The opinion
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 91
The People &c.,
Respondent,
v.
Jose Inoa,
Appellant.
John R. Lewis, for appellant.
Christopher P. Marinelli, for respondent.
LIPPMAN, Chief Judge:
Early on the morning of January 11, 2005, Edward Contreras
and an associate, Christian Santos, were shot in a grocery store
at the corner of Sherman Avenue and West 204th Street in Upper
Manhattan. Contreras died of his wounds several hours later.
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Santos, although seriously injured, survived. In March 2009,
defendant, Oman Gutierrez and several others were indicted in
connection with those shootings. As is here relevant, defendant
and Oman Gutierrez were charged with first degree murder (Penal
Law § 125.27 [1] [a] [vi]). It was alleged that defendant
murdered Contreras at Gutierrez's request and that he had
expected to be paid for doing so.
Defendant and Oman Gutierrez were tried together in June and
July of 2010. The jury heard evidence that, in the late 1990s,
Oman Gutierrez led a drug ring that did business on a block
situated at Post Avenue and West 204th Street in Washington
Heights. Following a law enforcement "take down" of the
Gutierrez ring in 1999, Oman and several of his associates were
prosecuted and imprisoned for lengthy terms, and in their absence
Edward Contreras and his drug dealing crew took over the Post and
204th Street location. Trial testimony by Eldia Duran, Oman
Gutierrez's paramour during the period of the Contreras shooting,
together with transcribed recordings of some 77 telephone calls
made to Duran and third parties by Oman from prison1 between
December 2004 and May 2005, was introduced to prove that, as
1
The third parties -- usually, individuals Oman had not
received the requisite permission from prison authorities to
telephone -- were conferenced-in by Duran (who Oman was
permitted to call) at Oman's direction. Duran testified that she
routinely remained on the line and overheard what was said, even
if she was not included in the conversation, so as to be
available to act as Oman's de facto telephone operator.
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Oman's term neared its anticipated conclusion, he schemed to
eliminate Contreras, whose appropriation of his "spot" on West
204th Street he believed prevented his ring from making money.
Duran testified that in conversations, both recorded and
unrecorded, to which she was either a party or privy, Oman
disclosed his intention to have defendant, a trusted childhood
friend from the neighborhood of 204th and Post, known by a
variety of street names -- mostly canine, but also as "Andy" and
"Zim" -- return to New York City from Georgia, where he then
lived, to perform the assassination. Duran said it was
understood that, although the still imprisoned Oman had no money,
defendant eventually would be paid for removing Contreras. She
explained that, on his release from prison, Oman expected to
receive $20,000 from one Orlando Torres and that he intended to
use half of that sum to compensate defendant.
Duran recounted that upon defendant's arrival in New York
City in early January 2005, Oman insisted on keeping him secluded
and was concerned that his own contemporaneous return to the
streets for several days a week as a participant in a
transitional work release program should not become public
knowledge. Duran stated that, in preparation for the
assassination, defendant and members of Oman's crew, chauffered
by Joaris Grullon, the wife of one of Oman's associates,
surveilled Contreras to ascertain when and where "to get the
perfect shot"; that Oman was impatient at the inept way in which
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his design on Contreras' life was being executed and was
particularly displeased that the shooting did not take place as
planned on January 9th; and that, on the evening of January 9th,
Oman spoke by telephone from the Edgecombe Correctional Facility
with defendant2 and received defendant's assurance that "She
gonna get done kid. Don't worry about it, big boy. I got this."
Joaris Grullon testified that on the following night -- the
night of January 10th to January 11th -- she drove her blue Honda
to pick up defendant and Oman's cousin Randy Gutierrez on West
218th Street, as she had the night before. She said she drove
the men around for about an hour, as she had the previous
evening, and then, at Randy's direction, double-parked near the
corner of Vermilyea Avenue and West 204th Street. Defendant, she
recalled, got out of the car and walked in the direction of West
204th Street. About ten minutes later he returned, "rushed" into
the car and directed her in Spanish to take off. According to
Grullon, she then returned to 218th Street and dropped defendant
and Randy Gutierrez off.
Enrique Zorilla, Edward Contreras's cousin and driver,
testified that while walking to one of Contreras's cars late on
the night of January 10th and 11th he noticed defendant, first
leaning against a wall smoking, and then jogging toward a bodega
2
Oman, although then on work-release, was required to spend
Sundays at the Edgecombe facility. It emerged at trial that the
killing had been originally set for January 9, 2005, a Sunday, to
provide Oman an alibi of sorts.
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located on West 204th Street and Sherman Avenue, entered moments
before by Contreras and Christian Santos. Defendant, he said,
pulled a gun from his back pocket as he neared and went into the
market. Zorilla remembered hearing shots within the market, and
then seeing defendant exit the store, fire another round into the
market and take flight. Kenny Ortiz testified that on the early
morning of January 11, 2005 he was walking on West 204th Street
near Vermilyea Avenue when he heard a gunshot. He remembered
taking cover between parked cars and seeing defendant, whom he
knew from a prior encounter,3 run by, gun in hand, and get into a
car at Vermilyea Avenue. Contreras was transported to the
hospital by Zorilla and Contreras's friend, Jose Antonetti.
Antonetti testified that, on the way, he asked Contreras who had
shot him and that Contreras replied, "Andy."
Ms. Duran testified that, after the shooting, Oman wanted
defendant to keep off the streets and then to stay in Georgia (to
which he had temporarily returned) until things cooled off, but
that defendant, who had announced his intention immediately to
"throw himself on the block" and was anxious to be paid, was not
cooperative. Duran reported to Oman that defendant had
threatened to come to New York to get his money directly from
Orlando Torres. In ensuing telephone conversations Oman
repeatedly, but unsuccessfully, attempted to prevail upon
3
Lopez testified that, in July 2004, as defendant left the
scene of a turf-related altercation on West 204th Street,
defendant fired a gun in his direction.
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defendant, both through intermediaries and directly, to remain in
Georgia for 60 days. Finally, in May, 2005, after defendant was
shot in New York City under circumstances upon which the present
record sheds little light, Oman advised him during a recorded
conversation that he, Oman, was about to receive "ten" and that
Oman's brother Eliese would give defendant "five," so that
defendant could "calmly leave" and go to Georgia. Oman promised
to send the remaining "five" later via defendant's girlfriend.
Also testifying for the prosecution was New York City Police
Detective Rolando Rivera. Although Rivera, by the time of the
trial and underlying investigation was assigned to the police
Intelligence Division, in the late 1990s he had been deployed to
the Manhattan North Narcotics "module" and, in that capacity,
participated in the 1999 "take down" of the Gutierrez gang. He
was familiar with many of the gang's members -- including their
speaking voices and lingo -- from having monitored a wire used by
the gang during the investigation leading to the "take down." He
initially reviewed selected tape recordings of Oman Gutierrez's
prison phone calls made between December 2004 and May 2005 in
response to a tip that the Gutierrezes had been involved in the
January 2005 slaying of Contreras, and was eventually requested
by the prosecution to translate, transcribe and analyze the
recorded conversations. In the course of so doing, he met with
Ms. Duran and Ms. Grullon.
At trial, Rivera was qualified by the court as an expert in
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decoding phone conversations. Some of his testimony bore upon
the meanings of what were evidently consistently employed code
words (e.g., "onion" for marijuana package, "toy" and
"malacachin" for gun, and "sneakers" for thousands of dollars),
but the bulk of it, covering a considerable portion of the trial
transcript, consisted of interpreting portions of the phone
conversation transcripts which, although sometimes veiled in
their reference and import, were not encoded. Rivera's
transcript explications did not, in the main, draw upon any body
of non-case specific expertise, but rather the information that
he had acquired from various sources, most notably Ms. Duran, as
a member of the team investigating and prosecuting the Contreras
murder. His interpretations essentially harmonized the recorded
conversations with the prosecution's overall theory of how the
murder plot was carried out, and almost without exception
concurred with Ms. Duran's account of what had been communicated
between the co-conspirators.
Defendant's presently advanced appellate claim is that
Detective Rivera should not have been permitted to testify as an
expert respecting the uncoded portions of the conversations
captured on the Guttierez tapes -- that his doing so invaded the
factfinding province of the jury and impermissibly bolstered the
testimony of Duran and other prosecution witnesses whose
credibility might otherwise have been cast in doubt, since many
of them were at the time of defendant's trial themselves facing
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prosecution or had lengthy criminal histories, or some
combination of the two. Moreover, several -- including Duran --
had been offered substantial consideration in exchange for their
cooperation. Defendant claims relatedly that Detective Rivera
was essentially a summation witness, put on the stand to tie
together all the strands of the prosecution's case for the jury
much as a prosecutor would in summing up, but performing that
task as a purveyor of case-specific expertise rather than as an
advocate.
In affirming (109 AD3d 765 [2013]), the Appellate Division
held Detective Rivera's expert testimony to have been properly
received (id. at 766), but expressed the view that even if parts
of his testimony had been admitted in error, any error was
harmless (id., citing People v Crimmins, 36 NY2d 230 [1975]). A
Judge of this Court granted leave (22 NY3d 1199 [2014]) and we
now affirm. Although considerable portions of Detective Rivera's
testimony were admitted in error, the proof of defendant's
commission of the charged crimes was overwhelming and we perceive
no significant probability that, but for the error, the verdict,
as it bore upon defendant, would have been less adverse (see
Crimmins, 36 NY2d at 242).
It is, of course, the role of the jury to determine the
facts of the case tried before it. The jury may be aided, but
not displaced, in the discharge of its fact-finding function by
expert testimony where there is reason to suppose that such
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testimony will elucidate some material aspect of the case that
would otherwise resist comprehension by jurors of ordinary
training and intelligence (see People v Cronin, 60 NY2d 430, 432
[1983]). The decision to allow the testimony of an expert is
generally discretionary, and reviewable in this Court only where
discretion has not been exercised (id. at 433) or has been abused
(see id.). That said, there are situations -- and this is one --
in which an expert so palpably overtakes the jury's function to
decide matters within its unaided competence, that abuse may be
found.
There is, to be sure, no categorical prohibition on the
introduction of police expertise into the evidentiary calculus of
a criminal trial. We have, for example, permitted expert
testimony by a police sergeant respecting the way in which
street-level drug sales are transacted to help a jury understand
why the failure to recover drugs or marked buy-money from an
individual apprehended in a buy-and-bust operation is not
necessarily indicative of the accused's misidentification (People
v Brown, 97 NY2d 500 [2002]). It is instructive to note,
however, that the testimony of the sergeant in Brown was
carefully limited by the trial court to a discrete issue beyond
the ken of ordinary jurors, and that the sergeant was not himself
involved in the underlying investigation and gave no testimony as
to what had actually occurred during the buy-and-bust there
involved. The situation is very different where a police
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officer, qualified as an expert, has participated in the
investigation of the matter being tried and, with the mantel of
an expert steeped in the particulars of the case, gives seemingly
authoritative testimony directly instructive of what facts the
jury should find. Our cases have not dealt with this problematic
scenario, but those of the Second Circuit, most notably United
States v Mejia (545 F3d 179 [2d Cir 2008]) and United States v
Dukagjini (326 F3d 45 [2d Cir 2002]), have.
In both of those cases, law enforcement officers involved in
the investigations upon which the defendants' prosecutions were
founded were duly qualified as experts but permitted to testify
as apparent experts beyond their expertise and upon matters well
within the grasp of lay jurors. In exploring the full reach of
the permission they had been afforded, they became summation
witnesses, instructing the jury comprehensively and with an aura
of expertise, as to how the particular factual issues presented
in each case should be resolved. This, said the Mejia court,
amounted to a "usurpation of the jury's role" (545 F3d at 191),
and was objectionable as well, in both Mejia and Dukagjini, for
operating to inject hearsay into the evidentiary mix and to
abridge the defendants' constitutional right to confront the
witnesses against them; both case agent witnesses, as putative
experts, had premised their testimony largely on inadmissible
out-of-court statements, even when that testimony ceased to be
expert and went only towards proving particular facts.
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While there is here no developed denial-of-confrontation
claim presented -- probably because the principal body of hearsay
relied upon by Detective Rivera, composed of co-conspirator
hearsay, did not contain statements that would qualify as
testimonial under Crawford v Washington (541 US 36 [2004]) and
because the principal out-of-court declarants with whom he
consulted, Ms. Duran and Ms. Grullon, testified at trial and were
subject to cross examination -- there appears little else to
separate this case in its presentation of the basic evidentiary
issue from Mejia and Dukagjini. Here, as in those cases, the
trial court qualified a government agent, intimately involved in
the investigation of the case and development of the prosecution,
to testify as an expert and the agent ended up testifying beyond
any cognizable field of expertise as an apparently omniscient
expositor of the facts of the case.
Had Detective Rivera been qualified to testify simply as to
the meaning of coded expressions in the Gutierrez recordings and
his expert testimony been accordingly limited in scope (see
People v Brown, 97 NY2d at 506), the receipt of that testimony
would not now be problematic for its subject matter; it is not
controversial that the meaning of coded communications is a
proper subject of expert testimony (see Mejia, 545 F3d at 189;
Dukagjini, 326 F3d at 52). Detective Rivera, however, was
qualified by the trial court not simply to decode what was coded,
but to decode telephone conversations generally and, as the trial
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progressed, it became evident that the court understood that
permission to extend to explaining the meaning of virtually
everything that was said during Oman Gutierrez's recorded
conversations, whether it was coded or not.
Mejia identified two ways in which a government agent
qualified as an expert in decoding might exceed the scope of his
expertise:
"The expert might, as did the agent in
Dukagjini, 'testif[y] about the meaning of
conversations in general, beyond the
interpretation of code words.' Id.; see also
United States v Freeman, 488 F3d 1217, 1227
(9th Cir. 2007) ('The fact that [the officer
expert] possessed specialized knowledge of
the particular language of drug traffickers
did not give him carte blanche to testify as
to the meaning of other words in recorded
telephone calls without regard to reliability
or relevance.'). Or, we noted, the expert
might 'interpret[ ] ambiguous slang terms'
based on knowledge gained through involvement
in the case, rather than by reference to the
'fixed meaning' of those terms 'either within
the narcotics world or within this particular
conspiracy.' Dukagjini, 326 F3d at 55"
(Mejia, 545 F3d at 192-193). The present record contains, in
liberal measure, both species of error.
There are, in fact, very few code words of fixed meaning
used in the recorded conversations about which Detective Rivera
testified. Only a small number of expressions that would, even
arguably, fit that description, are identified, and even those
are not clearly referable to some fixed vocabulary in which
expertise might be cultivated. To the extent, then, that the
subject conversations' meaning is not readily accessible, the
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difficulty is not, in the main, that the exchanges were coded,
but that they were conducted in a shifting slang whose reference
was not self-evident. Detective Rivera's testimony consisted, in
large part, of explaining what the conversers referred to based
upon the investigative reconstruction in which he had taken part.
But this kind of interpretive effort -- resolving ambiguity in
utterance by situating it within a particular extra-linguistic
context -- is what juries commonly do, and this jury, at least
presumptively, was as competent as any other to perform that task
without having its work modeled and previewed for it by a
purported expert in the case. It is always possible to suppose
that there are those capable, on the basis of their extra-
judicial inquiries and experience, of judging the facts more
incisively than the individuals actually empaneled to do so, but
that does not mean that in every case it would be appropriate to
have an expert guide the jury through its fact-finding paces.
Trials, by design, are not decided by those pre-schooled in the
matter litigated, however thorough their extra-judicial education
may have been; they are, to the contrary, decided independent of
case-specific preconception on the basis of the evidence
introduced during the proceeding itself in accordance with the
rules of admissibility. Those rules, it is true, allow the
receipt of expert opinion evidence to clarify relevant issues not
amenable to understanding by jurors of average intelligence and
experience, but such proof is not properly received where its
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purpose is simply to provide an alternative, purportedly better
informed, gloss on the facts of the case. In the latter
instance, vaunted expertise merely mimics, and seeks to
substitute for that which it is the function of the trial to
impart and of the jury to acquire in its course. Mejia put it
particularly well: "when . . . officer experts come to court and
simply disgorge their factual knowledge to the jury, the experts
are no longer aiding the jury in its factfinding; they are
instructing the jury on the existence of the facts needed to
satisfy the elements of the charged offense" (545 F3d at 191).
Nothing we have said should be understood as critical of
Detective Rivera's investigative efforts; our concern is with the
use to which his trial testimony was directed. His discovery,
analysis, translation (where necessary from Spanish to English),
and transcription of the Gutierriez prison tapes represented
extraordinarily fine police work pivotal to this case's
development and preparation for trial. With respect to
defendant, however, the evidence anchoring the prosecution at
trial was not primarily what was said on the tapes, much less
what Rivera said about what was said on the tapes, but the
eyewitness accounts of defendant's conduct immediately before and
after the Contreras/Santos shootings. That proof was utterly
compelling. Although each eyewitness's credibility might
certainly have been questioned, together the witnesses's
separately generated accounts meshed into a seamless narrative
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evidently conclusive of the identity of the individual
responsible for the shootings. Once it was established through
this testimony that defendant shot Contreras and Santos in the
early hours of January 11, 2005 at the bodega on the corner of
West 204th and Sherman, the general import of what was being
discussed on the prison tapes would have been self-evident.
Unaided, perhaps the jury would not have discerned every way in
which the conversations bore upon the shootings, their motive,
preparation and aftermath, but, in the large, the relation
between defendant's commission of the shootings and what was said
on the prison tapes was manifest and not in need of express, much
less expert, clarification. The taped conversations were, in any
event, extensively explained by Ms. Duran during her appearance
as a fact witness.
Defendant contends that Ms. Duran's testimony was unduly
bolstered by Detective Rivera's ostensibly expert narrative
substantially confirming her account. This would be a more
powerful claim for relief if Ms. Duran's testimony had been
necessary to prove defendant's guilt of murder. But, as noted,
it was not. Her testimony was important to proving that
defendant murdered Contreras for a price, i.e., that he committed
first degree murder, but the inference that he did so was, in
light of the proof of the murder and its patent economic motive,
far from obscure, and was made manifest by the taped
conversations in which the contemplated payment to defendant and
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its funding source were discussed in close conjunction with the
persistent post-slaying problem of managing defendant's still
unmet expectation that he would be compensated. Ms. Duran's
testimony, that it was understood that defendant would be paid
for carrying off the assassination, was powerfully confirmed by
the manifest content of the taped conversations. Detective
Rivera's imprimatur was entirely dispensable to the already
overdetermined conclusion that the substantial sum earmarked for
and expressly promised defendant by his incarcerated co-
defendant, could have been referable only to his murder of
Contreras.
In deeming the error in admitting Detective Rivera's
extensive summation testimony harmless, we do not minimize the
potency of this species of error to affect the outcome of a
criminal trial. Plainly, had the error occurred in a somewhat
different evidentiary context or involved a preserved denial-of-
confrontation claim, it could well have dictated a reversal
(compare Dukagjini, 326 F3d at 62 [evidentiary error not
reversible given the strength of properly admitted evidence] with
Mejia, 545 F3d at 202 [evidentiary error resulting in denial of
confrontation reversible as not harmless beyond a reasonable
doubt]; and see United States v Grinage, 390 F3d 746, 751 [2d Cir
2004] [Dukagjini error not harmless where government agent's
interpretation of phone calls was the principal evidence against
the defendant and "the jury may well have afforded unusual
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authority to the agent, who was presented as having expertise, as
well as knowledge beyond that available to the jury" (id. at
752)]). The result of this appeal, then, should not encourage
any expectation that the harmless error doctrine will reliably
insulate the practice of using government agents as expert
summation witnesses, and trial courts should, accordingly, be
vigilant against the serious risks that such usage entails.
Accordingly, the order of the Appellate Division should be
affirmed.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Chief Judge Lippman. Judges Read,
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.
Decided June 10, 2015
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