Reversing the First Department, the Court of Appeals held in People v. Wrotten (Ct. App. 12/15/2009) (Ciparick, J.) (4-2) that Supreme Court has inherent authority to permit adults, as well as children, to testify via live video conference under appropriate circumstances. I previously blogged about Wrotten when the First Department reversed the defendant's conviction.
The facts were fairly simple. The complainant alleged the defendant, a home health aide, robbed him. By the time the defendant's trial approached, the complainant's health deteriorated and he had moved to California to be near his children. Doctors testified that it would be medically unwise for him to travel to New York to testify. Accordingly, Supreme Court allowed him to testify via two-way closed-circuit testimony.
Citing Ricardo B. and Judicial Law § 2-b(3), the Court of Appeals upheld this procedure:
By enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts' use of innovative procedures where "necessary to carry into effect the powers and jurisdiction possessed by [the court]." Thus, as we have acknowledged, courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law (see Ricardo B., 73 NY2d at 232-233 [a trial court has authority to empanel two juries, despite clear statutory references to a single jury and no statutory authorization for multiple juries]).
The court rejected the First Department's argument that other statutes---such as CPL Article 65 (governing live video testimony of child-witnesses), Article 680 (Examination on Commission), and Article 660 (Conditional Examinations)---implicitly forbade the procedure employed at trial. Since these statutes did not prohibit the taking of videotaped testimony in this case, the trial court was free to employ Judiciary Law § 2-b(3).
Finally, the court concluded that the procedure complied with the Confrontation Clause. Nevertheless, it offered a word of caution:
Live televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances. We do not decide here whether Supreme Court's finding of necessity rested on clear and convincing evidence, as the Appellate Division did not address that question. We only pass on whether Supreme Court had authority to utilize a procedure "necessary to carry into effect the powers and jurisdiction possessed by it" (Judiciary Law § 2-b [3]). As the dissent below correctly noted, "[i]n the absence of direction from the Legislature, Supreme Court retained discretion . . . to determine what steps, if any, could be taken to permit this prosecution to proceed notwithstanding the complaining witness's inability to be physically present in the courtroom" (Wrotten, 60 AD3d at 192).
In dissent, Judge Jones concluded that the comprehensive nature of CPL Article 65 led to "a strong inference that the Legislature intended to exclude grants of authority under other circumstances ... . In my view, the detail that attends CPL Article 65, coupled with the CPL's silence as to other circumstances authorizing the admission of live two-way televised testimony, sets the parameters of the trial court's discretion. Thus, by allowing the instant complainant's testimony, the trial court exceeded its discretionary authority."
Judge Smith also dissented. He joined Judge Jones' dissent on the statutory authority issue. He would have gone further, however, and held that there was a constitutional violation. Judge Smith wrote:
In Cintron and Craig, the harm to be avoided — emotional trauma to a child — would be caused by the confrontation itself; there was no way to avoid the harm except by dispensing with face to face confrontation. Here, the threatened harm is to the health of an elderly witness from the stress of travel, and there is a way to avoid that harm without depriving defendant of her confrontation right: bring the accused to the witness, instead of bringing the witness to the accused. In other words, the dilemma could be resolved by allowing the deposition or conditional examination of the complainant to be taken in California, with defendant present. It may well be that that solution is not available under New York's statutes, but this does not affect the constitutional analysis. New York cannot deprive defendant of her constitutional right by its Legislature's choice not to provide for a way of accommodating both that right and the witness's legitimate interest.
(LC).
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