People v. Wrotten

OPINION OF THE COURT

In People v Cintron (75 NY2d 249 [1990]), we upheld the use of two-way televised testimony of a vulnerable child witness and concluded that no violation of either the Federal or State Constitution existed. On this appeal, we are asked to determine whether Supreme Court erred in permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court. We conclude that Supreme Court did not err, as the court’s inherent powers and Judiciary Law § 2-b vest it with the authority to fashion a procedure such as the one employed here. Furthermore, we conclude that defendant’s confrontation rights have not been unconstitutionally impaired.

In June 2003, defendant, a home health aide, was with 83-year-old complainant at his home in the Bronx. They were making food to bring to complainant’s wife, who was in a nursing home. According to complainant, defendant suddenly hit him from behind with a hammer and demanded money, which he gave her. According to defendant, she hit complainant with “something” only after he grabbed her breast, and she neither asked for nor received money. Complainant suffered five head wounds and two broken fingers. Shortly after the incident, he moved to California to be near his children. Defendant was indicted for assault in the first degree and two counts of robbery in the first degree.

Prior to trial, the People sought and were granted a conditional examination of complainant pursuant to CPL 660.20.1 This examination proved unfeasible, however, because CPL article 660 requires that the examination be conducted in New York State and complainant was unable to travel. The People then requested that the conditional examination be allowed to proceed via two-way video conferencing, with the witness *37remaining in California and the commissioners conducting the examination in New York. Supreme Court granted the relief sought, but required that complainant’s video appearance be live at trial and that the People first demonstrate that the witness would otherwise be unavailable to testify in New York.

After a hearing at which both the People and the defendant presented expert medical testimony, the court, crediting the People’s experts, held that complainant—at that time 85 years old, frail, unsteady on his feet, and with a history of coronary disease—could not travel to New York without endangering his health, and was therefore unavailable. At trial, complainant testified live from a courtroom in California via two-way video, appearing “on screen.” He stated that he could see the judge, prosecutor, defense counsel, defendant, and jury. The judge stated that the witness could be seen “very clearly,” including “any expressions on his face.”

Defendant was convicted of second degree assault only. On appeal, a divided Appellate Division reversed and vacated the conviction, holding that, in the absence of any express legislative authorization, Supreme Court lacked authority to permit the admission of televised testimony (People v Wrotten, 60 AD3d 165, 167 [1st Dept 2008]). The dissent concluded that Supreme Court retained discretion under its inherent powers and Judiciary Law § 2-b (3) to utilize this new procedure without legislative authorization (Wrotten, 60 AD3d at 192). A Justice of that court granted leave to appeal and we now reverse.

Although the Legislature has primary authority to regulate court procedure, “the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute” (People v Ricardo B., 73 NY2d 228, 232 [1989]). 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]).

Unable to find any explicit statutory prohibition regarding two-way televised testimony at trial, defendant argues that extant statutes implicitly preclude its admission. However, there *38is no specific statutory authority evincing legislative policy proscribing televised testimony. Indeed, the CPL requires live video testimony of a child witness in a prosecution of a sex crime after a judicial finding of “vulnerability” (CPL 65.00-65.30).2 The CPL is silent as to other types of witnesses, like complainant here whom the trial court found to be elderly, infirm, and physically incapable of appearing in court. Because article 65 addresses only a single, discrete circumstance and otherwise leaves courts’ preexisting authority unaffected (CPL 65.10 [3] [“(n)othing herein shall be construed to preclude the court from exercising . . . any authority it otherwise may have to protect the well-being of a witness and the rights of the defendant”]), such witnesses’ testimony via two-way televised transmission is presumably left to the trial court’s discretion.

Neither do the statutes providing for preservation of pretrial testimony implicitly preclude the admission of live video testimony. CPL article 680 permits testimony taken by “examination on a commission” outside New York on defendant’s application to be received as evidence at trial (CPL 680.10, 680.20). CPL article 660 allows either party to secure testimony—including videotaped testimony—for subsequent use in a case where the witness will be unavailable for trial (CPL 660.10, 660.20). These statutes do not speak to the permissibility of real-time video testimony subject to cross-examination in front of a jury. Nowhere does the CPL purport to list all instances where live video testimony is permissible or all possible solutions to the problem of an unavailable witness. Supreme Court, acting pursuant to its inherent powers as defined in the New York Constitution and Judiciary Law, was therefore not precluded from exercising its authority to utilize necessary, extrastatutory procedures.

Moreover, the exercise of this authority following a finding of necessity is permissible under the Confrontation Clauses of both the Federal and State Constitutions. We held in Cintron that CPL article 65’s authorization of two-way closed-circuit testimony in a criminal trial passes constitutional muster (75 NY2d at 253). Soon after, the United States Supreme Court held that live testimony via one-way closed-circuit television is permissible under the Federal Constitution, provided there is an *39individualized determination that denial of “physical, face-to-face confrontation” is “necessary to further an important public policy” and “the reliability of the testimony is otherwise assured” (Maryland v Craig, 497 US 836, 850 [1990]). Thus, assuming without deciding that two-way video does not always satisfy the Confrontation Clause’s “face-to-face meeting” requirement (cf. United States v Gigante, 166 F3d 75, 81 [2d Cir 1999] [not applying the Craig standard because the trial court’s use of two-way video “preserved the face-to-face confrontation”]), complainant’s testimony would nonetheless be admissible under the federal standard if findings of necessity and reliability were made by the trial court.

Live two-way video may preserve the essential safeguards of testimonial reliability, and so satisfy the Confrontation Clause’s primary concern with “ensuring] 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” (Craig, 497 US at 845). Essential to the holding in Craig was that “all of the other elements of the confrontation right” were preserved, including testimony under oath, the opportunity for contemporaneous cross-examination, and the opportunity for the judge, jury, and defendant to view the witness’s demeanor as he or she testifies (id. at 851). These traditional indicia of reliability were all present in this case.

Additionally, if Supreme Court’s findings were supported by clear and convincing evidence, Craig’s public policy requirement is satisfied here. Nowhere does Craig suggest that it is limited to child witnesses or that a “public policy” basis for finding necessity must be codified. Indeed, federal courts have permitted live video testimony in a variety of circumstances, including instances where public policy is implicated by a key witness too ill to appear in court (see e.g. Horn v Quarterman, 508 F3d 306, 317-318 [5th Cir 2007] [denying habeas relief where state court admitted two-way video testimony of witness too ill to travel]; United States v Benson, 79 Fed Appx 813 [6th Cir 2003] [permitting the two-way video testimony of an elderly witness too ill to travel]; United States v Gigante, 166 F3d 75, 79 [2d Cir 1999] [permitting two-way video testimony of a key prosecution witness too ill to travel]). Other states have likewise *40allowed the admissibility of two-way video testimony.3 We agree that the public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness can require live two-way video testimony in the rare case where a key witness cannot physically travel to court in New York and where, as here, defendant’s confrontation rights have been minimally impaired.

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).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]) and all other issues raised but not determined on the appeal to that court.