Court of Appeals STATE OF NEW YORK .docx

Court of Appeals
STATE OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
- against -
CHRISTOPHER PORCO,
Defendant-Appellant.
BRIEF FOR THE DISTRICT
ATTORNEYS ASSOCIATION OF THE STATE OF
NEW YORK AS AMICUS CUR IAE

JANET DIFIORE
District Attorney, Westchester County
President, District Attorneys Association
of the State of New York
c/o New York County District Attorney’s
Office
One Hogan Place
New York, New York 10013
Telephone: (212) 335-9000
MORRIE I. KLEINBART
SUSAN AXELROD
ASSISTANT DISTRICT ATTORNEYS
Of Counsel
JULY 2011
i
Page

TABLE OF CONTENTS
TABLE OF AUTHORITIES
..............................................................................................
ii
PRELIMINARY STATEMENT
......................................................................................... 1
STATEMENT OF AMICUS
CURIAE.............................................................................. 3
THE RELEVANT FACTUAL BACKGROUND
........................................................... 4
POINT
...............................................................................................
...................................... 6
PURSUANT TO THE
CONFRONTATION CLAUSE, A
DECLARANT/WITNESS'S OUT-OF-
COURT STATEMENT IS ADMISSIBLE
FOR ITS TRUTH SO LONG AS THE
WITNESS TAKES THE STAND AND IS
SUBJECT TO CROSS-EXAMINATION,
WHETHER OR NOT THE
DECLARANT/WITNESS CAN
REMEMBER THE EVENTS DESCRIBED
IN THAT STATEMENT. ..................................................... 6
CONCLUSION
...............................................................................................
.................... 28

ii
TABLE OF AUTHORITIES
FEDERAL CASES
Bullcoming v New Mexico, 2011 U.S. LEXIS 4790
........................................................ 15
California v Green, 399 U.S. 149 (1970)
..................................................................... 8-9, 12
Carter v Werholtz, 2011 U.S. Dist. LEXIS 591 (D. Kansas
2011) ................................ 19
Crawford v Washington, 541 U.S. 36 (2004)
.................................... 5-8, 14-15, 18, 20, 24
Del Toro v Martel, 2010 U.S. Dist. LEXIS 120554 (C.D. Cal.
2010) ........................... 19
Delao v Kirkland, 2009 U.S. Dist. LEXIS 23054 (C.D. Cal.
2009) ............................... 19
Delaware v Fensterer, 474 U.S. 15 (1985)
......................................................... 9-12, 22, 24
Flores v Lund, 52 Fed.Appx. 868 (8th Cir. 2002)
............................................................ 19

Gorman v Merrill, 2006 U.S.Dist. LEXIS 88774 (D.Maine 2007)
................................. 19
Gutierrez v Yates, 2009 U.S.Dist. LEXIS 64789 (N.D. Cal.
2009) ............................... 19
Hammon v Indiana, 547 U.S. 813 (2006)
............................................................................ 7
Holliday v Symmes, 2009 U.S. Dist. LEXIS 125652 (D.Minn.
2009) ........................... 19
Idaho v Wright, 497 U.S. 805 (1990)
................................................................................... 6
King v Schriro, 2006 U.S. Dist. LEXIS 42876 (D.Arizona 2006)
.................................. 19
Michigan v Bryant, __ U.S. __, 131 S.Ct. 1143 (2011)
...................................................... 7
Ohio v Roberts, 448 U.S. 56 (1980)
...................................................................... 6-7, 18-19
Park v Yates, 2010 U.S. Dist. LEXIS 140585 (C.D. Cal. 2010)
..................................... 19
Salinas v Johnson, 2010 U.S. Dist. LEXIS 98257 (S.D. Tex.
2010) .............................. 19
United States v Harty, 476 F.Supp. 2d 17 (D.Mass. 2007)
.............................................. 19
United States v Keeter, Park and Ahrens, 130 F.3d 297 (7th Cir.
1997) ....................... 19

United States v Knox, 124 F.3d 1360 (10th Cir.
1997).................................................... 19
iii
United States v Milton, 8 F.3d 39 (D.C. 1993)
................................................................. 19
United States v Owens, 484 U.S. 554 (1987)
................................. 11-14, 17-19, 21, 26-27
United States v Roy Spotted War Bonnet, 933 F.2d 1471 (8th
Cir. 1991) .................... 19
United States v Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994)
............................................ 19
West v Rapeleje
STATE CASES
, 2009 U.S.Dist. LEXIS 121409 (E.D. Mich. 2009)
............................. 19
Arizona v Real, 214 Ariz. 232 (Arizona Ct.App. 2007)
................................................... 19
People v Barber, 186 A.D.2d 483 (1st Dept. 1992)
......................................................... 23
People v Cowan, 236 P.3d 1074 (Cal. 2010)
..................................................................... 19

People v Crimmins, 36 N.Y.2d 230 (1975)
..................................................................... 3, 5
People v Ford, 69 N.Y.2d 775 (1987)
................................................................................ 17
People v James, 93 N.Y.2d 620 (1999)
.............................................................................. 18
People v Montes, 16 N.Y.3d 250 (2011)
........................................................................... 17
People v Nieves-Andino, 9 N.Y.3d 12 (2007)
.................................................................. 17
People v Patterson, 93 N.Y.2d 80 (1999)
..................................................................... 16-17
People v Porco, 30 A.D.3d 543 (2d Dept. 2006)
............................................................... 2
People v Porco, 71 A.D.3d 791 (2d Dept. 2010)
............................................................... 5
People v Salcedo, 304 A.D.2d 309 (1st Dept. 2005)
........................................................ 22
People v Savinon, 100 N.Y.2d 192 (2003)
................................................................... 25-26
People v Taylor, 80 N.Y.2d 1 (1992)
................................................................................. 23
People v Tsang, 284 A.D.2d 218 (1st Dept. 2001)
........................................................... 22

People v Vernace, 96 N.Y.2d 886 (2001)
.......................................................................... 22
State v Juan V., 109 Conn. App. 431 (2008)
..................................................................... 19
iv
STATE STATUTES
Criminal Procedure Law Section
60.25........................................................................ 16, 23
Criminal Procedure Law Section 610.70
........................................................................... 26
OTHER AUTHORITIES
Bourget, Whitehurst, Amnesia and Crime
Cima, Merckelbach, Nijman, Knauer, Hollnack,
, 35 J. Am. Acad. Psychiatry Law, 469,
477 (2007)
...............................................................................................
......................... 20
I can't remember Your Honor:
Offenders Who Claim Amnesia,
J. Wigmore,
http://www.gjpsy.uni-goettingen.de ................... 21

Evidence
Reid,
§ 995 J. Chadbourn rev. (1970)
.................................................... 14
Malingering,
, Journal of Psychiatric Practice, 226 (July 2000)
..................................... 21
1
COURT OF APPEALS
STATE OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
-against-
CHRISTOPHER PORCO,
Defendant-Appellant.

BRIEF FOR AMICUS CURIAE
DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF
NEW YORK
PRELIMINARY STATEMENT
The District Attorneys Association of the State of New York
("DAASNY")
submits this brief as amicus curiae in the above captioned
appeal. By permission of
the Honorable Judge Robert S. Smith, Christopher Porco
appeals from an order of
the Appellate Division, Second Department, entered March 9,
2010. That order
affirmed a judgment of the County Court, Orange County
(Berry, J.), rendered
December 12, 2006, convicting him of Murder in the Second
Degree and Attempted
Murder in the Second Degree upon a jury verdict, and
sentencing him to an
indeterminate prison term of twenty-five years to life on the
murder count to run
2

consecutively to a determinate prison term of twenty-five years
for the attempted
murder conviction.1
Defendant was convicted of murdering his father Peter Porco,
confidential
clerk to Justice Anthony V. Cardona, Presiding Justice of the
Appellate Division,
Third Department, and attempting to kill his mother Joan Porco
by hitting each
repeatedly with an axe. At trial, the People introduced, over
defendant's objection,
evidence of non-verbal assertive conduct of Joan in response to
detectives' questions
whether defendant had been the one who had attacked her and
her husband. This
conduct, a nod and a hand gesture, identified defendant as the
killer. In addition, Joan
testified that she had no memory of the events of the evening or
of identifying
defendant as the assailant.
INTRODUCTION
On appeal from the judgment of conviction, defendant claimed
that admission

of this assertive conduct violated the rule precluding hearsay
and his right to
confrontation. The Appellate Division, Second Department2
1 Although geographic jurisdiction was in Albany County, the
trial was held in Orange
County after the Appellate Division, Second Department
granted defendant's motion for a
change of venue. See People v Porco, 30 A.D.3d 543 (2d Dept.
2006).
rejected the latter
argument, but did hold that the non-verbal assertion was
inadmissible hearsay.
Nevertheless, that Court affirmed, concluding that the non-
constitutional error was
2 The appeal was transferred to that court by order of the
Appellate Division, Third
Department, entered May 10, 2007.
3
harmless under the standard for such error outlined in People v
Crimmins
Before this Court, defendant contends,

, 36 N.Y.2d
230, 242 (1975).
inter alia
STATEMENT OF AMICUS CURIAE
, that the Second Department
correctly ruled that Joan Porco's nonverbal assertion did not
constitute an excited
utterance. Defendant argues that the court erred when it held
that, as Joan was
available for cross-examination, the improper admission of that
assertion did not
constitute a Sixth Amendment violation but was, instead, a state
evidentiary error.
Respondent's view is, of course, that the Second Department
erred in its ruling on the
admissibility of the statement as an excited utterance and
properly concluded that
there was no Sixth Amendment violation. Amicus will address
only this constitutional
question, which is one of significance for prosecutions in New
York State: whether
the availability of a witness will render admissible, over a
Confrontation Clause

objection, her testimonial, extrajudicial statement when the
declarant/witness has no
recollection of the events described in that statement.
The District Attorneys Association of the State of New York
(DAASNY) is a
state-wide organization composed of elected District Attorneys
from throughout New
York State, the Special Narcotics Prosecutor of the City of New
York, and their over
2900 assistants. Members of the Association are responsible for
the investigation and
prosecution of violent crimes including homicides, attempted
murders and assaults.
DAASNY's experience on issues relating to the criminal law
and criminal procedure
4
applicable to the prosecution of such crimes places it in a
position to assist the Court's
resolution of the specific issue of statewide concern raised by
this appeal: whether the
Sixth Amendment's requirement that a witness testify and

subject herself to cross-
examination before her out-of-court statements may be
introduced for their truth
mandates that the witness possess a certain level of recollection
about the subject
matter of those out-of-court statements.
THE RELEVANT FACTUAL BACKGROUND
On the morning of November 15, 2004, Peter and Joan Porco
were found in
their home, having been savagely beaten. Peter was discovered
by a colleague who
had come to the Porco's home to check on them after Peter had
failed to arrive for
work. He was lying at the foot of the staircase, dead, having
been struck anywhere
from 10 to 30 times with an axe. The colleague called the
police and then waited
outside of the house for their arrival.
Police personnel entered the house and found Joan, upstairs, on
her bed in a
pool of blood. She was still alive. She, too, had been hit on the
head, and had
suffered a shattered jaw as well as severe head trauma. An

ambulance was called and
while the emergency medical team was treating her, one of the
detectives asked her if
defendant, her son Christopher, had committed the attack. Joan
responded
affirmatively by both nodding her head up and down and
moving her finger in the
same manner. At trial, Joan testified that she had no memory
either of the attack
itself or of her identification of defendant as her attacker.
Evidence of her
5
demonstrative answer to the detective's question was admitted
as an excited utterance
over Confrontation Clause and hearsay objections.
On defendant's appeal renewing these claims, the Appellate
Division, Second
Department rejected the constitutional claim as Joan had taken
the witness stand and
had therefore been available for cross-examination, a
circumstance that eliminates the

Confrontation Clause concerns expressed in Crawford v
Washington, 541 U.S. 36
(2004). It did, however, reject the notion that Joan's non-verbal
assertive head nod
constituted an excited utterance. The court applied the non-
constitutional harmless
error standard enunciated in People v Crimmins, 36 N.Y.2d 230,
242 (1975), and
concluded that "any error in admitting that evidence was
harmless in light of the
overwhelming evidence of the defendant's guilt without
reference to the error and the
absence of any substantial probability that the error might have
contributed to his
conviction." People v Porco
The case is now before this Court on a grant of leave by Judge
Smith.
, 71 A.D.3d 791 (2d Dept. 2010). That court then
affirmed the judgment of conviction.
6
POINT

PURSUANT TO THE CONFRONTATION CLAUSE,
A DECLARANT/WITNESS'S OUT-OF-COURT
STATEMENT IS ADMISSIBLE FOR ITS TRUTH SO
LONG AS THE WITNESS TAKES THE STAND AND
IS SUBJECT TO CROSS-EXAMINATION, WHETHER
OR NOT THE DECLARANT/WITNESS CAN
REMEMBER THE EVENTS DESCRIBED IN THAT
STATEMENT.
The Sixth Amendment's Confrontation Clause states that "[i]n
all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses
against him." Prior to 2004, the United States Supreme Court
interpreted the Sixth
Amendment to admit out-of-court statements for their truth so
long as those
statements bore adequate indicia of reliability. Reliability
could be inferred when the
statements satisfied a firmly rooted exception to the hearsay
rule, such as when they
constituted excited utterances. Otherwise, hearsay statements
were admissible upon a
demonstration that the statements bore particularized guarantees
of trustworthiness.
Ohio v Roberts, 448 U.S. 56 (1980). Under the Ohio v Roberts
framework, the

prosecution could satisfy that requirement by establishing that
the circumstances
surrounding the making of the statement rendered the statement
worthy of belief.
Idaho v Wright
In 2004, the United States Supreme Court decided
, 497 U.S. 805 (1990).
Crawford v Washington,
541 U.S. 36 (2004), a case that worked a sea change in this
area. In Crawford, the
Court ruled that the Sixth Amendment barred the introduction of
"testimonial"
7
hearsay unless the declarant was unavailable to testify and the
defendant had had a
prior opportunity to cross-examine the declarant. In other
words, the Roberts
reliability test no longer governed; rather the issue was whether
the statement was
"testimonial." See also Michigan v Bryant, __ U.S. __, 131

S.Ct. 1143 (2011).
Although the Court declined, in Crawford, to define fully what
the term "testimonial"
meant, it provided a more complete definition in Davis v
Washington, and Hammon
v Indiana
"[s]tatements are nontestimonial when made in the course
of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution."
, 547 U.S. 813 (2006). The Court explained that
Id
At the same time, the
. at 823.
Crawford Court also made clear that so long as the
declarant is available to testify, the Sixth Amendment does not
bar the introduction of
his or her out-of-court statement. Its admissibility is, instead,
governed by state rules

of evidence. 541 U.S. at 59, n. 9 ("when the declarant appears
for cross-examination
at trial, the Confrontation Clause places no constraints at all on
the use of his prior
testimonial statements[]"). The Court clarified that the
Confrontation Clause provides
a "procedural rather than a substantive guarantee. It commands,
not that evidence be
8
reliable, but that reliability be assessed in a particular manner:
by testing in the crucible
of cross-examination." 541 U.S. at 61.
Thus, the admissibility of an out-of-court testimonial statement
over
Confrontation Clause objection turns on the declarant's
availability to testify. If the
witness is able to take the stand, then the Sixth Amendment
does not bar the
admission of her out-of-court statement. If the witness cannot
take the stand, then
that out-of-court statement is inadmissible unless the defendant
had a prior

opportunity to cross-examine the declarant. Indeed, the trend of
Supreme Court
decisions both preceding and following Crawford
Any review of the cases relevant to the impact memory loss has
on
Confrontation Clause analysis with respect to statements made
by witnesses who
testify at trial must begin with
makes clear that that test does not
change, even if the witness's testimony reveals that she cannot
remember either
making the out-of-court statement or the facts contained in that
statement.
California v Green, 399 U.S. 149 (1970). There, Melvin
Porter, who had been arrested for selling marijuana, had told the
police that the
defendant was his supplier and testified at a preliminary hearing
to that effect. Id. at
151. When Porter testified at the defendant's trial, however, he
was evasive on some
subjects and claimed memory loss about certain other events.
As authorized under

Section 1235 of the California Code, the prosecutor introduced
portions of Porter's
hearing testimony as well as the statements that he had made to
the police for their
9
truth. Id. at 152. The California Supreme Court found that
Section 1235 violated the
Sixth Amendment and reversed the defendant's conviction. Id
In reversing the California Supreme Court, the United States
Supreme Court
reviewed the origins of the Confrontation Clause as well as its
own jurisprudence in
this area and noted that, "[v]iewed historically . . . there is good
reason to conclude
that the Confrontation Clause is not violated by admitting a
declarant's out-of-court
statements, as long as the declarant is testifying as a witness
and subject to full and
effective cross-examination."
. at 153.
Id. at 158. The Court held that because Porter had

been called as a witness and was subject to cross-examination,
the Sixth Amendment
was not violated by the introduction of his out-of-court
statements for their truth. Id
To be sure, in
.
at 168.
Green, the Court had no occasion to address the issue of
whether Porter's "apparent lapse of memory so affected [the
defendant's] right to
cross-examine as to make a critical difference in the application
of the Confrontation
Clause. . . ." because neither side had raised the question. Id. at
168-69. The Court
therefore declined to rule on that issue. Nevertheless, Green'
The effect of a witness's memory lapse on Confrontation Clause
analysis was
squarely raised in
s significance is that it
marks the first time the Court recognized that there might be
Confrontation Clause

implications for a witness with a memory lapse different than
those for a witness
whose trial testimony was inconsistent with his out-of-court
statements.
Delaware v Fensterer, 474 U.S. 15 (1985). There, an expert
witness
10
testified that he had examined certain hairs on a cat leash,
which the prosecution
contended was the murder weapon, and had come to the
conclusion that those hairs
were similar to the victim's and that at least one had been
forcibly removed. The
expert explained that there were three methods by which to
determine whether a hair
had been forcibly removed, but that he had no recollection as to
which method he
had used. Id. at 16-17. The defendant complained that he was
denied his Sixth
Amendment right to cross-examine the witness as a result of the
witness's memory
loss on this crucial issue. Id

In rejecting the defendant's claim, the Supreme Court noted
that, to date, its
Confrontation Clause cases could be divided into two "broad
categories": those
involving the admission of out-of-court statements and those
concerned with
restrictions imposed either by law or by the trial judge on the
scope of cross-
examination.
. at 17.
Id. at 18. The witness's memory loss fell into neither category:
the
People were not attempting to introduce the witness's out-of-
court statements and the
trial judge had not limited the defense's cross-examination. The
Court recognized
that the goals of cross-examination were to test the witness's
perception and memory.
But, the Court continued, "it does not follow that the right to
cross-examine is denied
by the State whenever the witness's lapse of memory impedes
one method of
discrediting him." Id.

"[t]he Confrontation Clause includes no guarantee that
every witness called by the prosecution will refrain from
giving testimony that is marred by forgetfulness, confusion,
at 19. Indeed,
11
or evasion. To the contrary, the Confrontation Clause is
generally satisfied when the defense is given a full and fair
opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of the
fact finder the reasons for giving scant weight to the
witness' testimony."
Id. at 21-22. The Court reasoned that, even where the witness
could not remember,
the witness was still required to make an oath and testify in the
presence of the
accused, and the fact finder was still able to observe the
witness's demeanor under
cross-examination. Id
In
. at 19-20.
United States v Owens, 484 U.S. 554 (1987), the issue before
the Supreme

Court was "the significance of a hearsay declarant's memory
loss both with respect to
the Confrontation Clause, and with respect to" the federal rules
of evidence. Id. at
557 (citations omitted).3
3 The relevant Federal Rules of Evidence were Rule 802, which
states that hearsay is
not admissible at trial unless provided by other rules, and Rule
801(d)(1)(C), which permits
the introduction of a witness's prior statement, if that statement
is "a prior identification of a
person after perceiving that person." See 484 U.S. at 557, n. 2.
There, the victim was attacked with a metal pipe and
sustained severe memory impairment as a result. In an
interview with an FBI agent
shortly after the attack, the victim identified the defendant as
his attacker from a
photo array. At trial, the victim testified that he remembered
feeling the blows to his
head and seeing blood on the floor. He told the jury that he
also remembered
identifying the defendant to the agent. On cross-examination,
however, he admitted

that he did not remember seeing his assailant when attacked and
also could not
12
remember whether any of the people who visited him at the
hospital might have
suggested the defendant to him as his attacker. Id
The Supreme Court noted that, in both
. at 556.
California v Green, and Delaware v
Fensterer, it had left open the question of whether "a
Confrontation Clause violation
can be founded upon a witness' loss of memory." 484 U.S. at
557-58. The Court now
answered it. First, it reiterated that the Confrontation Clause
guaranteed the
opportunity for cross-examination, not for effective cross-
examination. It then
turned to its statement in Fensterer that this opportunity was not
denied when a
witness was unable to recall the basis for his current testimony,
as the defendant could

still probe the witness's bias, lack of care, eyesight and his
memory in general. The
Court reasoned that those areas for examination were similarly
available where the
witness could not explain his past identification. Id. at 559.
The Court also said that
the fact that the testimony involved an out-of-court
identification did not change the
analysis. That was because the dangers of admitting hearsay
testimony were not
present when the declarant was on the witness stand and subject
to unrestricted cross-
examination. Id
The Court then addressed the defendant's alternate argument
that the
introduction of the witness's out-of-court identification violated
Federal Rule of
Evidence 801(d)(1)(C), which removed from the definition of
hearsay a prior
identification statement so long as the declarant testified at the
trial and was "subject
to cross-examination." The Court rejected the lower court's
conclusion that, as a

. at 560.
13
result of his memory loss, the victim was not subject to cross-
examination. The Court
ruled that the requirement that the witness be subject to cross-
examination was met
when the witness took the stand, was placed under oath and
responded willingly to
questions:
"Just as with the constitutional prohibitions, limitations on
the scope of examination by the trial court or assertions of
privilege by the witness may undermine the process to such
a degree that meaningful cross-examination within the
intent of the Rule no longer exists. But that effect is not
produced by the witness's assertion of memory loss --
which, as discussed earlier, is often the very result sought to
be produced by cross-examination, and can be effective in
destroying the force of the prior statement."
Id. at 561-62.
Owens must resolve the question as to whether, for Sixth
Amendment
purposes, a witness is available to testify even though she has
no memory of the crime

or making an identification of her attacker. Owens makes clear
that a defendant's
Sixth Amendment rights are protected so long as the witness is
called to the stand and
exposes herself to cross-examination, even if her answers are
that she cannot recall
anything. While the victim/witness in Owens did not have
complete amnesia, he had
so little memory of the salient events that his testimony hardly
provided anything
substantive. The victim had no memory of most of the details
of his attack, other
than being hit; he had no memory of seeing his attacker; he had
no memory of who
had said what to him before he made his out-of-court
identification; and he had no
memory of why he thought the defendant was his attacker. His
one memory, of
14
making an identification, was so bereft of substantive details
that it cannot be credibly
argued that, at the time he took the witness stand, he was in

possession of any of the
facts that established the defendant's guilt. If, as the Owens
Crucial to a proper understanding of
Court found, the
defendant's right to cross-examine the witness was satisfied
there, a defendant's
confrontation rights are similarly protected when the witness
also does not remember
making the identification. The test turns on whether the victim
took the stand to
answer questions -- not on the answers to those questions.
Owens is its recognition not only that a
witness is regarded as subject to cross-examination when he is
placed on the stand,
under oath, and responds willingly to questions, 484 U.S. at
561, as was the case here,
but that the Confrontation Clause's guarantee of an opportunity
is not denied when a
witness testifies as to his current belief but is unable to
recollect the reason for that
belief. It is sufficient that the defendant has the opportunity to
bring out such matters

as the witness's bias, his lack of care and attentiveness, his poor
eyesight, and even
(what is often a prime objective of cross-examination, see 3A J.
Wigmore, Evidence
While
§
995, pp. 931-932 [J. Chadbourn rev. 1970]) the very fact that he
has a bad memory.
484 U.S. at 559.
Owens is a pre-Crawford case, there can be little doubt that its
conclusion -- that a declarant's memory loss will not bar use of
the declarant's out-of-
court statement if he or she is called to the stand – is the law
even post-Crawford.
First, Crawford itself iterated that the Confrontation Clause was
a procedural, not a
15
substantive guarantee. 541 U.S. at 61. In other words, as long
as the mechanism of
cross-examination of the declarant is available to a defendant
against whom the

testimonial hearsay is being introduced, the Confrontation
Clause is not violated.
This is necessarily true even if the declarant has no specific
recollection about the
topic of his statement. The Supreme Court has strongly
indicated that this remains
true.
In Bullcoming v New Mexico, 2011 U.S. LEXIS 4790, decided
June 23, 2011,
the Supreme Court was faced with a Confrontation Clause
challenge to introduction
of a forensic laboratory report of the defendant's blood alcohol
level in the absence of
the forensic analyst who prepared the report. A divided
Supreme Court concluded
that there had indeed been a Confrontation Clause violation but
significantly, in
recognizing that had the analyst testified, the report would have
been admissible over
the constitutional challenge, it addressed the impact of the
forensic analyst's likely
inability to "recall a particular test, given the number of tests
each analyst conducts

and the standard procedure followed in testing." Even with this
inability, observed
the Court, the analyst's testimony under oath would have
enabled the defendant's
counsel to raise before a jury questions concerning her
proficiency, the care he took in
performing his work, and his veracity." 2011 U.S. LEXIS 4790
fn. 7. In other words,
inability to recall the circumstances relating to the events in the
extrajudicial statement
will not create a Confrontation Clause problem for testimonial
hearsay when the
declarant does testify and offers herself for cross-examination.
16
Critically, this Court, too, has recognized that it is the ability to
ask questions
that is the salient issue when addressing admissibility of
hearsay offered as a result of a
witness's memory loss. In People v Patterson
"the testimony of a third party non-identifying witness is
allowed as evidence-in-chief under the statute only when
coupled with the real identifying witness's testimony as to

the prior identification (CPL 60.25[2]). It is through this
coupling that the testimony of both 'witnesses' forms a
complimentary, reliable chain of evidence, linking the
acceptance of the prior identification.
, 93 N.Y.2d 80, 83 (1999), this Court
considered whether Criminal Procedure Law Section 60.25
permitted the introduction
of third-party testimony about a prior identification when the
identifying witness was
deceased. Pursuant to that section, testimony about an out-of-
court identification
may be introduced where the identifying witness testifies that
she has made that prior
identification and is "unable at the proceeding to state, on the
basis of present
recollection, whether or not the defendant is the person in
question[.] . . ." CPL 60.25
(1)(iii). The Court rejected the People's argument that, because
the eye witness was
deceased, he was no longer able to state, on the basis of present
recollection, that the
defendant was the person who had attacked him and that
therefore the statute
applied. In making this ruling, this Court explained that:

The testimony of the
third party, who witnessed the previous identification but
not the crime, standing alone cannot provide the
indispensible safeguards of affording the defendant the
benefit of probing cross-examination and the defensive
development of reasonable doubt about the identification."
17
Id. at 83 (emphasis supplied)(citations omitted). As this
highlighted portion makes
clear, the Court found that the statute provided sufficient
protection of the
defendant's rights by mandating that the defendant be permitted
to pose questions to
the identifying eye witness. As is obvious, those questions
would be unlikely to elicit
much substantive proof as the witness, by definition, has no
present recollection of
whether the defendant was, in fact, her attacker. In other
words, and in lockstep with
Owens
This analysis resolves defendant's federal constitutional claim.
Defendant also
asks this Court to evaluate his claim under Article 1 Section 6

of the New York State
Constitution (Reply Brief at 8-10). That claim is not only
unpreserved as defendant
did not raise it in the trial court, but he has raised it here,
improperly, for the first time
in his reply brief.
, this Court concluded that the critical determination in
protecting a
defendant's rights was not on the quality of answers to the
cross-examination
questions, but on the fact that the questions could be posed in
the first instance.
People v Ford, 69 N.Y.2d 775, 777 (1987). In any event, this
Court
has never held that Article 1 Section 6 is to be given a different
or more expansive
interpretation from the Sixth Amendment. Rather, this Court
has consistently looked
to the Sixth Amendment in deciding whether a defendant's
cross-examination rights
have been protected. See People v Montes, 16 N.Y.3d 250
(2011) (relying on federal
cases in holding that the defendant's confrontation rights were
not violated when a

witness could not be recalled to testify about certain
information that was not
discovered until after her testimony had concluded); see also
People v Nieves-Andino,
18
9 N.Y.3d 12 (2007) (analyzing admissibility of out-of-court
statements under
Crawford); People v James
Moreover, the
, 93 N.Y.2d 620 (1999) (looking to federal cases
interpreting 6th Amendment to resolve admissibility of certain
out-of-court
statements).
Owens analysis still suggests nothing untoward with the
admission of a testimonial statement under the circumstances
presented here. There
was a minority view in Owens, espoused by Justices Brennan
and Marshall in their
dissent in Owens, which would require the courts to examine
the witness's answers in

order to evaluate whether those answers are sufficiently
substantive to "provide the
fact-finder" with "an adequate basis upon which to assess the
truth of the proffered
evidence." Owens
To begin, that test was proposed prior to the Supreme Court's
ruling in
, 484 U.S. at 570 (dissent by Justices Brennan and Marshall).
We
submit that such a test would be unworkable and lead to unfair
results.
Crawford. This timing is critical in assessing the viability of
the dissenters' proposed
test. When Owens was announced, Confrontation Clause claims
were evaluated
under the Ohio v Roberts reliability framework. This, as the
Crawford court noted,
was a substantive guarantee and not the procedural assurance
that the Clause actually
provided. But, by definition, the proposed test was keyed to the
Ohio v Roberts
The

framework.
Owens dissenters dismissed the concern that their test would
cause
"countless Confrontation Clause challenges," 484 U.S. at 570,
by predicting that it
19
would be the "rare case" in which a witness suffered from total
memory loss and that
instead:
[m]ore typically, witnesses asserting a memory loss will
either not suffer (or claim) a total inability to recollect, or
will do so under circumstances that suggest bias or ulterior
motive; in either case, the witness' partial memory or self-
interest in claiming a complete memory loss will afford the
fact finder an adequate basis upon which to evaluate the
reliability and trustworthiness of the out-of-court
statement. Even in those relatively few cases where no
such basis can be elicited, the prior statement is still
admissible if it bears independent "indicia of reliability."
Id. at 571 (emphasis supplied).4 As this highlighted section
makes clear, Justice
Brennan was operating under the assumption that prosecutors
would be able to
satisfy the Ohio v Roberts

4 It is worth noting that, even with the holding in Owens,
criminal defendants have
repeatedly brought Confrontation Clause challenges, all of
which have been unsuccessful,
based on the quality of the witness's memory. The respondent
cites a number of such cases
in his brief and we have included a list of others. See, e.g.,
Flores v Lund, 52 Fed.Appx. 868
(8th Cir. 2002); United States v Roy Spotted War Bonnet, 933
F.2d 1471 (8th Cir. 1991);
United States v Keeter, Park and Ahrens, 130 F.3d 297 (7th Cir.
1997); United States v
Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994); United States v
Knox, 124 F.3d 1360 (10th Cir.
1997); United States v Milton, 8 F.3d 39 (D.C. 1993); Carter v
Werholtz, 2011 U.S. Dist.
LEXIS 591 (D. Kansas 2011); Salinas v Johnson, 2010 U.S.
Dist. LEXIS 98257 (S.D. Tex.
2010); Park v Yates, 2010 U.S. Dist. LEXIS 140585 (C.D. Cal.
2010); Gutierrez v Yates,
2009 U.S.Dist. LEXIS 64789 (N.D. Cal. 2009); West v
Rapeleje, 2009 U.S.Dist. LEXIS
121409 (E.D. Mich. 2009); Del Toro v Martel, 2010 U.S. Dist.
LEXIS 120554 (C.D. Cal.
2010); Delao v Kirkland, 2009 U.S. Dist. LEXIS 23054 (C.D.
Cal. 2009); West v Rapeleje,
2009 U.S. Dist. LEXIS 121409 (E.D.Mich. 2009); Holliday v
Symmes, 2009 U.S. Dist.
LEXIS 125652 (D.Minn. 2009); United States v Harty, 476
F.Supp. 2d 17 (D.Mass. 2007);
Gorman v Merrill, 2006 U.S.Dist. LEXIS 88774 (D.Maine
2007); King v Schriro, 2006 U.S.
Dist. LEXIS 42876 (D.Arizona 2006); Arizona v Real, 214

Ariz. 232 (Arizona Ct.App.
2007); People v Cowan, 236 P.3d 1074 (Cal. 2010); State v Juan
V., 109 Conn. App. 431
(2008).
reliability test and thus would have other means by which
20
to introduce out-of-court statements. That is no longer the
relevant framework and it
necessarily follows that any test grounded in judicial
determination of reliability will
no longer satisfy the demands of the Confrontation Clause.
In fact, as a result of Crawford, utilizing this proposed test
would work a
significant disadvantage -- and one clearly not anticipated by
Justice Brennan -- to
prosecutors. Uncooperative witnesses could simply take the
stand and insist that they
did not remember anything. Prosecutors would be powerless to
do as Justice
Brennan had suggested and introduce those out-of-court
statements that were
otherwise admissible under New York's evidentiary rules as

proof of the defendant's
guilt. As a result, guilty defendants would be able to avoid
punishment for their
crimes. Simply put, this pre-Crawford test simply should not be
applied in a post-
Crawford
But, even had the law not been changed so significantly, the
dissenter's
proposed test suffers from several flaws. First, it requires trial
judges to separate
legitimate amnesia from feigned amnesia. While Justice
Brennan appeared to view
this determination as simple, such an assumption cannot be
sustained. It should be
noted that psychiatrists themselves -- experts in the field -- have
been grappling with
the difficulties in determining whether an individual truly
suffers from amnesia or is
malingering. They also have noted that, while tests have been
developed that assist in
that determination, those tests require far more than simply
interviewing the subject
and making a conclusion.

world.
See Bourget, Whitehurst, Amnesia and Crime, 35 J. Am.
21
Acad. Psychiatry Law, 469, 477 (2007) (the important issue is
how to determine whether
someone is feigning amnesia or is suffering genuine memory
loss and despite several
attempts, there is still no clear answer as to how to do this);
Reid, Malingering, Journal
of Psychiatric Practice, 226 (July 2000) (noting that a
malingerer can continue the
deception for an hour and that analyzing malingering requires
the use of various
tests); Cima, Merckelbach, Nijman, Knauer, Hollnack, I can't
remember Your Honor:
Offenders Who Claim Amnesia, German Journal of Psychiatry,
http://www.gjpsy.uni-
goettingen.de (discussing the difficulties experts have in
differentiating between
organic and feigned memory loss given the ease of simulating
memory amnesia). In

other words, a trial judge would be poorly suited to make this
determination.
Additionally, the difference between total and partial recall is
not readily
apparent. Indeed, Owens proves that point. There, the victim
of the attack did not
have complete
Thus, even in
amnesia: he remembered being attacked, bleeding, and making
the out-
of-court identification. Nonetheless, the dissenters described
him as recalling
"virtually nothing" and complaining that his memory loss was
so profound that the
person assaulted prior to trial was not the person who testified
at trial. 484 U.S. at
566. And, they urged the Court to find that the victim had not
been available to
testify.
Owens, the dissenter's proposed test morphed from an
evaluation of whether the witness remembered nothing to
whether what the witness
remembered was at all useful to the defense. And, that test will

open the floodgates.
http://www.gjpsy.uni-goettingen.de/�
http://www.gjpsy.uni-goettingen.de/�
22
At the risk of stating the obvious, it must be stressed that any
test devised to assess
Confrontation Clause claims will necessarily be applied, not
just to the introduction of
out-of-court statements, but to the admissibility of in-court
testimony. Indeed in
Fensterer, the defendant's Confrontation Clause attack was not
focused on the
admission of out-of-court statements as none were admitted.
His complaint was that
he could not adequately test the truth of the expert's in-court
conclusion as a result of
the expert's memory loss. Furthermore, all witnesses suffer
some memory loss
between the time of the crime and the time that they testify.
Trials routinely take
place months, and in some cases, years after the commission of
the crimes. Where

defendants have managed to evade arrest for extended periods,
trials may well be
delayed for more than a decade. See, e.g. People v Vernace, 96
N.Y.2d 886 (2001) (20
year delay); People v Salcedo, 304 A.D.2d 309 (1st Dept. 2005)
(16 year delay); People
v Tsang, 284 A.D.2d 218 (1st Dept. 2001) (20 year delay).
Given the passage of time,
the witnesses will have forgotten details, even on key issues. It
is also not unusual that
they will be unable to refresh their recollections, even by
reviewing prior statements.
If the Confrontation Clause is interpreted to entitle a defendant
to a certain quality of
answers, rather than to permit him to pose the questions, then,
trial courts will be
mired in constant evaluations as to whether the witness's
memory lapses were on such
significant topics that the defendant's ability to obtain a certain
quality of answers was
affected. In that case, the court would be asked to rule on
requests to strike the
entirety of the witness's testimony as a remedy for the Sixth
Amendment violation.

23
Placing the focus of the Sixth Amendment on the quality of
answers will affect
the viability of several long-standing evidentiary rules. For
instance, pursuant to New
York's past-recollection-recorded exception to the hearsay rules,
a memorandum
made of a past fact of which the witness lacks a present
recollection may be received
in evidence so long as it is established that the witness observed
the matter recorded
at the time it occurred, can testify that the record correctly
represented his knowledge
when made and the witness lacks a present recollection of the
recorded information.
People v Taylor, 80 N.Y.2d 1, 8 (1992); People v Barber
A holding that the defendant's Confrontation rights are
protected so long as
the witness takes the stand, even if that witness suffers from
amnesia about the crime,
will not work to tip the scales to the advantage of prosecutors.
Again, at the risk of

, 186 A.D.2d 483 (1st Dept.
1992) (where witness testified that he did not remember
observing the defendant pull
a gun, his sworn statement made the prosecutor shortly after the
crime was
admissible). The availability of that exception will be severely
curtailed. And, of
course, the instances in which a prosecutor may introduce out-
of-court identification
testimony pursuant to Criminal Procedure Law 60.25 will be
similarly limited. Trial
judges will now have to assess whether the witness's lack of
recollection of the
recorded events or of the defendant's identity as the assailant is
so encompassing as to
render cross-examination "meaningless" under this new test. In
those cases, the
People will be unable to introduce the previous writing or elicit
testimony about the
witness's out-of-court identification.
24

stating the obvious, a witness's memory loss poses problems for
the People in
satisfying their burden of proof. Common sense dictates that
jurors will be extremely
hesitant to convict when the People must rely on testimony from
witnesses who, at
the time of trial, claim to have little or no memory of the events
surrounding the
crime. In the absence of substantial corroborative proof,
prosecutors will have
significant difficulties in obtaining convictions, even when they
are permitted to
introduce the witness's out-of-court statements.
Furthermore, defendants are not without recourse. As the
Supreme Court has
discussed, see Fensterer, 474 U.S. at 21-22, defendants are still
permitted to ask all
relevant questions and will most assuredly be able to obtain
answers on some topics.
For instance, they can pose questions highlighting the witness's
relationship with the
defendant before the crime to establish the witness's bias. They
can probe the

witness's character in general to establish an overall lack of
trustworthiness. And, they
can highlight to the jury the witness's memory loss and argue
that a conviction should
not be based on such a lack of concrete testimony from the
witness stand. As noted
supra
Finally, in an effort to find some support of his view of the
inadmissibility of
testimonial hearsay even when the declarant testifies, defendant
turns to this Court's
decisions on the missing witness charge. Defendant contends
that unavailability in
the context of a missing witness charge is logically identical to
unavailability for
resolution of
, in many instances, this argument will be persuasive.
Crawford claims such as the one made here. Thus, concludes
25
defendant, since such unavailability includes a witness's
assertion of the privilege

against self-incrimination or incapacity, a witness's incapacity
due to amnesia also
renders that witness unavailable and her testimonial hearsay
inadmissible even if she
takes the stand (Defendant's Brief at 30-31). In pressing this
view, defendant
attempts to convince this Court to equate the proverbial apples
with oranges. As this
Court has explained:
"The 'missing witness' instruction allows a jury to draw an
unfavorable inference based on a party's failure to call a
witness who would normally be expected to support that
party's version of events. The instruction rests on the
commonsense notion that the nonproduction of evidence
that would naturally have been produced by an honest and
therefore fearless claimant permits the inference that its
tenor is unfavorable to the party's cause. The rule is best
understood by recognizing that the inquiry must be
undertaken from the standpoint of the honest litigant.
Thus, when a party truthfully presents a version of events,
a factfinder would expect that party's friend or ally (if
knowledgeable) to confirm it. If a witness that valuable
does not appear to support the party's side -- and if there is
no good reason for the witness's absence -- it is only
natural to suppose (or as the law has it, infer) that the
witness cannot honestly help the party."
People v Savinon, 100 N.Y.2d 192, 196-197 (2003) (internal
quotations and citations

omitted). Clearly, the underpinnings of the missing witness
charge start with the
assumption that the witness actually remembers the subject
matter of his testimony.
It then focuses on how to direct the jury on what inferences are
to be drawn from the
fact that those memories are not placed before it. Put
differently, in the missing
witness context, the question of availability focuses on whether
the witness, with a
26
memory of the events at issue, can reasonably be made to
appear at trial. That, of
course, is a quite different question from whether the procedural
protections of the
Confrontation Clause are offended by producing a witness to
court whose memory is
limited.
Moreover, the section of Savinon which defendant cites lends
him no aid.
There, the Court stated that it should look to CPL Section
610.70 for guidance in

defining availability. Id
In
. at 198, fn. 4. That section of the Criminal Procedure Law is
concerned with the circumstances under which a witness's out-
of-court testimony
from a prior proceeding may be introduced at trial. Section
670.10(c) permits the
introduction of that testimony when the witness is "unable to
attend" the proceedings
for a variety of reasons or "cannot with due diligence be found.
. . ." In other words,
it deals with the issue of physical unavailability only. Again,
that is simply not the case
where the issue is the severity of the physically available
witness's memory loss.
Owens, the Supreme Court noted the defendant's argument that
the Court's
ruling created an inconsistency between Rule 804 of the Federal
Rules of Evidence
which listed, among the definitions of unavailable witness, a
witness who testified to a
lack of memory, and Rule 801(d)(1)(C), which removed from
the definition of hearsay

a witness's out-of-court identification so long as the witness
was available to testify.
The Court explained that there was no such inconsistency.
Rather, the drafters had
created a "semantic oddity," 484 U.S. at 563, and that, in fact,
as the "two
characterizations are made for two entirely different purposes . .
. there is no
27
requirement or expectation that they coincide." Id. at 564. That
observation applies
with even more force here. After all, defendant suggests that
the language in an
opinion concerning a New York State jury charge must be read
in pari materia
In sum, the Appellate Division's determination that defendant's
Sixth
Amendment rights were not violated was consistent with
Supreme Court law and
wholly correct. This Court should not adopt the test advocated
by the dissent in

with
terminology used by the United States Supreme Court in
interpreting a constitutional
protection. There should certainly be even less expectation that
those
characterizations coincide.
Owens.
28
CONCLUSION
Defendant's judgment should be affirmed.
Respectfully submitted,
JANET DIFIORE
Westchester County District Attorney
President, District Attorneys
Association of the State of New York
By: _________________________________

Susan Axelrod
Assistant District Attorney
New York County
Of Counsel
MORRIE I KLEINBART
SUSAN AXELROD
Assistant District Attorneys
Of Counsel
July 2011
UTABLE OF CONTENTSTABLE OF
AUTHORITIESPRELIMINARY STATEMENTSTATEMENT OF
AMICUS CURIAETHE RELEVANT FACTUAL
BACKGROUNDPOINTPURSUANT TO THE
CONFRONTATION CLAUSE, A DECLARANT/WITNESS'S
OUT-OF-COURT STATEMENT IS ADMISSIBLE FOR ITS
TRUTH SO LONG AS THE WITNESS TAKES THE STAND
AND IS SUBJECT TO CROSS-EXAMINATION, WHETHER
OR NOT THE DECLARANT/WITNESS CAN REMEMBER
THE EVENTS DES...CONCLUSION
March 9, 2010 Page 1.
PEOPLE v PORCO, CHRISTOPHER
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D26373

W/kmg
AD3d Argued - November 30, 2009
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
RANDALL T. ENG
SANDRA L. SGROI, JJ.
2007-04459 DECISION & ORDER
The People, etc., respondent,
v Christopher Porco, appellant.
(Ind. No. 848/05)
Kindlon and Shanks, P.C., Albany, N.Y. (Terence L. Kindlon
and Kathy Manley of
counsel), for appellant.
P. David Soares, District Attorney, Albany, N.Y. (Christopher
D. Horn and Brett M.
Knowles of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court,
Albany County (Berry,
J.), rendered December 12, 2006, convicting him of murder in
the second degree and attempted
murder in the second degree, upon a jury verdict, and imposing
sentence. By decision and order of
the Appellate Division, Third Department, entered May 10,
2007, this appeal was transferred to this
Court for hearing and determination (see NY Const, art VI, §
4[i]).

ORDERED that the judgment is affirmed.
The defendant was convicted of murdering his father and
attempting to murder his
mother with an axe while the victims were at home asleep in
their bed.
The defendant contends on appeal that the trial court erred in
permitting a detective
to testify that the defendant’s mother, while being treated by
paramedics at her home after the attack,
nodded affirmatively in response to the detective’s question as
to whether the defendant attacked her.
Specifically, the defendant argues that the trial court erred in
admitting evidence of the mother’s
gesture as an excited utterance under the recognized common-
law exception to the rule against
hearsay and, relying upon Crawford v Washington (541 US 36)
and Davis v Washington (547 US
813), the defendant also contends that the trial court’s ruling in
this regard deprived him of his Sixth
Amendment right of confrontation.
Here, the affirmative nod was not made spontaneously, but in
response to probing,
direct questions by the detective and, as such, constituted
testimonial hearsay subject to exclusion
from evidence in accordance with Crawford (see People v

Ballerstein, 52 AD3d 1192). Although
the defendant’s constitutional right of confrontation was not
violated here, since his mother, unlike
the declarant in Crawford, was available to testify at trial, the
defendant correctly contends that the
detective’s testimony concerning the mother’s gesture was not
admissible on the ground that the nod
constituted an excited utterance (see People v Vasquez, 88
NY2d 561). In order for a statement to
qualify as an excited utterance, it must be “made under the
stress of excitement caused by an external
event, and not the product of studied reflection and possible
fabrication” (People v Johnson, 1 NY3d
302, 306), with the utterance being “spontaneous and
trustworthy” (id., quoting People v Edwards,
47 NY2d 493, 497). In light of the lapse of time between the
attack on the defendant’s mother, and
her responses to the detective’s questions, the nod in question
cannot be deemed an excited utterance.
Although the detective should not have been permitted to testify
that the defendant’s
mother identified the defendant, any error in admitting that
evidence was harmless in light of the
overwhelming evidence of the defendant’s guilt without
reference to the error and the absence of any
substantial probability that the error might have contributed to
his conviction (see People v Crimmins,
36 NY2d 230; see also People v Leon, 209 AD2d 342, 343).
We reject the defendant’s contention that he was deprived of a
fair trial by the trial
court’s ruling that certain limited, uncharged crime evidence
could be introduced to prove his identity
as the perpetrator of the crimes of which he was convicted here.

“[A]lthough evidence of uncharged
crimes is inadmissible to show a defendant's criminal
predisposition (People v Allweiss, 48 NY2d 40;
People v Vails, 43 NY2d 364; People v Fiore, 34 NY2d 81;
People v Agront, 104 AD2d 821), if the
same is offered for another relevant purpose (such as to
establish identity of the perpetrator of the
crime being tried), it will generally be allowed (People v
Jackson, 39 NY2d 64; People v Condon,
26 NY2d 139; People v Molineux, 168 NY 264)” (People v
Powell, 107 AD2d 718, 719).
In this case, the defendant’s identity as the perpetrator was at
issue, and the proof that
the defendant engaged in a pattern of staging crimes at his
parents’ home to make it appear as though
there had been break-ins, was sufficiently unique to make the
uncharged crime evidence highly
probative on that issue (see People v Beam, 57 NY2d 241, 253;
People v Allweiss, 48 NY2d 40, 47-
48). Further, it is evident that the trial court properly balanced
the probative value of this limited
evidence against the potential for prejudice, as most of the
uncharged crime evidence which the
People sought to introduce was precluded from admission into
evidence in the first instance, and the
court limited the reference to the one uncharged crime that was
admitted into evidence and gave
limiting instructions to the jury to the effect that the evidence
could only be considered by them for
the purpose of determining whether the People had established a
modus operandi.
The defendant’s argument that the trial court erred in failing to
conduct a hearing to
determine whether certain evidence was inadmissible as fruit of

the poisonous tree, on the ground that
it was derived from the defendant’s suppressed statement to
police, was preserved for appellate
review (see CPL 470.05[2]). However, we are not persuaded
that such a hearing was required. The
defendant did not confess in the suppressed statement, and law
enforcement officials conducted a
massive, independent investigation of the crimes. All of the
evidence which the defendant claims was
derived from his suppressed statement was collateral to the
statement itself, and the People
established that, as to the identification of certain witnesses
allegedly derived from the suppressed
statement, any taint had dissipated (see United States v
Ceccolini, 435 US 268; People v Mendez,
28 NY2d 94, cert denied 404 US 911) and, as to other evidence,
that it was legitimately obtained in
the course of the police investigation, independent of the
suppressed statement (see Wong Sun v
United States, 371 US 471, 488; Silverthorne Lumber Co. v
United States, 251 US 385, 392; People
v Arnau, 58 NY2d 27, 37; People v Richardson, 9 AD3d 783;
People v Goodwin, 286 AD2d 935).
Finally, we reject the defendant’s contention that he was
deprived of a fair trial due
to prosecutorial misconduct. While one question asked by the
prosecutor during redirect examination
of a detective, and some of the prosecutor’s comments in
summation, were improper, the

prosecutor’s misstatements were not so egregious or pervasive
as to deprive the defendant of a fair
trial, and, in the instances where the defendant objected, the
trial court took prompt and appropriate
curative action (see People v Diotte, 63 AD3d 1281; People v
Gardner, 27 AD3d 482; cf. People
v Riback, 13 NY3d 416; People v Calabria, 94 NY2d 519).
SKELOS, J.P., DICKERSON, ENG and SGROI, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
ALM Properties, Inc.
Page printed from: New York Law Journal
Back to Decision
People v. Christopher Porco, 05-848
Unknown
05-848
2006-07-11 00:00:00.0
ALBANY COUNTY
County Court
Albany County District Attorney

Attorney for the People
Kindlon and Shanks
Attorney for Defendant
Judge Berry
UPON reading and filing the within letter to the Court dated
June 12, 2006, from Terence L. Kindlon, Esq., of Kindlon and
Shanks, P.C., attorney for defendant, the proceedings held in
open Court on June 15, 2006 and upon all the papers and
proceedings had herein, it is hereby Ordered that the defendant's
application is decided as follows:
Defendant moves for a Pre-Trial Hearing pursuant to Frye v.
United States (293 F. 1013)to determine the admissibility of
analysis and interpretation of mitochondrial DNA evidence
which the District Attorney intends to introduce at trial.
Trial Courts in the State of New York have previously
determined, after holding a Frye Hearing, that expert testimony
relating to mitochondrial DNA analysis and interpretation are
generally accepted as reliable in the scientific community (See,
People v. Ko, Ind. # 1998-2449, Supreme Court, New York
County, [oral decision rendered May 11, 2000] and People v.
Klinger, Ind. # 2000-849, County Court, Nassau County,
September 5, 2000). In upholding the Trial Court's ruling in
People v. Ko, supra, the Appellate Division of the Supreme
Court,
First Judicial Department stated "The court correctly determined
that mitochondrial DNA analysis has been found reliable by the
relevant scientific community" and noted that many
jurisdictions have also accepted this type of DNA evidence
(People v. Ko, 304 AD2d 451, app.den. 1 NY3d 598, vacated
and remanded, Ko v. New York, 542 US 901, on remand

adhered to 15 AD3d 173, app. den. 5 NY3d 807, writ of certiori
denied, Ko v. New York, 2006 U.S. Lexis 81). The Court found
no decision of the Appellate Division of any other Judicial
Department of New York State addressing the issue and
therefore is required to follow the Decision of the Appellate
Division, First Judicial Department on mitochondrial DNA
evidence,
i.e. its analysis and interpretation as being generally accepted as
reliable in the scientific community.
Based on the foregoing, defendant's Motion for a Pre-Trial Frye
Hearing is denied.
The aforesaid constitutes the Decision and Order of the Court.
New York Law Journal: People v Christopher Porco 05 848
http://www.newyorklawjournal.com/CaseDecisionFriendlyNY.js
p?id=1...
1 of 1 9/11/2013 5:17 PM
===============================================
==================
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 162
The People &c.,
Respondent,
v.
Christopher Porco,
Appellant.

Terence L. Kindlon, for appellant.
Christopher D. Horn, for respondent.
District Attorneys Association of the State of New
York, amicus curiae.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant Christopher Porco claims that his federal
constitutional right to confront the witnesses against him was
violated by the admission at his criminal trial of testimony that
his gravely injured mother nodded affirmatively when asked by
the
- 1 -
- 2 - No. 162
police if he was her assailant. This occurred as medics were
preparing his mother for treatment, immediately after she was
discovered lying in her bed in the family home, covered with
blood, suffering from severe head trauma and unable to speak
because her jaw was shattered and dislocated. Even assuming,
without deciding, that the testimony about the nod was

constitutionally infirm, any error was harmless beyond a
reasonable doubt.
Trial errors resulting in violation of a criminal
defendant's Sixth Amendment right to confrontation "are
considered harmless when, in light of the totality of the
evidence, there is no reasonable possibility that the error
affected the jury's verdict" (People v Douglas, 4 NY3d 777, 779
[2005], citing People v Crimmins, 36 NY2d 230, 240-241
[1975]).
Here, overwhelming evidence placed defendant at the family
home
near Albany, New York, during the predawn hours of November
15,
2004, when the crimes for which he was convicted (the murder
of
his father and the attempted murder of his mother while they
slept) were committed there.
This evidence included, among many other things, video-
recordings from traffic cameras in Rochester, New York, where
defendant was attending the University of Rochester, which

captured images of a yellow Jeep Wrangler as it headed in the
direction of the New York State Thruway at 10:36 P.M. on
November
14, 2004, and headed back toward the campus at 8:30 A.M. on
- 2 -
- 3 - No. 162
November 15, 2004, and expert testimony that this vehicle was
of
the same class and displayed characteristics unique to the jeep
that defendant drove; expert testimony that defendant was in the
0.39% of North Americans whose mitochondrial DNA profile
matched
the profile from a sample extracted from a toll ticket handed out
at Thruway exit 46 in Rochester at 10:45 P.M. on November 14,
2004, and handed in at Thruway exit 24 in Albany at 1:51 A.M.
on
November 15, 2004; and evidence that at 2:14 A.M., 23 minutes
later, the burglary alarm system at the family home (located 9.3
miles from exit 24) was turned off by someone using a master

code
known only to the two victims, defendant, his brother, who was
stationed in the United States Navy in South Carolina at the
time, and possibly defendant's uncle and a female family friend,
who were not in any way implicated. And a neighbor, a
construction superintendent, testified that he observed a yellow
Jeep Wrangler in the driveway of the family home around 3:45
or
4:00 A.M. on November 15, 2004, as he was driving from his
residence on the same street to the site of the construction
project he was supervising at the time, which was about two
hours
and 20 or 30 minutes away.
The jury also learned that defendant on five occasions
claimed to have been planning to or to have slept in the lounge
of his dormitory on November 14-15, 2004, but seven fellow
students, who were in the lounge for various extended and
overlapping periods of time between 10:30 P.M. on November
14,
- 3 -

- 4 - No. 162
2004, and 3:30 A.M. on November 15, 2004, testified that they
did
not see him there; that defendant was first observed on campus
on
November 15, 2004 at 8:45 A.M., about one mile from where
his
jeep was later found parked, running toward his dormitory, and
was seen in the lounge at 9:30 A.M.; and that although
defendant
told several friends that he had tried to contact his parents at
home or at work by telephone on November 15, 2004, the
telephone
records did not support this claim, and his father's secretary
testified that she did not receive a telephone call from
defendant, although he told a friend that he had spoken with
her.
There was also considerable evidence that defendant repeatedly
lied to his parents about his mounting financial and academic
problems, and that his parents had caught on.

Further, the jury was presented with evidence, properly
admitted by the trial court with a limiting instruction, of a
seeming break-in at the family home during the night of
November
18-19, 2002 while defendant was home from college for the
Thanksgiving holiday.* On this occasion, two laptop computers
were stolen. Defendant conceded (by stipulation when the
recovered computer was admitted into evidence) that he sold
one
of these computers on Ebay to a California resident 20 days
*The People unsuccessfully sought to admit evidence of three
reported burglaries predating November 15, 2004, to which
defendant was connected by the police only after that date --
two
at the family home (including the November 18-19, 2002
incident),
and one at the veterinary hospital where he had worked.
- 4 -
- 5 - No. 162
later. The evidence of this staged break-in was unique and
highly probative of defendant's identity as the perpetrator of

the crimes for which he was being tried, where the family home
was likewise staged to make it appear as though his parents had
been victimized by a stranger -- e.g., the keypad for the
burglary alarm system, installed after the November 2002
incident, was smashed although the alarm had, in fact, been
turned off by someone who knew the master code. But as the
jury
learned (and the perpetrator obviously did not know), it was not
possible to disarm the system or obliterate the record of the
master code's use (which was stored in a control panel in the
basement) by damaging the keypad.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Lippman and
Judges
Ciparick, Read, Smith, Pigott and Jones concur. Judge Graffeo
took no part.
Decided October 18, 2011
- 5 -

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