure to request limiting instructions as to the statements to the police, rendered him ineffective under the State and Federal Constitutions. (People v Rice, 75 NY2d 929; People v Seit, 86 NY2d 92; People v O’Sullivan, 104 NY 481;
      People v Deitsch, 237 NY 300; People v Rosario, 17 NY3d 501; People v McDaniel, 81 NY2d 10; People v Shepherd, 83 AD3d 1298; People v Felix, 32 AD3d 1177, 7 NY3d 925; People v Fabian, 213 AD2d 298, 85 NY2d 972; People v Santos, 243 AD2d 276.) IV. County Court committed reversible error by precluding appellant from examining complainant about a diagnosis that she was hypersexual. (Crane v Kentucky, 476 US 683; California v Trombetta, 467 US 479; Davis v Alaska, 415 US 308; Douglas v Alabama, 380 US 415; People v Baranek, 287 AD2d 74; People v Douglas, 29 AD3d 47, 6 NY3d 847; People v Rivera, 138 AD2d 169; People v Crimmins, 36 NY2d 230.) V. County Court committed reversible error in sustaining prosecution objections to multiple defense questions of complainant and complainant’s mother, which were designed to elicit testimony as to complainant’s erratic and unstable behavior, and thus to aid the jury in assessing her credibility. (People v Klem, 80 AD3d 777; People v Baranek, 287 AD2d 74; People v Dudley, 167 AD2d 317; People v Phipps, 220 AD2d 238; People v Tucker, 171 Misc 2d 1; People v Cesar G., 154 Misc 2d 17; People v Rensing, 14 NY2d 210; People v Manzanillo, 145 Misc 2d 504; People v Plaisted, 2 AD3d 906, 2 NY3d 744; People v Carter, 50 AD3d 1318.)

      P. David Soares, District Attorney, Albany {Steven M. Sharp of counsel), for respondent.
    I. County Court’s in camera review appropriately balanced defendant’s due process rights and the victim’s privacy rights and represented a sound exercise of discretion. (Brady v Maryland, 373 US 83; People v Bryce, 88 NY2d 124; Giglio v United States, 405 US 150; People v Fuentes, 12 NY3d 259; People v Vilardi, 76 NY2d 67; People v Gissendanner, 48 NY2d 543; People v Tissois, 72 NY2d 75; People v De Jesus, 69 NY2d 855; Pennsylvania v Ritchie, 480 US 39; Jaffee v Redmond, 518 US 1.) II. Defendant was responsible for obtaining the victim’s medical records relative to her hospitalization in the fall of 2009, not the court or the People. (People v Chatman, 186 AD2d 1004; People v Kelly, 62 NY2d 516; People v Hayes, 17 NY3d 46; People v Reedy, 70 NY2d 826; People v Sealey, 239 AD2d 864; People v Darling, 276 AD2d 922.) III. Defendant received effective assistance of counsel. (People v Benevento, 91 NY2d 708; People v Felder, 47 NY2d 287; People v Claudio, 83 NY2d 76; People v Hobot, 84 NY2d 1021; People v Baldi, 54 NY2d 137; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; People v Aiken, 45 NY2d 394; People v Rivera, 71 NY2d 705; People v Angelakos, 70 NY2d 670.) IV County Court did not preclude defendant from questioning witnesses about the victim’s purported hypersexuality. (People v

      Williams, 81 NY2d 303; People v Corby, 6 NY3d 231; People v Scott, 16 NY3d 589; People v Halter, 19 NY3d 1046.) V. County Court properly sustained objections to questioning the victim’s mother about incidents that were only relevant to the victim’s credibility. (People v Pavao, 59 NY2d 282; People v Duffy, 36 NY2d 258; People v Klem, 80 AD3d 777.) VI. Defendant’s claims in his pro se supplemental brief are without merit.
   OPINION OF THE COURT

Smith, J.

Defendant, prosecuted for rape, sought disclosure of the complainant’s mental health records. The trial court reviewed the records in camera and disclosed only a few of them. We hold that the court did not abuse its discretion.

I

Defendant, 40 years old, and the complainant, 18, met for the first time in April 2009. They had several telephone conversations after their first meeting, and agreed to go on a date on May 26, 2009.

Both of them testified to what happened that evening, and their accounts, up until the final, critical events, match in many respects. They visited a friend of defendant at his home, tried unsuccessfully to go to a bar (which excluded the complainant because of her age) and then went to the home of another of defendant’s friends, who left them to themselves. While there, they kissed, and touched each other intimately, but did not have intercourse. Defendant then led the complainant to an abandoned house.

Some time later, the complainant called 911 from a pay phone near the house, weeping and struggling to speak. She said that defendant had beaten her, made her beg for her life, and raped her. A police officer who approached her while she was on the phone saw blood on her clothes and her face. Photographs and hospital records show that she had abrasions and bruises on her left arm and left cheek, and lacerations to the inside of her mouth. Defendant, meanwhile, had gone to the home of a friend near the abandoned house, and (according to the friend’s testimony) banged on the door and asked to be let in because a woman was “exposing herself and . . . chasing him.” Defendant had a bite mark on his forearm.

The key issue at trial, of course, was what happened in the abandoned house. The complainant testified that defendant pinned her against a wall, forced his tongue into her mouth, rubbed against her and demanded sex. She refused and a struggle followed, in which each hit the other in the face, defendant choked the complainant and the complainant bit him. Eventually, the complainant said, she “gave in” and “let him have it because he said if I did, I could live.” They had intercourse, and she left the house.

Defendant testified that the couple engaged in foreplay and consensual sex. Afterwards, the complainant said “I want some money” or “I want to be compensated.” This led to a loud exchange of epithets, after which, defendant said, the complainant “grabbed my pants and . . . started heading out the door with them.” Defendant tackled her, and her face hit the floor. He then sat on her back, tried to retrieve his pants from underneath her, and noticed that she had removed some of his money and had it in her hand. As he tried to wrench it away, she bit him. Eventually, he retrieved his pants and his money, and the complainant got up and walked out.

The outcome of the case obviously depended on which witness the jury believed. Seeking information that would undermine the complainant’s credibility, defendant asked before trial that the People he directed to obtain her mental health records and turn them over to the defense. The court directed instead that the records be submitted to it in camera. From the thousands of documents submitted, the court selected 28 pages for disclosure, and withheld the rest.

The records that were disclosed showed, and the jury was informed at trial, that the complainant had very significant mental health problems. Her diagnoses, as summarized in her own testimony, included “Bipolar, Tourettes, post-traumatic stress disorder, epilepsy.” It was also brought out that she suffered from attention deficit disorder and hypersexuality; that she had reported that she “visualized” or “sense[d] the presence of” dead people; that she had cut her flesh with sharp objects; that her bipolar disorder caused her “on occasion” to be “explosive and angry” and to “physically strike out at people”; that at the time of the incident she was taking medications, was receiving treatment from a mental health facility, and was also seeing a counselor weekly or biweekly; that she failed “once in a while” to take her medications, and that on the night of the alleged rape she could not remember whether she had taken them that day; that, after the alleged rape and before the trial, she had been hospitalized for an overdose of drugs; and that that was not her first suicide attempt, though she said it was her first “serious” one.

Defendant was convicted of rape. The Appellate Division affirmed, holding among other things, after examining the undisclosed documents, that the trial court did not err in withholding them (People v McCray, 102 AD3d 1000 [3d Dept 2013]). Two Justices dissented, concluding that the undisclosed records “raise issues that would affect the victim’s credibility or her ability to recall events” and that some of them “would be extremely damaging to the People’s case” (id. at 1011). A Justice of the Appellate Division granted leave to appeal, and we now affirm.

II

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed (People v Vilardi, 76 NY2d 67, 77 [1990]).

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed (see People v Gissendanner, 48 NY2d 543, 548 [1979]).

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion.

As to most of the documents in question, we have no hesitation in agreeing with the courts below that they are either cumulative or of little if any relevance to the case. The jury knew that the complainant had “visualized” her deceased grandfather and had said that she “could sense the presence of dead people.” The undisclosed records contain other examples of what could be called hallucinations or distorted perceptions, but the other examples were no clearer or more dramatic than the ones the defense already had; the trial court could reasonably conclude they would add little force to defendant’s attacks on the complainant’s credibility.

There are also many references in the undisclosed documents to the complainant’s tendency to misremember or misunderstand events. It is hard to imagine, however, a juror who could attribute the complainant’s testimony here — a claim of rape, made immediately after what defendant testified was consensual sex followed by a dispute over payment — to a failure of recollection or a misunderstanding, however susceptible to those failings the complainant may have been. She certainly did not fantasize or misremember that she and defendant had a violent encounter: they both had the wounds to prove it. And their descriptions of that encounter are so starkly different that if one version is not a lie, the other must be. With one possible exception, which we discuss below, there is nothing in the undisclosed records suggesting that the complainant had a tendency to make accusations she knew to be false.

The undisclosed records do show that the complainant had made several previous complaints of sexual abuse. But — again with one exception — these were not complaints that anyone had used violence to force sex on her. And — subject to the same exception — nothing in the records suggests that the complaints were untrue. Certain of them may show that, before the complainant reached the age of consent, a number of boys or men took advantage of the hypersexuality that, as the jury knew, was among her mental problems. We agree with the Appellate Division majority that this is exactly what the diagnosis of hypersexuality would lead one to expect, and that the details of the complainant’s sexual experiences were of no more than marginal relevance to this case.

We also agree with the Appellate Division majority that, in all likelihood, proof of these details was prohibited by the Rape Shield Law (CPL 60.42), which bars, subject to certain exceptions, “[e]vidence of a victim’s sexual conduct” in sex offense cases. We recognize that this likelihood is not necessarily conclusive on the Brady issue. Inadmissible evidence can be material under Brady if it will be useful to the defense, perhaps as a lead to admissible evidence or a “tool in disciplining witnesses during cross-examination” (United States v Gil, 297 F3d 93, 104 [2d Cir 2002]). And even the question of admissibility cannot be decided definitively, because defendant has not seen the documents and has had no chance to make an offer of proof that might bring the evidence within an exception to the Rape Shield Law (see CPL 60.42 [5] [permitting the trial court to admit evidence that otherwise would be excluded, if it determines after an offer of proof that the evidence is “relevant and admissible in the interests of justice”]). But any evaluation of materiality under Brady involves a prediction about the impact of undisclosed material on a trial, and here the existence of a statute that would likely keep out of evidence not only the records themselves but the facts underlying them supports the view of the courts below that their impact, if any, would be slight.

The exception we have mentioned provides the strongest basis for defendant’s argument on appeal. Records from 2004, when the complainant was 13, say that she reported having been sexually assaulted by her father. She claimed that he pinned her against a wall and tried to rape her, but she escaped. The records show that her father had in fact been physically abusive, but they also show that the complainant’s mother did not believe the charge of sexual assault was true. One record refers to the allegation as “unfounded,” without further explanation. These documents give us some pause (cf. People v Hunter, 11 NY3d 1 [2008] [finding a Brady violation, under a “reasonably probable” materiality standard, where a prosecutor failed to disclose the complainant’s report that another man had committed a similar rape]).

But the complainant’s 2004 accusation of her father was far removed in time and quite different from the accusation she made in 2009 against defendant. It was an accusation of abuse by a family member, made not in a 911 call immediately after the event, but in the course of treatment by mental health professionals. And even if the accusation was not true, nothing in the records indicates that the complainant fabricated it, rather than misinterpreted or imagined something her father had done. It is, as we have said, almost impossible that a jury could think the complainant’s accusation in this case to be an honest but mistaken one, as the accusation against her father may have been.

We therefore hold that the trial court could reasonably think there was no more than a remote possibility that disclosure of the records it withheld would lead to defendant’s acquittal. The court was within its discretion in finding the records’ relevance to be outweighed by the complainant’s legitimate interest in confidentiality.

Defendant’s remaining arguments lack merit.

Accordingly, the order of the Appellate Division should be affirmed.

Rivera, J.

(dissenting). Pretrial disclosure to the defendant of favorable and material evidence is constitutionally required to ensure the defendant’s rights of due process and to a fundamentally fair trial (Brady v Maryland, 373 US 83, 87 [1963]; US Const, 14th Amend, § 1). Disclosure of exculpatory and impeachment evidence is essential to establishing a defense, and furthers the goals of seeking the truth through the trial process (see generally Giglio v United States, 405 US 150 [1972]). Despite the importance of disclosure to the defendant and the proper functioning of our criminal justice system, the majority concludes that denial of vast amounts of revealing medical documents was proper in this case. I disagree.

Here, credibility issues were central to the case, and there was evidence supporting the defendant’s version of events, thus requiring the jury to decide between divergent stories. There is a “reasonable possibility” that failure to disclose documents from the complainant’s mental health medical records, which reveal her history of memory loss, potential fabrications, substance abuse, distortions in her view of interpersonal relationships, and information suggesting unsubstantiated claims of prior rape and sexual abuse, contributed to the verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). Therefore, the trial court abused its discretion in denying disclosure.

In addition, to the extent the majority suggests that the defendant’s challenge to the medical records in this case is limited to a Brady violation, I disagree with this narrow interpretation of the defendant’s constitutional rights. Denial of documents that would have assisted the defense in preparing for cross-examination of the complainant, including questioning for impeachment purposes, implicates the defendant’s confrontation rights.

I.

Our Federal and State Constitutions guarantee every defendant a fair trial (US Const 5th Amend; NY Const, art I, § 6). Essential to this guarantee, which is grounded in the Due Process Clause, is the defendant’s right to disclosure of evidence “favorable to the accused and material to guilt or punishment” (Pennsylvania v Ritchie, 480 US 39, 57 [1987], citing United States v Agurs, 427 US 97 [1976]; Brady, 373 US at 87). As the majority concedes, evidence confidential in nature is subject to disclosure when the state’s interest in maintaining confidentiality is outweighed by a defendant’s constitutional rights of access to materially favorable evidence (majority op at 198, citing People v Gissendanner, 48 NY2d 543, 548 [1979]). Whether and to what extent confidential information should be disclosed is within the trial court’s purview, subject to the proper exercise of its discretionary power (Gissendanner, 48 NY2d at 548). Disclosure is required, and the court affords access, “to otherwise confidential data relevant and material to the determination of guilt or innocence, as, for example, . . . when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial” (id.).

In order to determine whether the denial of the documents to the defendant constituted a violation of his constitutional rights under Brady, we must decide whether there is a “reasonable possibility that the failure to disclose [the medical reports] contributed to the verdict” (Vilardi, 76 NY2d at 77 [internal quotation marks omitted]). In Vilardi, we adopted the “reasonable possibility” test recognizing that it was the proper measure of “materiality” (id.). Clearly, the test is meant to ensure defendants’ access to material available in accordance with Brady and our state constitutional guarantees, and sets a high bar against nondisclosure. As we stated, the “reasonable possibility” standard is “essentially a reformulation of the ‘seldom if ever excusable’ rule” (id.; see Agurs, 427 US at 106 [“When the prosecutor receives a specific and relevant (discovery) request, the failure to make any response is seldom, if ever, excusable”]).

IL

No less essential to the defense than the due process rights to disclosure of favorable and material evidence is the defendant’s right to confrontation of adverse witnesses, embodied in both our Federal and State Constitutions (US Const 6th, 14th Amends; NY Const, art I, § 6). The majority avoids consideration of the defendant’s confrontation rights, instead choosing to analyze the defendant’s challenges under Brady (majority op at 198). I agree that the defendant’s appellate claims are properly the subject of Brady analysis, but they also implicate the defendant’s confrontation rights.

The defendant argues that he was entitled to access the complainant’s mental health records because they were necessary for him to effectively cross-examine the complainant, especially with respect to her reliability, or would have led to discovery of this type of evidence. He contends that the failure to disclose these documents violated his constitutional rights to confront and cross-examine witnesses. His arguments present a viable confrontation rights claim.

Denial of documents that provide the defense with material to prepare for cross-examination and impeachment of the complainant in this case of alleged rape goes to the very core of the right to confront adverse witnesses. Without access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth finding process. I would ground this right in our New York State Constitution. We have previously recognized that the protections under our constitution extend beyond those found in our federal counterpart, which sets the floor, but not the ceiling, for the rights of an individual (People v LaValle, 3 NY3d 88, 129 [2004]; accord Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159 [1978]).

While our constitutional language mirrors that of the Federal Constitution (compare US Const 6th Amend [“(t)he accused shall enjoy the right ... to be confronted with the witnesses against him”] with NY Const, art I, § 6 [“the party accused shall be allowed to . . .be confronted with the witnesses against him or her”]), federal consideration of this issue is uncompelling. In Pennsylvania v Ritchie, the plurality rejected a Confrontation Clause challenge to the denial of documents, limiting the application of the Confrontation Clause to a defendant’s opportunity to cross-examine:

“the Confrontation Clause was not violated by the withholding of the [confidential] file; it only would have been impermissible for the judge to have prevented Ritchie’s lawyer from cross-examining the [complainant]. Because defense counsel was able to cross-examine all of the trial witnesses fully, we find that the Pennsylvania Supreme Court erred in holding that the failure to disclose the [confidential] file violated the Confrontation Clause” (480 US at 54).

Many states have found the plurality’s reasoning unpersuasive, including Pennsylvania, the state whose law was at issue in Ritchie (see Commonwealth v Lloyd, 523 Pa 427, 432, 567 A2d 1357, 1359 [1989] [defendant’s state confrontation clause rights violated where he was denied access to the contents of the complainant’s psychiatric records]; accord Jones v State, 297 Md 7, 464 A2d 977 [1983] [defendant entitled by common law to inspect grand jury minutes for cross-examination purposes]; Commonwealth v Stockhammer, 409 Mass 867, 570 NE2d 992 [1991] [under state confrontation clause defendant can inspect complainant’s rape victim counseling records, without in camera inspection, for evidence of prejudice or motive to fabricate by the complainant]; but see State v Donnelly, 244 Mont 371, 798 P2d 89 [1990], revd on other grounds State v Imlay, 249 Mont 82, 813 P2d 979 [1991] [Montana constitution does not afford greater protection than the Federal Constitution]). Similarly, at least one federal circuit has rejected the narrow confrontation clause analysis in Ritchie (see Wallace v Price, 2002 WL 31180963, *22, 2002 US Dist LEXIS 19973, *72 [WD Pa, Oct. 1, 2002, civil action No. 99-231], report and recommendation adopted 265 F Supp 2d 545 [WD Pa 2003], affd 243 Fed Appx 710 [3d Cir 2007] [“plurality’s reasoning did not garner a majority of the court” and is therefore not binding]).

In light of the broader guarantees provided under our State Constitution, and because of the important role of cross-examination to ensuring both the rights of the defendant and the truth seeking functions of our criminal justice system, I would reject the narrow interpretation of the Ritchie plurality (see Ritchie, 480 US at 66 [Brennan, J., dissenting] [“(the plurality’s) interpretation ignores the fact that the right of cross-examination also may be significantly infringed by events occurring outside the trial itself, such as the wholesale denial of access to material that would serve as the basis for a significant line of inquiry at trial”]). As we have stated:

“[I]n determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States” (People v Barber, 289 NY 378, 384 [1943]).

There is no need to address the boundaries of the defendant’s confrontation claim in this case, because, as discussed herein, there is a reasonable possibility that disclosure of the documents would have resulted in a different outcome at trial (Vilardi, 76 NY2d at 77). Claims based on the defendant’s confrontation rights may require application of a lower threshold to establish violation of those rights, but certainly are not subject to greater scrutiny. Therefore, whether analyzed as a violation of the defendant’s confrontation rights, or rights protected under Brady, I would find the trial court’s denial of the documents constituted an abuse of discretion.

III.

The trial court and the Appellate Division rejected an absolute prohibition on disclosure, and instead concluded that the defendant was entitled to certain of the complainant’s medical records. At the Appellate Division, the majority and dissenting Justices agreed that the state’s interest in maintaining the confidentiality of complainant’s medical records must cede to the defendant’s constitutional rights, and that the defendant was entitled to review at least some of the medical documents (People v McCray, 102 AD3d 1000, 1005 [3d Dept 2013]; see also id. at 1010-1011 [McCarthy, J., dissenting]). Thus, this case does not involve the propriety of an absolute prohibition on confidential information, but rather the extent of disclosure required to protect defendant’s rights while recognizing the state’s interest in confidentiality.

As an initial matter, the Appellate Division erred in allowing “an appropriate sample” of the complainant’s medical documents to substitute for a fuller disclosure (McCray, 102 AD3d at 1005). A sample means an example of something else: “a representative part or single item from a larger whole or group” (Merriam Webster’s Collegiate Dictionary 1034 [10th ed 1996]). A sample document, by its nature, shares only general attributes, and not specific peculiarities, with other documents from the “larger whole or group.” A single document that discusses a medical condition is thus a “sample” of other documents discussing the same condition.

Here the majority does not specifically reject the Appellate Division’s reference to this improper standard, but concludes that many of the undisclosed documents are “cumulative” and therefore not subject to disclosure (see majority op at 198-199). However, the undisclosed documents are not merely “cumulative” in a legal sense. Cumulative evidence is “[a]dditional evidence that supports a fact established by existing evidence” (Black’s Law Dictionary 636 [9th ed 2009]). It can be excluded by New York courts when “its admission would prolong the trial to an unreasonable extent without any corresponding advantage”; that is, when it will prove a fact that other evidence has already proven (People v Davis, 43 NY2d 17, 27 [1977]; see also People v Petty, 7 NY3d 277, 286 [2006]; People v Corby, 6 NY3d 231, 235-236 [2005]). Sample documents prove only the general principle that they embody. Assuming that other documents in the “larger whole or group” prove specific facts, those documents are not “cumulative” of the sample document (cf. People v Russell, 79 NY2d 1024, 1026 [1992] [four noneyewitness photo identifications not cumulative of eyewitness identifications]; People v Linton, 166 AD2d 670, 671 [2d Dept 1990] [the testimony of different social workers was not cumulative when “(e)ach social worker had a different relationship and experience with the victim”]). Cases are made or unmade by specifics, not generalities. Therefore, sample documents that share only general characteristics with a corpus of documents cannot displace the evidentiary value of documents that uniquely prove specific facts.

The risk attendant on selecting a “sample” from the universe of confidential records is that the undisclosed document may contain information about alternative diagnoses or treatment protocols even if the substantive content is representative of other documents containing the same underlying information but with different conclusions. Another risk is that the sample may lack a fuller and more nuanced description of the same information contained in the disclosed sample.

Review of the complainant’s disclosed and undisclosed documents illustrates the point. The majority of the documents disclosed to the defendant appear to consist of short, “progress notes” or intake forms, generated by a therapist or other health care practitioner, and do not reflect a full analysis of the complainant’s condition. Some contain phrases which suggest significant problems, such as a history of auditory and visual hallucinations, poor impulse control and questionable judgment, but do not adequately reveal the root causes or their impact over time on the complainant. What are missing from the sample, and contained in the undisclosed documents, are narratives based on discussions and professional analysis of the complainant that provide a fuller picture of the complainant’s mental health history and conditions and how they may affect her veracity as well as her ability to comprehend and accept reality. For example, one undisclosed report revealed the complainant has a very poor perception of reality, and noted the complainant’s distortions of her interpersonal relationships, leading the health care practitioner to write that the complainant suffers from wishful thinking about relationships with males with whom she is recently acquainted. Similarly, another undisclosed document revealed complainant reported dissociative episodes. The “sample” of disclosed documents did not provide this type of information about the complainant.

Applying the correct standard, the documents could properly be excluded only if there is no reasonable possibility that they contain information that if disclosed would have resulted in a different outcome at trial (majority op at 200-201). I disagree that we can conclude on this record that there is no reasonable possibility that the undisclosed records would have affected the outcome of this case, that is to say that there is no “substantial basis for claiming materiality” (see Agurs, 427 US at 106).

Like the majority, I begin my analysis with a review of the information contained in the disclosed documents and compare it to the information in the undisclosed medical records. The complainant’s written medical history is extensive and spans years of treatment, primarily describing her mental health services and diagnoses, and includes references to incidents that occurred when the complainant was seven years old.

The trial court disclosed a mere 28 pages, which, with few exceptions, can best be described as brief if not cursory updates of the complainant’s condition based on interviews and reviews by a series of health care practitioners, created from different sources, and includes records from episodic hospitalizations and long-term counseling. The majority of these disclosed documents make shorthand references to several of the complainant’s mental health and behavioral issues.

The documents state that the complainant is diagnosed as bipolar, and suffered from Tourette’s syndrome, post-traumatic stress disorder, attention deficit disorder and epilepsy. They further state that for years she was on several medications, and at times she failed to take her medications as prescribed, including close to the time when she met the defendant. There are documents indicating that she had been hospitalized due to her mental health conditions and suicidal ideation. The documents contain additional references that she suffered from auditory and visual hallucinations; was once found along a local highway and could not articulate how she got there; she sensed and spoke to dead people; and she had been experiencing “psychotic symptoms.”

The disclosed documents present information about what must be recognized as severe mental health issues and reveal a history of physical and sexual abuse. While the documents disclosed information about the complainant’s mental health useful to the defendant, they did not reveal the full range of medical and behavioral issues that implicate the complainant’s credibility.

For example, a review of the undisclosed medical records reveals a document that indicates the complainant suffers from memory loss, has difficulty accurately recalling events, has a distorted view of interpersonal relationships and admits to lying. The same undisclosed document also reveals complainant’s memory can be selective; she forgets good experiences with people if there are subsequent bad experiences.

Other documents state that complainant’s mental health condition will deteriorate as she grows older. I, therefore, disagree with the majority’s conclusion that most of the undisclosed documents are merely more of the same, that they lack information distinct from that contained in the disclosed documents, and that the information, if known to the jury, would not have a “reasonable possibility” of resulting in acquittal.

The majority states that medical records referencing the complainant’s history of deliberate untruthfulness, as well as her inability to recall events, would have made no difference to the jury because the complainant’s failure to recollect or her likelihood to misunderstand events could not have affected her ability to recall the alleged rape, and that the other evidence and the defendant’s own testimony supported the complainant’s claims that they had a “violent encounter” (majority op at 199). According to the majority, the jury was left to decide who was lying and nothing in the undisclosed documents, with one exception, suggests that she makes false accusations. Yet, the undisclosed medical records contain several references to the complainant’s inability to correctly recall events. While disclosed documents and the complainant’s own testimony reveal her history of seizures, several undisclosed documents associate her seizure activity with an inability to recollect what had happened to her. Additionally, one undisclosed document discusses the complainant’s desire to obtain her mother’s trust, implying complainant was not forthcoming with her mother and may have a need to lie so as to avoid disappointing her mother. Another indicates complainant fantasizes about her interpersonal relationships and has a poor perception of reality. The records that indicate an inability to remember and potential history of fabrication would have been critical to the defendant’s preparation and cross-examination of the complainant.

It certainly was reasonably possible for the jury to conclude, based on the complainant’s prior history of distorted reality, that while she could accurately remember everything leading up to the moment of having sex with the defendant, she fabricated events surrounding the sex act. Indeed, we have long recognized that juries are tasked with making decisions about the credibility or incredibility of testimony, and may accept or discount testimony based on difficult credibility determinations (see generally People v Sage, 23 NY3d 16 [2014] [jury is left free to accept or reject testimony]).

The records of possible fabrication of sexual assault and attempted rape by her father and the other undisclosed records could have provided a basis to show falsity of the allegations, or a pattern of false complaints that may very well have been admissible (see People v Mandel, 48 NY2d 952, 953 [1979]). Certainly, the records were not inadmissible as a matter of law (see People v Hunter, 11 NY3d 1, 6 [2008]), and were within the court’s discretion as to whether to admit in the interests of justice (see CPL 60.42 [5]). Regardless of the admissibility of these documents, the defendant had a right to review them and determine whether the allegations were unsubstantiated, and showed conduct sufficiently similar to the complainant’s alleged claims about the defendant such that defendant could argue they constituted the type of “pattern of false complaints” that would be admissible at trial. Moreover, the documents that were disclosed may have misled the defendant as to the complainant’s history of sexual abuse because they referred to physical and not sexual abuse by the father and brother.

The majority concludes that the allegations of attempted rape by the father may not be sufficiently similar to the facts in this alleged “date rape” case, or occurred too distant in time, to support its admission. In fact, undisclosed records indicate the alleged attempted rape by complainant’s father is similar to the allegations made here against defendant in that complainant claims she was forced up against a wall by her father, a much older man, but could not recall how she got away. Here, complainant testified similarly that defendant was “backing [her] up against a wall” and she aggressively tried to fight his advances.

Moreover, the mental health records contain references to the mother’s denial of the attempted rape, and thus place its truth in question. Therefore, the defendant should have had the opportunity to review the records and determine whether there was a basis to seek its admission at trial, to show a pattern of false claims of rape.

The records relating to flashbacks from previous alleged sexual abuse also should have been made available to the defendant because they would have allowed the defendant to determine whether complainant’s capacity and motive in this case were affected by a prior experience. Therefore, I cannot conclude, as does the majority, that “the trial court could reasonably think there was no more than a [mere] remote possibility that disclosure of the records . . . would lead to defendant’s acquittal” (majority op at 200-201).

IV.

The case as presented to the jury depended on whether the complainant and the defendant engaged in consensual sex. Mental health records indicating that complainant has a history of lying or that her memory was unclear go to the truthfulness of her statements that she was raped by defendant. Far from a “hope that the unearthing of some unspecified information would enable him to impeach the witness” (Gissendanner, 48 NY2d at 549, citing People v Norman, 76 Misc 2d 644 [Sup Ct, NY County 1973]), this information went to whether there could be a basis to disbelieve the complainant’s version.

Moreover, the prosecutor argued that defendant knew the complainant had mental health problems simply by observing and speaking with her and that he sought to manipulate her based on what he perceived was her vulnerability due to her mental condition. As the record establishes, the prosecutor argued that the complainant’s mental health condition was obvious to the defendant and the jury, and that the defendant took advantage of the complainant. Defense counsel sought to persuade the jury that as a result of the complainant’s various mental health issues, she was either unable to remember that the sex was consensual or was lying about the rape. However, in response to the prosecution’s strategy of characterizing the defendant as a manipulative, older man seeking to take advantage of a younger woman who acted in a sexually provocative manner, and who he could see suffered from some type of mental impairment, the defendant had to persuade the jury that the complainant’s mental health conditions would have led her to fabricate a story of a rape, or to cause her to believe and recount for the jury an incorrect version of the sexual encounter with the defendant. In that sense, the more the defendant sought to establish the general severity of the complainant’s mental health conditions, the more the jury could find persuasive the People’s version. Thus, in order for the defendant to present the complainant’s mental health condition objectively from the defense point of view — that she is too mentally ill to recall that she consented, or that she made up the whole story because of her illness — disclosure of records about her ability to recall events accurately and her capacity to fabricate events was crucial.

V.

Medical records describing the complainant’s short term memory loss, selective memory, tendency to fabricate, poor perception and unrealistic assessments of intimate relationships, flashbacks of alleged sexual abuse, and possible false allegations of rape went directly to the reliability of the complainant, and would have allowed the defense to fully cross-examine her. The information contained in these documents does not merely give occasion for “some pause” (see majority op at 200), but rather establishes that there is a “reasonable possibility” that this information if disclosed would have affected the outcome.

The record reveals that the evidence was such that, as the Appellate Division concluded, “it would not have been unreasonable for the jury to believe defendant’s testimony that the sexual encounter was consensual” (McCray, 102 AD3d at 1003 [footnote omitted]). The denial of additional medical records providing evidence that could serve as a basis for the jury to disbelieve the complainant’s version was, therefore, an abuse of discretion.

I dissent.

Judges Graffeo, Read and Abdus-Salaam concur with Judge Smith; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman and Judge Pigott concur.

Order affirmed.

       In addition to these documents, shortly before trial the defendant learned through a Brady disclosure that the complainant had started to abuse drugs and alcohol heavily after the alleged incident and was hospitalized for a suicide attempt.


source: Caselaw Access Project

author: Abdus-Salaam, J. Chief Judge Lippman

license: Public Domain

text:
    [12 NE3d 1061, 989 NYS2d 631]
    The People of the State of New York, Respondent, v Floyd L. Smart, Appellant.
    Argued March 24, 2014;
    decided May 1, 2014

      POINTS OF COUNSEL

      Mark D. Funk, Rochester, for appellant.
    After witness Jane Doe invoked her Fifth Amendment privilege to remain silent, the trial court erred in finding that she was unavailable due to defendant’s misconduct and in allowing her grand jury testimony into evidence. (People v Gissendanner, 48 NY2d 543; Davis v Alaska, 415 US 308; People v Hults, 76 NY2d 190; People v Geraci, 85 NY2d 359; People v Green, 78 NY2d 1029; People v Arroyo, 54 NY2d 567; Matter of Holtzman v Hellenbrand, 92 AD2d 405; People v Cotto, 92 NY2d 68; People v Maher, 89 NY2d 456; People v Johnson, 93 NY2d 254.)

      Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), for respondent.
    Jane Doe’s refusal to testify was the result of defendant’s tampering and intimidation. (People v Geraci, 85 NY2d 359; People v Maher, 89 NY2d 456; People v Cotto, 92 NY2d 68; People v Johnson, 93 NY2d 254; People v Arroyo, 46 NY2d 928; People v Thomas, 51 NY2d 466; Rogers v United States, 340 US 367; People v Cantave, 21 NY3d 374; People v Havrish, 8 NY3d 389; People v Berg, 92 NY2d 701.)
   OPINION OF THE COURT

Abdus-Salaam, J.

We hold that the record supports the findings of the courts below that defendant procured a witness’s unavailability by wrongdoing and thereby forfeited his constitutional entitlement to the exclusion of the witness’s grand jury testimony at trial.

On the evening of October 3, 2008, defendant Floyd L. Smart, his associate Robert Verstreate and his girlfriend, whom we shall call Jane Doe, planned to burglarize a house in the Town of Greece. The three would-be burglars got into defendant’s car to drive in search of a target, and Doe fell asleep in the back seat. As Doe would later tell a grand jury, she awoke to discover that the car was idling, sans defendant and Verstreate, in the driveway of an unoccupied house. Suddenly, the owner of the house arrived, and Doe sounded the horn of defendant’s car to alert defendant and Verstreate, whom she assumed to be inside, to the owner’s return. Defendant and Verstreate emerged from the back of the house and came to the driveway, where they were confronted by the homeowner. When the homeowner questioned the two men about their presence on her property, they claimed that they were visiting a friend in the mistaken belief that he lived there. Defendant and Verstreate rejoined Doe in their car and drove away. The homeowner then entered the house, where she discovered that her belongings had been displaced and that some of her jewelry was missing. The homeowner called the police, who eventually arrested defendant, Verstreate and Doe.

Doe cooperated with the authorities and testified before the grand jury, conveying the account of the burglary set forth above. Doe received full transactional immunity from prosecution concerning all criminal acts described in her testimony. Following Doe’s testimony, the grand jurors indicted defendant and Verstreate on a charge of burglary in the second degree (see Penal Law § 140.25 [2]). Subsequently, Doe was released from police custody on bail, and she absconded.

On February 23, 2009, the People appeared in County Court and sought permission to admit Doe’s grand jury testimony into evidence, alleging that defendant had forfeited his right to preclude the admission of that testimony by tampering with Doe. County Court held a hearing to determine the admissibility of Doe’s grand jury testimony pursuant to People v Geraci (85 NY2d 359 [1995]) and Matter of Holtzman v Hellenbrand and Sirois (Sirois) (92 AD2d 405 [2d Dept 1983]).

At the hearing, investigators from the local sheriffs department and the district attorney’s office testified that Doe was a drug addict with a history of prostitution, and as a result of criminal activities that were apparently unrelated to the instant case, four warrants had been issued for Doe’s arrest. During the roughly two weeks between Doe’s absconding and the start of the Sirois hearing, the investigators made extensive efforts to obtain Doe’s appearance at trial. In particular, the investigators attempted to subpoena Doe at numerous addresses where she, her parents or her friends were known to have lived, and they called various telephone numbers associated with Doe and tried to learn her whereabouts from other police sources. However, the investigators’ efforts proved unsuccessful, and Doe remained at large.

The People also put into evidence recordings of defendant’s jailhouse telephone conversations which had occurred between Doe’s disappearance and the hearing. The recordings showed that, on the day on which the investigators started searching for Doe, defendant called her and inquired as to whether she would testify against him at trial. When she suggested that she would do so, defendant stated, “I’m going to [w]ring you[r] fucking neck,” and Doe replied, “I got to get the fuck outta here.” Defendant responded, “[T]hat’s a good idea.” Doe told defendant that she loved him, and he said, “[W]e will find that out at the last week of this month.” Later that day, defendant asked Doe, via telephone, why she was going to “give them [his] life” and “throw [his] life away.” Doe answered, “[N]othing much I can do except not show up.”

In the recorded telephone calls, defendant also had conversations with his mother which revealed that his mother was watching over Doe at his behest. In some of those conversations, defendant expressed his belief that he would avoid conviction if Doe did not appear at trial, and he urged his mother to either send Doe to visit her own mother in another state or to drive Doe elsewhere. However, in a later call, defendant’s mother reported that Doe had deserted her, leaving her unaware of Doe’s whereabouts. At this, defendant berated his mother for failing to effectively chaperone Doe and remove her from the reach of the authorities, saying:

“[U]nless if she calls you and you put her in that car and drive[,] you hit that New York line[,] then she’s gonna[,] [i]f you don’t do that she’s gonna be at trial. . . now they wanted to do my trial in June. I didn’t want to hold off until June because I thought you had it under wraps. That’s why I called you this morning. . . .
“[I]f she gets a hold of you[,] you need to get her in the mother fucking car and go. . . .
“[S]he’s gotta go, use the fucking credit card, I don’t give a fuck, go to Florida, wherever you got to go. . . .
“[I]f you can’t do that they gonna bury me. If you can’t get her out somewhere it ain’t never gonna work.”

In a subsequent series of calls, defendant’s mother stated that she was trying to contact Doe to “keep her off the streets until her mother g[o]t[ ] here,” and when defendant asked whether Doe was going to appear at trial, defendant’s mother indicated that Doe might not appear. However, defendant’s mother “[didjn’t wanna say” more on that subject “over the phone.” In telephone conversations in the days leading up to the hearing, defendant expressed his belief that Doe would testify against him at trial and said that he no longer cared whether she showed up in court. Defendant’s mother told him that Doe was “laying low so they c[ould]n’t summons her,” but defendant insisted that Doe would appear because she was working with the authorities.

The People presented most of the recorded telephone conversations and other evidence on the first day of the hearing. On the morning of the second day of the hearing, defense counsel announced that Doe was once again in police custody. Defense counsel asserted that Doe was now available to testify at trial and that therefore her grand jury testimony could not be used against defendant. The prosecutor, apparently learning of this development for the first time, expressed skepticism about the timing of Doe’s return to police custody, noting that it was “very coincidental given the fact that [the parties] were in the middle of a hearing” about “the possibility of her Grand Jury testimony being used against the defendant.” At the prosecutor’s urging, the court continued the Sirois hearing, stating that Doe might still refuse to testify and that, “if the Court d[id] find by clear and convincing evidence that [defendant] [wa]s responsible for that, then [the court] w[ould] deal with it at that time.” The hearing resumed and the People presented the remainder of their evidence.

Later at the hearing, Doe’s attorney appeared in court. According to Doe’s counsel, she had told him that she would assert her Fifth Amendment privilege against self-incrimination and refuse to testify at defendant’s trial. Counsel initially suggested that Doe wanted to avoid testifying because she had not received immunity from any perjury prosecution that might arise as a result of her testimony at the hearing and at trial. Doe’s lawyer noted, however, that his client’s stance was puzzling in light of the immunity she had received with respect to the serious burglary charges in this case, and that Doe might not fully understand the implications of her choice. Doe’s counsel explained that she had “made adamantly clear to [counsel] she ha[d] no intention of testifying,” adding, “[I]mmunity, no immunity, whichever, she does[,] she does not intend to testify.” Doe’s attorney later reiterated that she had “repeatedly made clear her intention to not offer any testimony no matter what is it [sic] said to her by anybody.” Doe did not appear in court to explain her refusal to testify, and the parties agreed to allow Doe’s counsel to leave the courtroom without further inquiry.

After hearing extensive argument from the parties regarding whether the People had proved that defendant had wrongfully procured Doe’s unavailability by coercing her into invoking her Fifth Amendment privilege, the court granted the People’s motion to admit Doe’s grand jury testimony into evidence at trial. After summarizing the hearing testimony and the telephone calls, the court found that defendant, “acting in concert with his mother[,] pressured the witness’s unavailability up to today through threats and chicanery, among other things, encouraging his mother to keep [Doe] away from trial.” Commenting on one of the recorded telephone conversations between defendant and Doe, the court said, “Obviously, [this shows] the influence of the defendant on this woman.” The court noted: “The fact she is here is moot [sic]. [Doe’s lawyer] stated on the record she is not going to testify. She is so unavailable.” The court concluded that the People had more than carried their burden at the hearing, saying, “The Court finds this is beyond a reasonable doubt.” At the end of the Sirois hearing, the court granted codefendant Verstreate’s severance motion and severed his trial from defendant’s.

At trial, the People submitted Doe’s grand jury testimony for the jury’s consideration, and they called the owner of the burglarized home to the stand. Defendant attempted to call Doe to the stand, and she refused to testify on Fifth Amendment grounds, sobbing as she left the stand. Defendant then testified on his own behalf, claiming that Doe had burglarized the house. According to defendant, he and Verstreate had been returning the property stolen by Doe when the homeowner confronted them.

The jury returned a verdict convicting defendant as charged. Defendant filed a motion to set aside the verdict pursuant to CPL 330.30, renewing his argument that the court had erroneously admitted Doe’s grand jury testimony into evidence because Doe had evidently refused to testify to avoid incriminating herself and not in response to defendant’s misdeeds. The trial court denied the motion and sentenced defendant to an indeterminate prison term of from 20 years to life. The Appellate Division modified the judgment of conviction as a matter of discretion in the interest of justice, by reducing defendant’s sentence to an indeterminate prison term of from 15 years to life, and otherwise affirmed (see People v Smart, 100 AD3d 1473, 1473-1476 [4th Dept 2012]). Although two Justices dissented from the court’s decision to reduce defendant’s sentence (see id. at 1476-1480 [Scudder, P.J., dissenting in part]), the court unanimously rejected defendant’s contention that the trial court had erred in admitting Doe’s grand jury testimony into evidence, reasoning that “[t]he People [had] presented clear and convincing evidence establishing that misconduct by defendant and his mother, who acted at defendant’s behest, caused the witness to be unavailable to testify at trial” (id. at 1474). A Judge of this Court granted defendant leave to appeal (21 NY3d 914 [2013]), and we now affirm.

Under the Sixth Amendment of the Federal Constitution and article I, § 6 of the State Constitution, a criminal defendant has the right to be confronted with the witnesses against him or her (see US Const Amend VI; NY Const, art I, § 6; Delaware v Van Arsdall, 475 US 673, 678 [1986]; People v Rawlins, 10 NY3d 136, 146 [2008]). The confrontation right is critical to the fairness of a trial because it “ ‘ensur[es] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact’ ” (People v Wrotten, 14 NY3d 33, 39 [2009], quoting Maryland v Craig, 497 US 836, 845 [1990]). Given this important right, an unavailable witness’s grand jury testimony, which by definition has not been subjected to confrontation, generally may not be admitted at trial on the People’s direct case (see Geraci, 85 NY2d at 365; see also People v Green, 78 NY2d 1029, 1030 [1991]). However, “where it has been shown that the defendant procured the witness’s unavailability through violence, threats or chicanery,” the defendant “may not assert either the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness’s out-of-court declarations,” including the witness’s grand jury testimony (Geraci, 85 NY2d at 365-366; see People v Bosier, 6 NY3d 523, 527-528 [2006]; see also Giles v California, 554 US 353, 359-361 [2008]; Davis v Washington, 547 US 813, 833-834 [2006]; United States v Stewart, 485 F3d 666, 670 [2d Cir 2007]). This forfeiture rule, as articulated in Geraci, is based on sound public policy meant to prevent the defendant from taking advantage of his or her own wrongdoing and to protect the integrity of the proceedings by deterring the defendant from acting on the strong incentive to tamper with adverse witnesses (see Geraci, 85 NY2d at 366).

The People may not admit a witness’s grand jury testimony into evidence merely because the defendant expressed hope that the witness would not testify against him or her at trial. Rather, the People must demonstrate by clear and convincing evidence that the defendant engaged in misconduct aimed at least in part at preventing the witness from testifying and that those misdeeds were a significant cause of the witness’s decision not to testify (see id. at 366-368; People v Maher, 89 NY2d 456, 462 [1997]). Because witness tampering is a surreptitious activity rarely admitted by the defendant or the witness, few cases will involve direct evidence of this causal link between the defendant’s misconduct and the witness’s refusal to testify or failure to appear in court (see id. at 369; People v Cotto, 92 NY2d 68, 76-77 [1998]). Therefore, at a hearing held pursuant to Sirois and Geraci, the court may infer the requisite causation from the evidence of the defendant’s coercive behavior and the actions taken by the witness in direct response to or within a close temporal proximity to that misconduct (see Sirois, 92 AD2d at 415 [requiring the People to allege facts demonstrating only a “distinct possibility” that defendant’s misconduct caused a witness not to testify to obtain a hearing and permitting admission of grand jury testimony upon proof of misconduct and the absence of the witness in a manner suggestive of causation]; see also People v Encarnacion, 87 AD3d 81, 85-89 [1st Dept 2011], lv denied 17 NY3d 952 [2011]; see generally Commonwealth v Edwards, 444 Mass 526, 540-542, 830 NE2d 158, 170-172 [2005]).

Here, the People proved by clear and convincing evidence that defendant committed misconduct, and the court drew a permissible record-based inference that defendant’s wrongful actions were designed to prevent Doe from testifying at trial. For example, in recorded telephone conversations, Doe initially indicated to defendant that she might testify, and in response, defendant threatened to “[w]ring [her] fucking neck.” Defendant then said that it would be a “good idea” for Doe to leave town. By threatening Doe with violence in response to her avowed willingness to testify and encouraging her to disappear, defendant obviously sought to prevent Doe from testifying at trial and from continuing her cooperation with the police. To achieve that same goal, defendant repeatedly urged his mother to remove Doe from the state so that Doe could not testify against him. Indeed, defendant’s telephone conversations with his mother generally indicated that his mother was watching over Doe and giving her drugs at defendant’s request to keep Doe away from court.

To be sure, defendant told Doe at one point to turn herself in and eventually expressed resignation to the fact that Doe would appear in court after his mother lost track of her. But those statements merely reflected defendant’s recognition that Doe was cooperating with the police and that therefore his efforts to convince her not to testify might prove futile. Even assuming defendant wavered at times in his desire to stop Doe from testifying, the totality of the calls still revealed his desire, at least “in part,” to forestall Doe’s potential trial testimony (Maher, 89 NY2d at 462). Ultimately, the trial court, which was in the best position to choose among competing inferences of intent raised by the evidence, properly concluded that defendant meant to pressure Doe not to testify (see Cotto, 92 NY2d at 76-77).

In addition, the record evidence of defendant’s misconduct and Doe’s responsive actions supports the court’s conclusion that defendant procured Doe’s unavailability in the period leading up to the Sirois hearing. When Doe told defendant that she planned to testify, defendant threatened to wring her neck, and she immediately responded to his threat regarding her testimony by saying that she would “get the fuck outta here,” thus suggesting that defendant’s threat had caused her to change her mind about testifying and to consider becoming a fugitive. In a follow-up call, defendant’s complaints about Doe’s potential testimony again persuaded her not to testify; when defendant accused Doe of trying to “throw [his] life away” by testifying, Doe answered, “[N]othing much I can do except not show up.” Thus, the People demonstrated not only that defendant committed misconduct aimed at keeping Doe from testifying, but also that the misconduct had its intended effect insofar as it convinced her not to appear in court.

When viewed in the context of defendant’s successful efforts to keep Doe out of court up until the middle of the hearing, Doe’s decision not to testify on Fifth Amendment grounds was plainly caused in part by defendant’s malfeasance. Initially, as the prosecutor below observed, the timing of Doe’s appearance halfway through a Sirois hearing tended to suggest that defendant had influenced her to come to court and take the Fifth. On the first day of the hearing, the People presented compelling evidence of defendant’s and his mother’s attempts to keep Doe out of court, creating the strong possibility that Doe’s grand jury testimony would be admitted against defendant on forfeiture-by-wrongdoing grounds. The next day, Doe, who had evaded veteran investigators for weeks and reacted to defendant’s threats by promising not to testify, suddenly returned to custody and then asserted her right to remain silent. In doing so, Doe appeared at the perfect moment to save defendant from the impending admission of her damning grand jury testimony, thus lending some credence to the notion that she was continuing to respond to defendant’s entreaties by withholding her testimony.

Doe’s attorney’s statements provided further record support for the inference that defendant’s threats and cajoling motivated Doe to refuse to testify. As was evident from her attorney’s representations on her behalf, Doe did not refuse to testify solely because she lacked immunity from prosecution for perjury or other charges and thus feared incriminating herself. Regardless of any self-incrimination concern, Doe “made clear her intention to not offer any testimony no matter what” was “said to her by anybody.” Taken together with the proof of defendant’s misconduct, Doe’s reported admission that fear of self-incrimination was not prompting her refusal to testify logically suggested that she had another motivation: her love or fear of defendant, or both, which he had aroused by his threats and pleas in a deliberate attempt to keep her off the witness stand.

Furthermore, while Doe herself did not tell the court her reasons for refusing to testify, that circumstance did not undermine the evidence that Doe refrained from testifying in response to defendant’s misconduct and not just to serve her own interest in avoiding self-incrimination. Doe presumably had authorized her attorney, as her agent (see People v Brown, 98 NY2d 226, 231-233 [2002]), to assert the privilege against self-incrimination on her behalf and to state the purported basis on which she had decided to take that action, and thus the court properly relied on the attorney’s representations regarding Doe’s decision to remain off the witness stand. Indeed, at the Sirois hearing, defendant never disputed that Doe’s attorney’s statements were made at her direction and genuinely reflected her asserted reasons for remaining silent. Thus, it may be assumed that, had Doe appeared in person to answer questions about her invocation of her privilege against self-incrimination, she would have echoed the substance of her attorney’s account of her decision, and the court had no reason to demand a ritualistic repetition of those statements from Doe. Given that the existing evidence sufficed to demonstrate that defendant’s chicanery caused Doe’s unavailability at trial, the People were not obligated to call Doe to the stand to establish the admissibility of her grand jury testimony.

We reject defendant’s contention that Doe’s grand jury testimony should have been excluded because she had a lawful basis for asserting her Fifth Amendment privilege. The Geraci rule is designed to deter improper attempts to induce a witness not to testify, and therefore the rule’s application depends on whether the defendant has procured the witness’s unavailability and not on whether the witness’s refusal to testify would be lawful in the absence of the defendant’s illicit influence. Were the rule otherwise, a defendant could effectively suppress a witness’s testimony without fear of the evidentiary consequences by holding a gun, proverbial or literal, to the witness’s head and demanding that the witness invoke a testimonial privilege which the witness might lawfully assert under different circumstances. We refuse to allow defendants to abuse witnesses’ rights for the purpose of unjustly evading Geraci’s sanction in such a manner (see Edwards, 444 Mass at 541-542, 830 NE2d at 171-172 [finding that “a defendant’s intentional procurement of a witness’s unavailability through collusion will constitute a per se wrongdoing sufficient to trigger the doctrine (of forfeiture of the bar against admission of grand jury testimony), even if the collusion is carried out through lawful means”]).

Defendant’s remaining arguments are premised on the notion that unless Doe admitted that she was invoking her right to remain silent under pressure from defendant or there was some direct proof that defendant actually instructed Doe to take the Fifth, the trial court could neither blame him for her refusal to testify nor put her grand jury testimony into evidence. However, because the People “often have nothing more to rely upon than circumstantial proof” of the basis for the witness’s refusal to testify, “it would be unrealistic and unnecessarily rigid to adopt” the “formulate]” requirement of direct evidence or a witness’s admission, which “would make it impossible to establish the necessary foundation” for the admission of a witness’s prior statements “in so many cases” (Geraci, 85 NY2d at 369). Instead, we think it better to follow the flexible approach reflected in certain decisions of the Appellate Division which rely heavily on circumstantial evidence and the sequence of events to determine a defendant’s role in compelling a witness not to testify (see e.g. Encarnacion, 87 AD3d at 85-89; People v Clarke, 55 AD3d 1447, 1448 [4th Dept 2008], lv denied 11 NY3d 923 [2009]). The opinions in those cases comport with the Appellate Division’s leading decision in this area, Sirois, which establishes a pragmatic framework for the admission of a witness’s grand jury testimony based on inferences to be drawn from clear and convincing proof of the defendant’s misconduct, the witness’s unavailability and the surrounding circumstances, rather than making the defendant’s or the witness’s admissions an absolute foundational requirement (Sirois, 92 AD2d at 415).

Finally, People v Hamilton (70 NY2d 987 [1988]), upon which defendant relies, is distinguishable from this case. In Hamilton, a witness testified in the grand jury that the defendant had made incriminating statements to her (see id. at 988). However, before trial, she told the court that she would not testify on Fifth Amendment grounds (see id.). At a Sirois hearing, the witness maintained that the defendant had no involvement in her refusal to testify at trial and that the police had pressured her into lying to the grand jury, and the witness’s sister corroborated those assertions (see id.). A police officer testified that the police never coerced the witness into testifying in the grand jury (see id.). At the hearing, the prosecutor admitted that the witness had told the prosecutor that she had not been threatened by anyone (see id.). On that record, we concluded that the witness’s grand jury testimony was inadmissible because the People had failed to “produce any evidence that defendant had threatened [the witness]” (id.). Here, unlike in Hamilton, the People adduced ample evidence at the hearing that defendant had attempted to convince Doe not to testify, including telephone conversations in which he pleaded with her to flee from the authorities who were seeking her presence at trial and threatened to harm her if she testified. Additionally, in contrast to the absence of evidence of causation in Hamilton, there was clear and convincing circumstantial evidence here that defendant’s entreaties were a cause of Doe’s refusal to testify, and thus the trial court properly ruled that defendant had forfeited his right to preclude the admission of Doe’s grand jury testimony by his wrongdoing.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman

(concurring). I agree with the majority’s conclusion that the record supports the affirmed finding that defendant procured the witness’s unavailability through the first day of the Sirois hearing. However, the situation changed overnight when the witness appeared in court and asserted her Fifth Amendment privilege against self-incrimination. I write separately because I believe that the trial court failed to focus fully on the relevant issue once she was physically present— whether the witness’s refusal to testify was due to defendant’s misconduct.

As the majority relates, defendant and his mother plainly set about to prevent the witness from coming to court. Rarely will we have tape-recorded conversations laying out such a roadmap of a campaign of threats and pleas designed to induce a witness to absent herself from trial. However, I am concerned about other aspects of this case. A prosecutor may very well be content with relying on the known, favorable, prior-recorded testimony of an unsavory witness. A defendant’s vaunted constitutional right of confrontation can and should be protected in such instances by the vigilance of the trial court.

The purpose of the Sirois hearing is to ensure that statements untested by cross-examination will be admitted “only where the requisite link between the defendant’s misconduct and the witness’s silence has been established” (People v Johnson, 93 NY2d 254, 258 [1999]). Here, by contrast, virtually the entire hearing was devoted to the issue of defendant’s responsibility for the witness’s physical unavailability. Once she actually appeared, rendering the attempt to keep her away from trial unsuccessful, the focus of the court’s inquiry should have shifted. At that point, the prosecutor represented that the witness — a subject of open warrants — had been arrested the night before in a highly intoxicated condition. A court presented with this dramatic turn of events might well be behooved to inquire more deeply into the reason behind the witness’s refusal to testify, including any basis for her invocation of the Fifth Amendment.

Instead, here, the court made only a brief inquiry of the witness’s counsel, who represented that the witness intended to assert her Fifth Amendment privilege. Somewhat to the contrary, he also related that the witness had made clear that she would not testify regardless of whether the People offered her immunity with respect to her testimony at the hearing. He further expressed that he was having some difficulty explaining the situation to her, in light of the fact that she already had transactional immunity for the underlying charges, and noted that it was a “very chaotic” and “stressful” atmosphere.

Without making any direct inquiry of the witness, the court determined that her physical presence was “moot” and found her unavailable based on her refusal to testify. The court held that defendant had “pressured the witness’s unavailability up to today through threats and chicanery.” Upon this record, the Appellate Division found that the People had presented clear and convincing evidence that defendant and his mother had “caused the witness to be unavailable to testify at trial” (100 AD3d 1473, 1474 [4th Dept 2012]).

Before imposing a forfeiture of a defendant’s fundamental right to confrontation, the trial court should make certain that the penalty is warranted (see People v Maher, 89 NY2d 456, 461-462 [1997]). However, under the circumstances of this case, where the evidence of witness tampering was overwhelming and there was apparently no valid basis for invoking the privilege against self-incrimination, the satisfaction of Johnson’s requirement of a nexus between the defendant’s misconduct and the witness’s silence is implicit.

Judges Graffeo, Read, Smith, Pigott and Rivera concur with Judge Abdus-Salaam; Chief Judge Lippman concurs in result in an opinion.

Order affirmed.

      . At some point during this conversation, defendant also suggested that Doe turn herself in to the police, and Doe declined, indicating that she feared suffering from withdrawal symptoms in police custody as a result of her recent drug use.

      . The record does not indicate whether the police located and arrested Doe in the course of their investigation or she turned herself in.

      . Of course, the Geraci rule also permits the inclusion of a witness’s prior statements in the trial evidence when other individuals acting on the defendant’s behalf and with his knowing acquiescence commit misconduct rendering the witness unavailable (see Maher, 89 NY2d at 461).


author: Graffeo, J. Read, J.

text:
    [12 NE3d 1099, 989 NYS2d 670]
    The People of the State of New York, Appellant, v Jonai Washington, Respondent.
    Argued March 26, 2014;
    decided May 6, 2014

      POINTS OF COUNSEL

      Kathleen M. Rice, District Attorney, Mineola (Yael V. Levy and Tammy J. Smiley of counsel), for appellant.
    The hearing court improperly suppressed the result of the chemical breathalyzer test, which defendant had already consented to take without seeking legal advice before counsel entered the matter under investigation. (People v Shaw, 72 NY2d 1032; Schmerber v California, 384 US 757; People v Thomas, 46 NY2d 100; People v Berg, 92 NY2d 701; People v Hager, 69 NY2d 141; People v Paddock, 29 NY2d 504; People v Kates, 53 NY2d 591; Kirby v Illinois, 406 US 682; People v Claudio, 59 NY2d 556; People v Gursey, 22 NY2d 224.)

      Law Offices of Frederick K. Brewington, Hempstead (Frederick K. Brewington and Jonathan I. Edelstein of counsel), for respondent.
    The hearing court properly suppressed the result of the chemical breath test after the police unlawfully refused to allow counsel retained by the defendant’s family to speak to her. (People v Gursey, 22 NY2d 224; People v Garofolo, 46 NY2d 592; People v Donovan, 13 NY2d 148; People v Pinzon, 44 NY2d 458; People v Settles, 46 NY2d 154; People v Lopez, 16 NY3d 375; People v Harris, 77 NY2d 434; People v Grice, 100 NY2d 318; People v Gunner, 15 NY2d 226; People v Borukhova, 89 AD3d 194.)
   OPINION OF THE COURT

Graffeo, J.

People v Gursey (22 NY2d 224 [1968]) recognized that a defendant facing an alcohol-related motor vehicle charge has a limited, statutory right to request legal consultation before consenting to a chemical test. In this appeal, we consider the extent to which the police are obligated to advise a drunk driving suspect about an attorney’s telephonic intervention before the administration of such a test.

Defendant Jonai Washington was driving an automobile in Nassau County at approximately 2:00 a.m. when she struck and killed a pedestrian. She told the responding police officers that she had consumed four beers “a while ago.” She failed field sobriety tests and was arrested for driving while intoxicated at 2:40 a.m. Defendant was then transported to Nassau County police headquarters.

In the meantime, defendant’s family contacted an attorney to arrange for him to represent her. The lawyer telephoned the Sheriff’s Department at 3:29 a.m. and, shortly thereafter, an operator at police headquarters transferred his call at 3:32 a.m. to a sergeant. Counsel explained that he represented defendant, requested information about her status and asked the sergeant to instruct police officers not to question or test his client. The attorney was informed that he would be contacted by the arresting officer and the conversation ended at 3:39 a.m.

At the same time that the attorney was pursuing telephone contact with law enforcement personnel, the police were processing defendant and advising her about the need for a chemical test to determine her blood alcohol content. The police read a standard chemical test authorization to defendant at 3:30 a.m. and she then signed the form, indicating her consent to take the breathalyzer test. Defendant was not informed about the attorney’s communication before initiation of the breathalyzer test at 3:39 a.m.

Consequently, defendant was indicted for second-degree manslaughter, second-degree vehicular manslaughter and two counts of driving while intoxicated. She moved to suppress the results of the breathalyzer, claiming that it had been administered in violation of her right to counsel. Following an evidentiary hearing, Supreme Court agreed with defendant and suppressed the chemical test results.

Upon the People’s appeal, the Appellate Division affirmed, concluding that the police violated defendant’s constitutional right to counsel because she was not alerted to the lawyer’s intervention before the breath test occurred and the People failed to establish that such notification would have unduly interfered with the ad ministration of the breathalyzer (see 107 AD3d 4, 15 [2d Dept 2013]). A dissenting Justice believed that defendant’s right to counsel was not transgressed since she had consented to the test prior to the attorney’s conversation with the police (see id. at 25). The dissenter granted the People leave to appeal (21 NY3d 1012 [2013]).

Driving while intoxicated is “a very serious crime” (County of Nassau v Canavan, 1 NY3d 134, 140 [2003]) that has long posed a “menace” to highway safety (People v Ward, 307 NY 73, 77 [1954]) and has caused many tragic consequences (see e.g. People v Heidgen, 22 NY3d 259, 267-268 [2013]). In the effort to combat alcohol-related driving offenses, law enforcement agencies have been granted statutory authority (see Vehicle and Traffic Law § 1194) to use an important investigative tool — chemical tests to determine blood alcohol content (see People v Smith, 18 NY3d 544, 548 [2012]). Since alcohol metabolically dissipates from the bloodstream (see Missouri v McNeely, 569 US —, —, —, 133 S Ct 1552, 1560, 1570-1571 [2013]), the use of these tests “is a time-sensitive proposition; to maximize the probative value of BAC evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest” (People v Smith, 18 NY3d at 548).

To promote this objective, operators of motor vehicles in New York are deemed to have issued consent to chemical testing under Vehicle and Traffic Law § 1194 (2) (a). The statute is designed to encourage those suspected of alcohol-related driving offenses to comply with requests to submit to chemical tests in order to obviate the need for securing court orders authorizing blood tests (see L 1953, ch 854; People v Ward, 307 NY at 77). Section 1194 “grants a motorist a qualified right to decline to voluntarily take a chemical test” after being warned that a refusal “will result in the immediate suspension and ultimate revocation of the motorist’s driver’s license for one year,” along with evidence of the refusal being admissible at any subsequent criminal trial (People v Smith, 18 NY3d at 548). In general, “an uncounseled waiver of the statutory right to refuse the test . . . provides no basis for suppressing the results” (People v Shaw, 72 NY2d 1032, 1034 [1988]).

In People v Gursey (22 NY2d 224 [1968]), however, we recognized a limited right of the accused to seek legal assistance in alcohol-related driving cases. We held that, based on the warning procedure set forth in section 1194 (2) (b),

“if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police ‘may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication’ ” (People v Smith, 18 NY3d at 549, quoting People v Gursey, 22 NY2d at 227).

Violation of this right to legal consultation generally requires suppression of the scientific evidence (see People v Smith, 18 NY3d at 550). Because time is of the essence in obtaining accurate chemical test evidence (see id. at 548 n 1), we further observed in Gursey that a suspect’s communication with a lawyer regarding “the exercise of legal rights should not . . . extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses” (22 NY2d at 229).

It is therefore well established that “there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing” (People v Smith, 18 NY3d at 549). In other words, conferring with counsel is permissible only if “ ‘such access does not interfere unduly’ ” with timely administration of the test (id. at 549, quoting People v Gursey, 22 NY2d at 227).

We have at least twice emphasized that Gursey was directed at the accused’s personal request to seek legal consultation before providing consent to a chemical test (see People v Smith, 18 NY3d at 549; People v Shaw, 72 NY2d at 1033-1034). Gursey is therefore distinguishable from the facts of this case in one significant respect — defendant never asked to speak to a lawyer before executing the consent form to take the breathalyzer test. Here, an attorney contacted the police at her family’s behest at the same time that defendant agreed to undergo chemical testing. The issue then is whether counsel’s intervention just prior to commencement of testing requires suppression of the results under these facts.

The People assert that suppression of the breathalyzer test is not warranted because defense counsel’s telephonic communication did not constitutionally preclude the police from continuing to proceed with testing defendant for alcohol consumption. They also maintain that the breathalyzer was properly performed under People v Gursey (22 NY2d 224 [1968]) because defendant did not personally inform the police that she wanted to consult with a lawyer before providing consent to the chemical test. Defendant acknowledges that her consent to be tested for alcohol was validly obtained, but asserts that her right to counsel was violated when the attorney contacted the police and she was not advised about the lawyer’s communication before the breathalyzer test was performed.

In our view, the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically. Gursey contemplated that a lawyer retained to represent a DWI arrestee can directly communicate with the police, reasoning that “law enforcement officials may not, without justification, prevent access between the criminal accused and [the] lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly” with the administration of the alcohol test (22 NY2d at 227). The fact that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police is not dispositive since defendant, after conferring with counsel, could have revoked her consent prior to administration of the test (see generally Vehicle and Traffic Law §§ 1194 [2] [b]; 1194-a [3] [c]). The police therefore must advise the accused that a lawyer has made contact on the accused’s behalf (see People v Pfahler, 179 AD2d 1062 [4th Dept 1992]; People v Meytin, 30 Misc 3d 128[A], 2010 NY Slip Op 52276[U] [App Term, 1st Dept 2010], lv denied 16 NY3d 861 [2011]). Once so informed, the accused may choose to consult with counsel or forgo that option and proceed with the chemical test.

In this case, when the attorney telephoned the police to intervene on defendant’s behalf, the police should have informed defendant of this development since breathalyzer testing had not yet begun. Defendant could then have decided if she wished to discuss her situation with counsel. Since the police officers here made no effort to advise defendant about the lawyer’s communication and the People did not demonstrate that a notification of this nature would have been unreasonable under the circumstances, we hold that the chemical test was administered in violation of the statutorily-based Gursey right to counsel. Consequently, the courts below correctly concluded that defendant is entitled to suppression of the test results.

Accordingly, the order of the Appellate Division should be affirmed.

Read, J.

(dissenting). The majority holds that “the statutory right to legal consultation applies when an attorney contacts the police before a chemical test for alcohol is performed and the police must alert the subject to the presence of counsel, whether the contact is made in person or telephonically” (majority op at 233). Further, the majority opines, it makes no difference “that defendant consented to the breathalyzer about the same time that the attorney was communicating with the police . . . since [she] . . . could have revoked her consent prior to administration of the test” (id.).

Contrary to the majority’s view, no statute confers upon a suspected drunk driver the legal right to consult with counsel before consenting to take a chemical breath test. And the majority offers no reason why we should alter the easy-to-apply common-law rule deriving from People v Gursey (22 NY2d 224 [1968]); i.e.; that “a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel” (People v Shaw, 72 NY2d 1032, 1033-1034 [1988] [emphases added], citing Gursey, 22 NY2d 224). Accordingly, I respectfully dissent.

I.

In Gursey, a motorist suspected of drunk driving was taken back to the station house where he was asked to submit to a chemical breath test; he refused and several times requested permission to call his attorney. The police officer in charge advised the uncooperative motorist that he had to take the test. When the motorist questioned what would happen if he continued to refuse consent, the officer replied “ ‘[T]he State will take away your license,’ ” whereupon the motorist submitted to the test (id. at 227).

The motorist unsuccessfully moved to suppress the test results on the ground that administration of the test after denial of his requests for counsel violated his Fifth and Sixth Amendment rights. He was subsequently convicted of driving while intoxicated. On appeal, the Appellate Term ruled that “the denial of [the motorist’s] request to telephone his attorney before he took the test violated his constitutional rights” (id. at 227 [internal quotation marks omitted]). The court therefore reversed the judgment of conviction and ordered a new trial in light of the “sufficient other evidence” of guilt (id. at 226).

We affirmed, but not on the basis of any constitutional or statutory right to advice of counsel enjoyed by a suspected drunk driver asked to undergo chemical breath testing. We noted that the motorist “possessed a number of statutory options which could be asserted only during the transaction at the station house, and concerning which the advice of counsel, if available, was relevant” (id. at 228 [emphases added]); specifically, he might have chosen to lose his license in lieu of taking the test (see former Vehicle and Traffic Law § 1194 [1]). Further, the motorist, if he elected to take the test, was entitled to have a physician of his choosing conduct a chemical test in addition to the police-administered one (see former Vehicle and Traffic Law § 1194 [4]).

Observing additionally that honoring the motorist’s wishes “would not have substantially interfered with the investigative procedure,” we held that denial of his requests to talk to his lawyer “must be deemed to have violated” what we called “his privilege of access to counsel” (id. at 228) or “[t]he privilege of consulting with counsel concerning the exercise of legal rights” under Vehicle and Traffic Law § 1194 (id. at 229). We subsequently confirmed that this privilege is triggered only “if [a motorist] requests assistance of counsel” and does so “before deciding whether to consent to a sobriety test” (Shaw, 72 NY2d at 1034 [emphases added]). We have recently reiterated that the privilege is invoked “before responding to a request to take a chemical test” (People v Smith, 18 NY3d 544, 549 [2012] [emphasis added]).

II.

While section 1194 contemplates that a motorist may refuse to take a chemical breath test, there is no “statutory right to request legal consultation before consenting to a chemical test” administered pursuant to that provision (see majority op at 230; see also id. at 233). The limited privilege to consult derives solely from Gursey and so is entirely judge-made (see Gursey, 22 NY2d 224; see also Smith, 18 NY3d at 549 [“Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. However, if the motorist is arrested for driving while intoxicated or a related offense, this Court has recognized a limited right to counsel associated with the criminal proceeding”]).

As the majority acknowledges, “[d]riving while intoxicated is a very serious crime that has long posed a menace to highway safety and has caused many tragic consequences” (majority op at 231 [internal quotation marks and citations omitted]). Here, defendant struck and killed a pedestrian. Given the undeniable scourge of drunk driving, we should not extend the reach of Gursey’s judicially-created privilege absent strong competing reasons of public policy, and none are advanced or apparent.

Additionally, expansion of the Gursey privilege is particularly ill-advised since the legislature enacted the “ ‘right’ of refused . . . merely [as] an accommodation to avoid a distasteful struggle to forcibly” administer a chemical test to an unwilling subject, not to protect drunk driving suspects from the risk of supplying incriminating evidence (People v Paddock, 29 NY2d 504, 506 [1971, Jasen, J., concurring]; see also Jack B. Weinstein, Statute Compelling Submission to a Chemical Test for Intoxication, 45 J Crim L Criminology & Police Sci 541, 543 [1954-1955], available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4303&context=jclc [noting the “sound practical reasons” for the legislature’s decision to provide that “although the driver has constructively consented to take the test, when the chips are down and he is actually apprehended he may renege on his imputed promise and refuse . . . (although) (s)uch a refusal is costly for it will result in the loss of his driver’s license or nonresident operating privilege”]).

The majority seemingly reasons that it should make no difference whether the motorist asks to speak to the lawyer or vice versa before the test is performed. As a practical matter, though, the majority’s enlargement of the Gursey privilege invites debate and thus uncertainty, especially when the attorney telephones rather than physically appears at the police station. In short, we are trading a limited and clear rule for a broader one bound to complicate and delay time-sensitive testing and generate questions of fact anytime an attorney enters a case, even when the defendant has already agreed to take the chemical test. This is evident here where, by any measure, mere minutes separate the attorney’s first contact with the police from defendant’s consent to the chemical breath test and the actual testing.

And even assuming it made sense to extend Gursey, there is no reason why the privilege should attach so long as the attorney asks to speak to the motorist before the chemical test is administered, as the majority holds, rather than before the motorist consents. The rationale for the privilege in Gursey was that counsel’s advice was relevant to the motorist’s decision whether to consent to the test in the first place. The majority posits that defendant might have revoked consent after talking to her attorney, citing Vehicle and Traffic Law §§ 1194 (2) (b) and 1194-a (3) (c). But these provisions address consequences of refusal to undergo a chemical test, not revocation of consent once freely given, as it concededly was here. Moreover, the majority does not explain why defendant’s consent did not act as a waiver of any Gursey privilege. We have, after all, held that a motorist’s statutory option to refuse a chemical test “may be waived without an attorney’s assistance” (Shaw, 72 NY2d at 1033).

III.

In Gursey, we created a limited privilege for a motorist suspected of drunk driving to request to consult with counsel before consenting to chemical testing. Expanding this privilege to cover the situation where the motorist has not asked for counsel or resisted testing disserves the legislative purpose animating section 1194 (2) (b); namely, to encourage voluntary participation in chemical testing, a measure shown to have “cut drunken driving drastically” (see Letter from Jack B. Weinstein, Counsel to NY Senate, to George M. Shapiro, Counsel to Governor, Mar. 26, 1953, Bill Jacket, L 1953, ch 854 at 35-36).

Chief Judge Lippman and Judges Pigott and Rivera concur with Judge Graffeo; Judge Read dissents in an opinion in which Judges Smith and Abdus-Salaam concur.

Order affirmed.

      . Our dissenting colleagues would restrict the Gursey privilege to the time period before a drunk-driving suspect consents to a chemical test (see dissenting op at 237). The rationale of People v Gursey (22 NY2d 224 [1968]), however, was not so limited. A suspect who consents to a test may ultimately decline to perform it; only that final decision results in adverse legal consequences, such as revocation of driving privileges (see Vehicle and Traffic Law § 1194 [2] [b] [1]); and our Court has recognized that an arrestee may seek legal counsel to understand the ramifications of refusing to undergo chemical testing (see People v Gursey, 22 NY2d at 228-229). Contrary to the dissent’s belief, there is no relevant distinction between legal consultation before or after consent is given — the operative point in time is the actual performance of the procedure and, until it occurs, legal assistance may be sought “if such access does not interfere unduly” with the administration of the chemical test (id. at 227).

      . Although the People assert that the exclusionary rule should not apply in this case, it is unnecessary to address the merits of that claim because the courts below did not find that the police acted in good faith and it is undisputed that they did not obtain a court order authorizing a chemical test.

      *. Record evidence shows the following: defendant signed the testing authorization form at 3:30 a.m.; the attorney called directory assistance at 3:27 a.m. (the call lasted one minute and 12 seconds); he called the sheriffs department at 3:29 a.m. (the call lasted 15 seconds); he called directory assistance again at 3:30 a.m., and at 3:31 a.m., he spoke to the switchboard operator at police headquarters, and at 3:32 a.m., his call was transferred to a police sergeant; the call lasted nine minutes and two seconds (i.e., beginning with the call to directory assistance at 3:30 a.m. and ending at 3:39 a.m.); and defendant’s breath was “withdrawn” at 3:39 a.m.