The People v. Omar Montes
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Respondent,
v.
Omar Montes,
Appellant.
Allen Fallek, for appellant.
Matthew C. Williams, for respondent.
JONES, J.:
We are called upon to determine whether the inability
to recall an unavailable witness violated defendant's rights
under the Confrontation Clause.
We find it did not.
In June 2004, defendant and his friend, Carlos
Gonzalez, were implicated in the shooting of Robinson Lopez.
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The
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victim died from multiple gunshot wounds.
Defendant was charged
with murder in the second degree and criminal possession of a
weapon in the second and third degrees.
At trial the prosecution had relied upon the
testimonies of Loraine Ceballo and Tamika Taylor, two witnesses
to the shooting.
Ceballo, the prosecution's key witness, had
close relationships to the victim, Gonzalez and Taylor.
According to Ceballo's testimony, Gonzalez arrived at
her apartment building with defendant.
She testified that she
watched the men approach the victim, saw them both raise their
hands and then heard gunshots.
She indicated that both men
appeared to have objects in their hands, though she could not see
what the objects were.
After Ceballo heard the shots, she ran
towards her building, and Gonzalez and defendant ran past her
through the building's lobby.
After Ceballo's testimony, but before Taylor's, Ceballo
and Taylor were brought to the District Attorney's Office for an
interview.
At the interview, Taylor initially denied being
present during the shooting.
She subsequently admitted to being
present but only after being confronted with Ceballo's account.
She also informed the interviewers that Gonzalez had given
Ceballo a gun.
At first, Ceballo denied receiving any gun, but
she eventually admitted to the subsequent events which she had
omitted from her prior interviews and testimony.
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These facts
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were later stipulated to by the parties.*
The next day, Taylor testified that she only saw
Gonzalez with a gun, but she could not describe where defendant
was positioned.
She saw the two men run to the building door,
wait for Ceballo to open the door and run into the lobby.
Taylor
further stated that Gonzalez put "something" in Ceballo's purse.
The two women went into the building's elevator, and Ceballo
stated: "What am I going to do with the guns . . . I don't want
this in my house."
Taylor stated that she saw one gun, but was
unsure if there was more than one.
After Taylor's testimony, it was revealed that Ceballo
had a breakdown and twice attempted suicide.
It was concluded
that she would be unable to be recalled testify again.
Since Ceballo couldn't be recalled, defendant moved for
a mistrial or to strike her testimony.
Defendant argued that
Ceballo's material omissions and Taylor's subsequent testimony,
which brought to light Ceballo's omissions, resulted in the
denial of his right to confront his accuser.
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The court denied
"The parties . . . stipulate that Loraine Ceballo was not
honest when she testified in that she failed to state that Carlos
Gonzalez . . . gave her the gun or guns when he ran past her
after the shooting occurred. When first confronted at the
District Attorney's office that Carlos Gonzalez placed weapons in
her purse, Loraine Ceballo had denied that this had occurred.
When confronted by Tamika Taylor about this matter, Loraine
Ceballo immediately stated that Carlos Gonzalez shoved a weapon
or weapons into her purse and that she took the purse containing
the weapon or weapons up to her apartment. Loraine Ceballo is
unavailable to be recalled by either side."
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No. 23
Montes was convicted, after a jury trial, of
criminal possession of a weapon in the third degree, but
acquitted of murder in the second degree and criminal possession
of a weapon in the second degree.
The Appellate Division affirmed, with one Justice
dissenting.
We too affirm.
The trial court did not abuse its
discretion in denying defendant's motion for a mistrial or to
strike Ceballo's testimony because the inability to recall
Ceballo did not violate defendant's rights under the
Confrontation Clause.
Pursuant to both the Federal and State Constitutions,
an accused has the right "to be confronted with the witnesses
against him'" at trial (US Const., 6th Amend; NY Const., art. I,
ยง 6; see Pointer v Texas, 380 US 400 [1965]).
The Confrontation
Clause "has been held to include the right to cross-examine those
witnesses" (Pointer, 380 US at 401).
In Delaware v Fensterer
(474 US 15 [1985]), the United States Supreme Court explained the
two categories within which Confrontation Clause cases fall.
Specifically, those "cases involv[e] the admission of out-ofcourt statements and . . . restrictions imposed by law or by the
trial court on the scope of cross-examination" (Delaware v
Fensterer, 474 US 15, 18 [1985]).
We agree with the concurrence
that the Fensterer categories do not encompass all possible
Confrontation Clause violations.
But no authority holds, and we
see no reason to hold, that the right of confrontation includes a
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No. 23
right to recall a witness and confront her about things she did
or said after her cross-examination, conducted without any
restriction of which defendant complains, was already completed.
Here, Ceballo's unavailability was neither imposed by
law nor restricted by the trial court.
Defendant exercised his
right to cross examine Ceballo regarding her direct testimony.
Ceballo became unavailable -- due to mental illness -- only after
the conclusion of her testimony.
Thus, these facts do not result
in a violation of defendant's right to cross-examine the witness.
Additionally, Taylor's testimony and the parties' stipulation
revealed Ceballo's out-of-court statements concerning Gonzalez
giving her a "gun or guns."
Those statements, however, alerted
defendant to the new information that afforded defendant the
opportunity to attack Ceballo's credibility.
Because those out-
of-court statements tended to help defendant, he did not
challenge them.
For those reasons, there is no violation of
defendant's right to confront his accuser.
Accordingly, the Appellate Division order should be
affirmed.
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People v Omar Montes
No. 23
LIPPMAN, Chief Judge (concurring):
Although I agree that there should be an affirmance, I
do not agree with the majority that the affirmance should rest
upon rejection of defendant's claim that his right of
confrontation was infringed.
Within hours of her departure from the witness stand,
the People's witness, Loraine Ceballos, who had in her testimony
implicated defendant in the fatal shooting in connection with
which he had been charged with murder and gun possession,
disclosed to the prosecutor that her testimony had in a crucial
respect not been truthful.
She had testified that in the
immediate aftermath of the shooting defendant and his codefendant, Gonzalez, ran from the courtyard where they had
confronted the victim, through the lobby of the building where
Ceballos was, and that, as they passed by her, she did not
observe that they possessed guns.
Later on the day of her
testimony, however, she admitted to the prosecutor in an out-ofcourt interview that she not only saw a gun as defendants fled
the scene but received at least one weapon from Gonzalez.
Plainly, her statements to the prosecutor bearing directly on the
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subject matter of her direct testimony were required to be, and
were, disclosed to defendant.1
And, equally plainly, had
Ceballos been available, defendant would have been entitled to
recall her to explore the inconsistency between her in-court and
out-of-court statements and the significance of her newly
admitted involvement in the criminal sequence.
of confrontation was clearly implicated.
Defendant's right
Its range was properly
defined by Ms. Ceballos's direct testimony and, at a minimum, by
the information required to be disclosed to defendant during
trial, not by the circumstance that the witness, through no fault
of the trial court, became unavailable.
witness becomes unavailable.
It does not matter why a
If adverse testimony has been
placed before the jury that a defendant has not been afforded a
full and fair opportunity to test by means of cross-examination,
the interests protected by the right of confrontation are fully
entailed.
The dictum from the summary disposition per curiam in
Delaware v Fensterer (474 US 15 [1985]) -- a decision addressing
facts utterly dissimilar to those at bar2 -- cannot be properly
1
Indeed, the People, citing Brady v Maryland (373 US 83, 87
[1963]), Giglio v United States (405 US 150, 154 [1972]), and
People v Baxley (84 NY2d 208, 213 [1994]), concede that they were
required to disclose these statements and that their duty to make
such disclosure was coterminous with the trial (citing Imbler v
Pachtman, 424 US 409, 427 n 25 [1976] and Leka v Portuondo, 257
F3d 89, 100 [2d Cir 2001]).
2
The claim disallowed in Fensterer was that an expert
witness's inability to recall the basis for his testimony
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read to define and thus limit the universe of Confrontation
Clause claims to those "involving the admission of out-of-court
statements and . . . restrictions imposed by law or by the trial
court on the scope of cross-examination" (id. at 18).
The
Supreme Court has repeatedly counseled that this language was not
intended to be exclusive -- that "claims arising under the
Confrontation Clause may not always fall neatly into one of these
two categories" (Kentucky v Stincer, 482 US 730, 739 [1987]; see
also Coy v Iowa, 487 US 1012, 1016 [1988]).
The present claim is undoubtedly atypically eventuated;
witnesses do not ordinarily become unavailable so precipitously
and in the wake of a non-testimonial disclosure crucial to full
and fair cross-examination.
But it does not follow from the fact
that the claim does not "fall neatly into one of the[ ] two
[Fensterer] categories" that it is not cognizable.
We have in
fact recognized that denial-of-confrontation claims may arise
from a witness's mid-trial unavailability for cross-examination
upon a non-collateral matter (see People v Vargas, 88 NY2d 363,
380 [1996]; People v Chin, 67 NY2d 22 [1986]), and if there is
some reason why unavailability by reason of the assertion of
privilege should be treated differently from unavailability by
reason of a medical problem, it is not explained by the majority.
If testimony adverse to the defendant upon a non-collateral
amounted to a denial of confrontation even though he was
available to be cross-examined.
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No. 23
matter has been placed before the jury and the defendant has not
been afforded an opportunity fully and fairly to test that
testimony by cross-examination, the right of confrontation has
been infringed.
Until today, there has never been a rule that
the assertion of that right was somehow dependent upon the
precipitant of a witness's unavailability.
Inasmuch as Ceballo was the only witness who claimed to
have seen defendant engage in conduct likely incident to the
actual use of a gun against the victim, the circumstance that her
account of the relevant events was not in crucial respects fully
explored and tested before the jury constituted a denial of the
right of confrontation.
Nor does it seem questionable that this
denial raised a substantial danger of prejudice.
It appeared at
the time of defendant's motion to strike that Ceballo's testimony
would, if credited, in combination with the forensic evidence
strongly militate in favor of a verdict convicting defendant of
murder.
In this context, any evidence that Ceballo had not been
truthful about her role in the events directly at issue was, from
defendant's perspective, absolutely to be brought to the jury's
attention through cross-examination; a stipulation was not a
substitute for vigorous confrontation of the witness in open
court (see Mattox v United States, 156 US 237, 242-243 [1895];
Chin, 67 NY2d at 30 n 3), and, in any event, at the time of
defendant's motion to strike no stipulation had yet been entered
into.
The trial court's bare denial of the motion upon the
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ground that Ceballos's unavailability did not "in any way, shape
or form discomfit[] the defense" was, on this record, error, even
if the extreme relief sought by defendant would not, after
careful consideration of the available remedial options, have
been appropriate (see Vargas, 88 NY2d at 380).
I join in the affirmance only because it seems clear
that, in acquitting defendant of the two top counts, the jury
decisively rejected Ceballos's account and, accordingly, it does
not appear that defendant ultimately was prejudiced by the jury's
consideration of her incompletely vetted testimony.
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Order affirmed. Opinion by Judge Jones. Judges Ciparick,
Graffeo, Read, Smith and Pigott concur. Chief Judge Lippman
concurs in result in an opinion.
Decided February 17, 2011
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