Opposition Brief — Carlos Tapia, Petitioner v. New York

No. 19-159

In the

Supreme Court of the United States

__________________

CARLOS TAPIA,

v.

NEW YORK,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

New York Court of Appeals

__________________

BRIEF IN OPPOSITION

__________________

DARCEL D. CLARK

District Attorney

Bronx County

NANCY D. KILLIAN

Appeals Bureau, Chief

JAMES J. WEN

Assistant District Attorney

Counsel of Record

Office of the District Attorney

Bronx County

198 East 161st Street

Bronx, New York 10451

(718) 838-6669

wenj@bronxda.nyc.gov

Counsel for Respondent

October 31, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether the admission of a police officer’s out-ofcourt statement regarding a crime, as contained in his

grand jury testimony, comports with the Confrontation

Clause of the Sixth Amendment to the United States

Constitution, when the officer testifies at trial, is

subject to cross-examination, but does not remember

the incident.

ii

STATEMENT OF RELATED PROCEEDINGS

There are no other court proceedings directly

related to this case.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 3

REASONS TO DENY THE WRIT. . . . . . . . . . . . . . 12

I.

THERE IS NO GENUINE CONFLICT

AMONG THE LOWER COURTS . . . . . . . . . 12

II.

THE NEW YORK COURT OF APPEALS

CORRECTLY HELD THAT THE

ADMISSION OF COSGROVE’S GRAND

JURY TESTIMONY DID NOT VIOLATE

THE CONFRONTATION CLAUSE . . . . . . . 17

III.

THIS CASE IS A POOR VEHICLE FOR

RESOLVING THIS ISSUE . . . . . . . . . . . . . . 30

IV.

THERE IS NO COMPELLING REASON TO

REVIEW THIS ISSUE NOW . . . . . . . . . . . . 32

V.

ANY ERROR WAS HARMLESS . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iv

TABLE OF AUTHORITIES

CASES

Blunt v. United States,

959 A.2d 721 (D.C. 2008) . . . . . . . . . . . . . . . 21, 26

California v. Green,

399 U.S. 149 (1970). . . . . . . . . . . 17, 18, 19, 20, 27

Cookson v. Schwartz,

556 F.3d 647 (7th Cir. 2009). . . . . . . . . . . . . 14, 15

Crawford v. Washington,

541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . passim

Delaware v. Fensterer,

474 U.S. 15 (1985). . . . . . . . . . . . . . . 18, 20, 23, 26

Diggs v. United States,

28 A.3d 585 (D.C. 2011) . . . . . . . . . . . . . . . . 26, 27

Douglas v. Alabama,

380 U.S. 415 (1965). . . . . . . . . . . . . . . . . . . . . . . 25

Goforth v. State,

70 So. 3d 174 (Miss. 2011) . . . . . . . . . . . . . passim

Holliday v. Minnesota,

555 U.S. 856 (2008). . . . . . . . . . . . . . . . . . . . . . . 32

Leverton v. Colorado,

138 S. Ct. 1265 (2018). . . . . . . . . . . . . . . . . . . . . 32

Michigan v. Long,

463 U.S. 1032 (1983). . . . . . . . . . . . . . . . . . . 13, 14

In re N.C.,

105 A.3d 1199 (Pa. 2014) . . . . . . . . . . . . . . . 16, 17

v

People v. Rivera,

84 N.Y.2d 766 (1995) . . . . . . . . . . . . . . . . . . . . . 33

People v. Savinon,

100 N.Y.2d 192 (2003) . . . . . . . . . . . . . . . . . . . . . 4

People v. Tapia,

32 N.Y.3d 1017 (2018) . . . . . . . . . . . . . . . . . . . . 11

Sibron v. New York,

392 U.S. 40 (1968). . . . . . . . . . . . . . . . . . . . . . . . 32

Smith v. State,

25 So. 2d 264 (Miss. 2009) . . . . . . . . . . . . . . 21, 22

State v. Holliday,

745 N.W.2d 556 (Minn. 2008). . . . . . . . . 21, 22, 32

State v. Legere,

157 N.H. 746 (2008) . . . . . . . . . . . . . . . . . . . . . . 21

State v. Leverton,

405 P.3d 402 (Colo. App. 2017) cert. denied,

No. 17SC311, 2017 WL 4391829

(Colo. Oct. 2, 2017) . . . . . . . . . . . . . . . . . . . . . . . 32

State v. Pierre,

277 Conn. 42 (2006) . . . . . . . . . . . . . . . . . . . . . . 21

State v. Price,

146 P.3d 1183 (Wash. 2006) . . . . . . . . . . . . . . . . 21

United States v. Ghilarducci,

480 F.3d 542 (7th Cir. 2007). . . . . . . . . . . . . 14, 15

United States. v. Milton,

8 F.3d 39 (D.C. Cir. 1993) cert. denied,

513 U.S. 919 (1994) . . . . . . . . . . . . . . . . . . . 27, 28

vi

United States v. Owens,

484 U.S. 554 (1988). . . . . . . . . . . . . . . . . . . passim

United States v. Torres,

845 F.2d 1165 (2d Cir. 1988) . . . . . . . . . . . . . . . 31

United States v. Torrez-Ortega,

184 F.3d 1128 (10th Cir. 1999). . . . . . . . . . . . . . 25

Woodall v. State,

336 S.W.3d 634 (Tex. Crim. App. 2011) . . . . . . . 21

CONSTITUTION

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . passim

1

INTRODUCTION

It is well established that the Confrontation Clause

of the Sixth Amendment gives the accused the right “to

be confronted with the witnesses against him[,]” which

entails an opportunity to cross-examine adverse

witnesses, as well as to face his accusers before a jury.

See U.S. Const. amend. VI. But what happens if a live,

testifying witness cannot remember the facts of the

case, and his prior, out-of-court statement is introduced

at trial? Does the witness’ memory loss deprive the

defendant of his promised opportunity for crossexamination in violation of his confrontation rights?

This Court has already addressed this issue in

United States v. Owens, 484 U.S. 554 (1988): No, the

Confrontation Clause does not bar the introduction of

an out-of-court statement of a testifying witness with

memory loss, because the Clause “guarantees only an

opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to

whatever extent, the defense might wish.” See id. at

559 (citations and quotation marks omitted). Rather,

“[i]t is sufficient that the defendant has the opportunity

to bring out such matters as the witness’ bias, his lack

of care and attentiveness, his poor eyesight, and even

(what is often a prime objective of cross-examination)

the very fact that he has a bad memory.” Id. (citations

omitted). Moreover, Owens’ vitality is undisturbed by

this Court’s seminal decision in Crawford v.

Washington, 541 U.S. 36 (2004), which underscored the

Clause’s traditional guarantee of a witness’ presence at

trial to be “test[ed] in the crucible of crossexamination.” Id. at 61.

2

Accordingly, certiorari should be denied because

there is no genuine split among the federal circuits or

state courts of last resort in this long-resolved

confrontation question, as the rule set forth in Owens

has been applied consistently throughout the lower

courts. Certiorari, therefore, should be reserved for a

case that truly implicates a potential divide and can

provide meaningful guidance in its resolution. This is

not that case.

Moreover, the New York Court of Appeals correctly

identified and applied Owens in this case, finding that

the lack of memory of the retired police witness did not

render him unavailable under the Confrontation

Clause because he testified at trial, where his out-ofcourt statement from his grand jury testimony was

admitted, and he was subjected to cross-examination.

Although the witness could not remember the incident,

his cross-examination was not, as petitioner contends,

an “empty procedure” (petition, p. 1 (quoting Crawford,

541 U.S. at 74 (Rehnquist, C.J., concurring in the

judgment))) as the defense was able to effectively

emphasize the witness’ lack of memory and impugn the

accuracy of the transcription of his prior statement.

And even if this question were otherwise worthy of

certiorari, this Court’s judicial discretion cautions

against reviewing this particular case because

petitioner had demanded that this witness be called to

testify, petitioner has been deported, and finally, any

error regarding the witness’ testimony was harmless.

3

STATEMENT OF THE CASE

At trial, Sergeant Charlie Bello testified that on

November 2, 2008, he was driving Lieutenant James

Cosgrove back to the police precinct at about 3:30 a.m.

when he saw petitioner “body slam” the victim,

Alejandro Mejia, in the street outside a bar and drag

him between two parked cars. App. 2a. The officers

exited their vehicle to intervene and, while Cosgrove

pulled petitioner off the victim, Bello stopped another

man who was “fidgeting with his waistband” and

running towards the altercation. Id.; Court of Appeals

Appendix (C.A. App.) 205. After Cosgrove separated the

victim from petitioner, Bello noticed the victim was

“bleeding profusely from his face and neck.” Id.; see

C.A. App. 219. Petitioner and the other man were

arrested.1 Bello observed a shattered beer bottle on the

ground where the victim had been assaulted. App. 2A.

The victim testified at trial that the attack started

when he was struck from behind and fell to the ground.

C.A. App. 71. Defenseless, all the victim could do was

try to cover himself with his arms while he was being

punched, kicked, and slammed against parked cars.

C.A. App. 73; see App. 2a-3a. The victim felt “something

warm running down,” and he realized that he had been

bleeding from cuts “all over [his] face.” C.A. App. 73,

167; see App. 2a-3a. Although the victim identified

petitioner as one of his two assailants, he did not know

which of the men had slashed his face. C.A. App. 184;

1

The People presented the case against the other apprehended

individual to the grand jury, but the grand jury declined to vote a

true bill.

4

see App. 3a.2 The physician who treated the victim at

the emergency room testified that the five lacerations

to the victim’s face and neck were “consistent with

being struck with a sharp cutting instrument,” such as

a piece of glass. App. 3a; Court of Appeals

Supplemental Appendix (C.A. Supp. App.) 33-34. The

physician explained that the victim’s neck lacerations

were “potentially life threatening” because of their

proximity to the carotid artery and the vena cava. App.

3a; C.A. Supp. App. 26-28, 83.

During the People’s case, defense counsel informed

the trial court that she would seek a missing witness3

charge if the People did not call Cosgrove to testify.

App. 3a. The People stated that Cosgrove had retired

from the police department and had no independent

recollection of the case. If required to call him to avoid

a missing witness charge, the People would seek to

introduce his grand jury testimony as a past

recollection recorded. Id. As relevant here, defense

counsel advanced two conflicting arguments. Counsel

contended that Cosgrove’s lack of memory rendered

him unavailable for cross-examination, thus violating

2

Petitioner claims that the victim “could not see either of the

[assailants] until the attack ended” (petition, p. 5). Petitioner,

however, ignores the fact that the victim testified, “There were two

people[] who were hitting me, and [petitioner] is one of the persons

who did that” (C.A. App. 184), and that “I did see them hitting me,

but I could not say whether it was him or the other guy [who did

the slashing].” C.A. App. 184.

3

“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.” People v. Savinon, 100 N.Y.2d 192, 196 (2003).

5

petitioner’s right to confrontation under Crawford v.

Washington, 541 U.S. 36 (2004). Nonetheless, according

to counsel, Cosgrove was available to the People for the

purpose of the missing witness charge. App. 3a-4a.

When confronted by the court with these inconsistent

positions and offered the opportunity to withdraw her

application for the missing witness charge, counsel

declined. App. 3a-4a. Ultimately, the trial court found

that Cosgrove was “literally subject to crossexamination by being on the witness stand under oath

and passed to [the defense] as a witness for cross

examination.” App. 4a; C.A. App. 331. In addition, the

trial court held that Cosgrove’s prior grand jury

testimony would potentially be admissible as a past

recollection recorded because he was in attendance and

subject to cross-examination. App. 4a.

The People called Cosgrove to the stand, and he

testified that on November 2, 2008, he had been

working an 11:00 p.m. to 7:45 a.m. shift, in uniform,

with Bello. App. 4a. Based on his review of police

paperwork, Cosgrove was also able to testify that he

assisted in arresting two individuals at the scene, but

he could not independently recall the circumstances

leading to petitioner’s arrest. Id. The People then

sought to introduce Cosgrove’s grand jury testimony as

a past recollection recorded: Cosgrove testified that he

appeared before the grand jury four days after the

offense; that the event was fresh in his mind at the

time; that he testified truthfully and accurately before

the grand jury; and that his review of the stenographic

transcript of his prior testimony did not refresh his

present recollection of the events. App. 4a. Finding the

appropriate evidentiary foundation established, the

6

court allowed a portion of Cosgrove’s grand jury

testimony to be read into the record (App. 4a), in which

the prosecutor read the question and Cosgrove read the

responses (C.A. App. 361-62, 364):

Q: Question: Okay. Can you briefly describe the

circumstances that le[d] up to the arrest that

night, what you observed?

A: Answer: I was in the passenger seat of a

parked Police Department’s vehicle. We

proceeded southbound on Jerome Avenue

from the vicinity of 178th Street. As we [were]

going to East Clarke Place, we noticed a

disturbance in front of a bar. We exited the

vehicle. There was a van between myself and

the crowd of people. Couldn’t see what [was]

going on. As I went around the rear of the

van, I noticed a person standing above

another person. The person on the floor was

bleeding and the other person was kicking

him in the head.

Q: Question: The person that was kicking him

in the head[,] that individual’s name?

A: Answer: Mr. Tapia.

C.A. App. 364-65. Another portion of the grand jury

transcript was read into the record:

Q: Question: Did you happen to recover

anything of an evidentiary nature from

either defendant?

A: Answer: No.

7

Q: Question: Did you observe anything around

on the floor by the – where the defendant

was standing over the complainant?

A: Answer: Yes.

Q: [Question:] What was that?

A: Answer: There was glass all over the floor.

C.A. App. 365-66. The trial court then gave the limiting

instruction that “a memorandum of a past recollection

is not of itself independent evidence of the facts

contained therein. It is auxiliary to the testimony of the

witness.” App. 5a; C.A. App. 366.

On cross-examination, defense counsel initially

questioned Cosgrove about his partnership with Bello,

and Cosgrove replied that Bello was his partner and

driver on the night of petitioner’s arrest. App. 5a.

Cosgrove testified that he had been to the area of the

assault, which was located “right across [the street]

from the [police] precinct,” on various occasions “to

intervene in bar fights.” App. 5a; C.A. App. 355, 373.

Defense counsel then focused her inquiry on the

circumstances surrounding Cosgrove’s grand jury

testimony. Cosgrove repeatedly testified that he did not

remember the circumstances leading to petitioner’s

arrest, even after reviewing his grand jury testimony,

explaining that he “did midnights for most of [his]

career and a fight outside of a bar [did not] really stick

out in [his] mind [because he] responded to a lot of

them.” App. 5a; C.A. App. 355. Defense counsel not only

focused on Cosgrove’s lack of present recollection but

also elicited that Cosgrove’s grand jury testimony that

8

he had been a passenger in a “parked police

department vehicle” was probably supposed to read

“marked” police vehicle. App. 5a; C.A. App. 369.

Although Cosgrove testified that “[he] could swear to

[the grand jury transcript’s] accuracy that if [he had]

testified to something, that it’s true” (C.A. App. 37071), he admitted that he did not review a copy of the

transcript other than in preparation for trial and could

not swear that the official court reporter’s transcription

of his grand jury testimony was accurate because of his

lack of independent recollection. App. 5a; C.A. App.

370-72.

After the close of evidence, the trial court submitted

three counts to the jury under a theory of acting in

concert: assault in the first degree; attempted assault

in the first degree; and assault in the second degree.

App. 6a. In its final charge, the trial court instructed

the jury on how to consider Cosgrove’s grand jury

testimony as a past recollection recorded. The court

reminded the jury that evidence of past recollection

recorded was auxiliary to the witness’s trial testimony

and not independent evidence of the facts. The court

further instructed as follows:

A memorandum of a past recollection is not of

itself independent evidence of the facts

contained therein. Although it may be received

in evidence in connection with and as an

auxiliary to the testimony of the witness, its use

is not regulated by the rules governing

documentary evidence.

The witness swears to the facts contained in the

memorandum not from memory, but because of

9

confidence in the correctness of the writing. The

writing thus becomes a present evidentiary

statement verified by the oath of that witness.

Therefore, you may consider the witness had

knowledge at the time the testimony was taken

of the events he testified to and whether he saw

the reported testimony at or near the time the

testimony was taken and recognized it at the

time as containing a true statement of facts

within his own knowledge.

You may consider the witness’ testimony on this

issue in deciding what weight to give the

statements contained in the former testimony.

You are at liberty to accept as much as you think

accurate and disregard the rest or accept or

disregard it in its entirety.

C.A. App. 511-12; see App. 6a-7a.

The jury convicted petitioner of attempted assault

in the first degree, acquitting him of the top count of

assault in the first degree. App. 7a.

On direct appeal, the New York Supreme Court’s

Appellate Division, First Department, affirmed

petitioner’s conviction by a vote of 3-2. Id. The court

held that it was a proper exercise of discretion for the

trial court to admit Cosgrove’s grand jury testimony as

a past recollection recorded. App. 45a. The court found

that the People had laid a proper foundation for the

admission of Cosgrove’s grand jury testimony and there

was no violation of the Confrontation Clause because

Cosgrove testified at trial and was subject to crossexamination. App. 46a. The court further held, “[i]n

10

any event, there was no prejudice to defendant because

[the grand jury testimony] was entirely cumulative of

Officer Bello’s testimony.” Id.4 The court also concluded

that the evidence was legally sufficient to support the

conviction (App. 44a-45a), but two Appellate Division

justices dissented on that sole ground and would have

reduced petitioner’s conviction to attempted second

degree assault. App. 46a. The dissenters contended

that the evidence was not legally sufficient because it

did not establish beyond a reasonable doubt that

petitioner, alone or acting in concert, cut the victim

with a dangerous instrument. Id. One of the dissenting

Justices granted petitioner leave to appeal to the New

York Court of Appeals. App. 7a.

The New York Court of Appeals affirmed by a 4-3

vote. Pertinently, the majority held that the admission

of Cosgrove’s grand jury testimony did not violate the

Confrontation Clause under the Sixth Amendment of

the United States Constitution, relying on this Court’s

decision in United States v. Owens, 484 U.S. 554 (1988),

in which this Court “directly addressed the situation

4

Petitioner claims that the Appellate Division reached this

conclusion by “mistakenly attributing to Bello testimony that

petitioner was ‘kicking the victim in the head while the victim was

bleeding’” (petition, p. 8, n.1). While it is true that the Appellate

Division misattributed this observation to Bello, it is not clear how

dispositive this was to the court’s conclusion that Cosgrove’s grand

jury testimony was cumulative. The court’s conclusion was

supported by the fact that Cosgrove’s grand jury testimony was, as

the New York Court of Appeals found, “consistent with Bello’s trial

testimony” (App. 5a) and, therefore, added little to the evidence

already presented at trial with the exception of the additional “fact

that Cosgrove saw [petitioner] kick the victim in the head” (App.

5a).

11

where a witness was unable to explain the basis for a

prior out-of-court identification due to memory loss.”

See App. 15a-16a. In light of this Court’s clear

precedent, the court observed that “the right to

confrontation guarantees not only the right to crossexamine all witnesses, but also the ability to literally

confront the witness who is providing testimony

against the accused in a face-to-face encounter before

the trier of fact.” Id. Accordingly, “[t]he Confrontation

Clause is satisfied when these requirements are

fulfilled – even if the witness’s memory is faulty.” App.

16a. The majority, therefore, concluded that

“Cosgrove’s presence at trial as a testifying witness,

where he was subjected to cross-examination before the

trier of fact who must assess the credence and weight

to be accorded to his testimony as a whole, precludes

[petitioner’s] Confrontation Clause argument.” App.

17a.

After petitioner completed his sentence, he was

deported from the United States. See App. 7a, n.3.5

5

During the pendency of petitioner’s appeal to the New York Court

of Appeals, the People moved to dismiss the appeal because of

petitioner’s removal from the United States, which was

independent of his criminal conviction. The Court of Appeals

denied the motion to dismiss the appeal. People v. Tapia, 32

N.Y.3d 1017 (2018).

12

REASONS TO DENY THE WRIT

I.

THERE IS NO GENUINE CONFLICT

AMONG THE LOWER COURTS.

Petitioner fails to identify any genuine split of

authority among any of the federal circuit courts or

state courts of last resort that requires this Court’s

intervention. Petitioner argues that the writ should be

granted because “[t]he decision below deepens a split

among federal courts of appeals and state appellate

courts on whether a witness’s physical presence at trial

is enough to vindicate the defendant’s confrontation

right when intervening memory loss prevents the

witness from defending or explaining his prior

testimonial statement” (petition, pp. 10-11). However,

no such split exists because there is no such case from

any federal circuit court or state court of last resort

that holds that where a live testifying witness’ out-ofcourt statement is introduced at trial, the defendant’s

federal confrontation rights are violated if the witness

cannot remember the facts described in his prior

statement, and therefore, cannot defend or explain his

statement on cross-examination.

In asserting discord among the lower courts’

Confrontation Clause jurisprudence, petitioner

principally relies on the Supreme Court of Mississippi’s

decision in Goforth v. State, 70 So. 3d 174 (Miss. 2011).

The Goforth court “squarely held that it violates a

defendant’s confrontation right to admit a witness’s

prior out-of-court testimonial statement, where, by the

time of trial, the witness experienced a ‘total lack of

memory’ regarding the events described in a prior

statement” (petition, p. 11). Petitioner’s reliance is

13

misplaced because the Supreme Court of Mississippi

expressly decided the confrontation issue on state

constitutional grounds: “Since Article 3, Section 26 of

the Mississippi Constitution provides defendants a

constitutional right to confront the witnesses against

them, we base our opinion on its provisions. Federal

caselaw serves as our guide, but Mississippi

jurisprudence compels the result.” Id. at 183 (internal

citations omitted). The court even later reiterated, “We

find that, under the Mississippi Constitution, [the

defendant] did not have a constitutionally adequate

opportunity to cross-examine [the witness] at trial or

beforehand.” Id. at 187.

Although petitioner appears to recognize this

obstacle, he nonetheless suggests that the purported

split survives because “[Goforth] turned exclusively on

Crawford and federal precedent” (petition, p. 12, n.2).

On the contrary, in Michigan v. Long, 463 U.S. 1032

(1983), which was even cited in Goforth (70 So. 3d at

183), this Court held:

If a state court chooses merely to rely on federal

precedents as it would on the precedents of all

other jurisdictions, then it need only make clear

by a plain statement in its judgment or opinion

that the federal cases are being used only for the

purpose of guidance, and do not themselves

compel the result that the court has reached. In

this way, both justice and judicial

administration will be greatly improved. If the

state court decision indicates clearly and

expressly that it is alternatively based on bona

fide separate, adequate, and independent

14

grounds, we, of course, will not undertake to

review the decision.

Long, 463 U.S. at 1041. Accordingly, there can be no

serious dispute that the decision in Goforth was based

on the Mississippi Constitution and its jurisprudence

and, therefore, does not implicate the federal

confrontation rights at issue in this case.

Petitioner’s reliance on Seventh Circuit dicta fares

no better. In both Cookson v. Schwartz, 556 F.3d 647

(7th Cir. 2009) and United States v. Ghilarducci, 480

F.3d 542 (7th Cir. 2007), the Seventh Circuit

hypothesized that a witness’ total memory loss could

possibly render him unavailable for confrontation

purposes. See Cookson, 556 F.3d at 651; Ghilarducci,

480 F.3d at 548-49. Initially, in both cases, the Seventh

Circuit concluded the defendants’ confrontation rights

had not been violated, and neither case involved a

witness with total memory loss, as petitioner asserts

was the case for Cosgrove. See Cookson, 556 F.3d at

652; Ghilarducci, 480 F.3d at 549.

Cookson theorized that Crawford’s footnote nine,

which states that “when the declarant appears for

cross-examination at trial, the Confrontation Clause

places no constraints at all on this use of his prior

testimonial statements” (Crawford, 541 U.S. at 59 n.9),

is “not dispositive” as to whether he is available,

pointing to subsequent language in the footnote that

the Clause does not bar admission of a statement if the

declarant is present at trial “to defend or explain it.”

See Cookson, 556 F.3d at 651. But ultimately,

Cookson’s remarks about the potential implications of

a witness’ total memory loss on the defendant’s federal

15

confrontation rights went unaddressed, since the

witness in the case was able to recall the underlying

incident (but could not recall making the prior

statement) during cross-examination, and, therefore,

the Seventh Circuit held that there was no violation of

the Confrontation Clause. Id. at 652. To the extent

Cookson’s reading of Crawford’s footnote nine has any

value in establishing a split, that interpretation has

not percolated in any other federal circuit court of

appeals.

Moreover, Ghilarducci casts doubt on whether it

can be said that Cosgrove suffered the sort of “total

memory loss” speculated about in Cookson. In

Ghilarducci, the Seventh Circuit determined that the

witness did not suffer total memory loss because “[b]y

referencing documents that memorialized his

interactions with [the defendant], [the witness] was

also able to answer some questions on that topic.” 480

F.3d at 549. Similarly, with the aid of police

paperwork, Cosgrove was able to answer background

questions about his police career, the night of the

arrest, and the circumstances surrounding his grand

jury testimony. See App. 4a-5a.

Indeed, Cosgrove’s lack of memory is not even

analogous to the “total memory loss” experienced by the

witness in Goforth. In Goforth, the witness made his

statement to police, but before trial, he was injured in

an automobile accident that “substantially impaired his

physical and mental conditions,” and he testified that

“he could not remember anything that had occurred

two years prior to the wreck.” 70 So.3d at 182. The

witness’ memory loss was so severe, he stated at trial,

16

“I can’t remember probably half my life.” Id. He

recalled neither the incident nor giving his statement

to police, and he could only “guess” that he had written

the statement based on his signature. Id. In contrast,

Cosgrove stated that “[t]he case happened almost five

years ago. I left the police department a year ago.

When I left, I put the police department behind me. I

concentrate on what I do now[,] which is be[ing] with

my family.” C.A. App. 352. Cosgrove later added that

memories of “certain [arrests] stick out and this

doesn’t” because he “did midnights for most of [his]

career and a fight outside of a bar [did not] really stick

out in [his] mind. [He] responded to a lot of them . . .”

C.A. App. 355. Thus, unlike the witness in Goforth,

Cosgrove’s memory of this specific incident faded

through the natural passage of time and was not the

result of any physical disability or mental impairment.

Finally, petitioner cites to some cases, including

decisions of lower state courts, that “have recognized

that even when a witness is physically present in the

courtroom, the witness can be so nonresponsive as to

implicate the confrontation right” (petition, p. 13). In

particular, he cites In re N.C., 105 A.3d 1199 (Pa.

2014), a case in which the Pennsylvania Supreme

Court excluded testimony where a child witness curled

into a fetal position at trial and remained unresponsive

and unable to speak. Id. at 1206, 1209. Petitioner’s

observation is unremarkable and inapposite to

resolving the question presented here. Moreover, In re

N.C. drew a notable distinction between the child

witness’ unresponsiveness with the situation of a

forgetful witness, like Cosgrove, who was otherwise

17

responsive to questioning and did not lack the capacity

to offer testimony. See id. at 1216-17.

Accordingly, there is no genuine conflict among the

lower courts and no reason to think that further

guidance is necessary.

II.

THE NEW YORK COURT OF APPEALS

CORRECTLY HELD THAT THE

ADMISSION OF COSGROVE’S GRAND

JURY TESTIMONY DID NOT VIOLATE

THE CONFRONTATION CLAUSE.

Unsurprisingly, in light of the overwhelming weight

of authority on this confrontation issue, the New York

Court of Appeals ruled precisely in accord with this

Court’s precedent. This Court has long held that when

a witness appears at trial, is placed under oath,

answers questions to the best of his ability, but cannot

answer some questions due to a lack of memory, the

admission of his prior, out-of-court statements does not

run afoul of the Confrontation Clause. See, e.g., Owens,

484 U.S. at 559-60; California v. Green, 399 U.S. 149

(1970).

In California v. Green, this Court stated that

“where the declarant is not absent, but is present to

testify and to submit to cross-examination, our cases,

if anything, support the conclusion that the admission

of his out-of-court statements does not create a

confrontation problem.” 399 U.S. at 162. Notably,

Justice Harlan concurred, stating that when a witness

is available but cannot recall making the out-of-court

statement, or even the events described in the

statement, there is no confrontation issue, since “[t]he

18

prosecution has no less fulfilled its obligation simply

because a witness has a lapse of memory.” Id. at 188.

In Delaware v. Fensterer, this Court emphasized,

“the Confrontation Clause guarantees an opportunity

for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever

extent, the defense might wish.” 474 U.S. 15, 20 (1985)

(emphasis in original). This Court further held:

The Confrontation Clause includes no guarantee

that every witness called by the prosecution will

refrain from giving testimony that is marred by

forgetfulness, confusion, 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 factfinder the

reasons for giving scant weight to the witness’

testimony.

Id. at 21-22.

In United States v. Owens, 484 U.S. 554 (1988), this

Court, in a decision authored by Justice Scalia, held

that the Confrontation Clause is not violated by the

“admission of an identification statement of a witness

who is unable, because of a memory loss, to testify

concerning the basis for the identification.” Id. at 564.

In Owens, the victim had been beaten with a metal

pipe, resulting in severe memory impairment. Id. at

556. Despite his injuries, the victim identified the

defendant as his assailant when interviewed by

investigators several weeks after the assault. Id. At

19

trial, the victim remembered identifying the defendant

as his assailant during his interview with

investigators, but he could not remember the attack,

thus limiting the defendant’s ability to cross-examine

the victim. See id. at 556-57.

This Court found no violation of the Confrontation

Clause, “agree[ing] with the answer suggested 18 years

ago by Justice Harlan,” referring to his “scholarly

concurrence” in Green, 399 U.S. at 157-164, and

echoing Fensterer that “the Confrontation Clause

guarantees an opportunity for effective crossexamination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense

might wish.” Owens, 484 U.S. at 559. Since the witness

was present at trial and subject to unfettered crossexamination, the Confrontation Clause was not

implicated. See id. at 560.

This Court further emphasized, “We do not think

that a constitutional line drawn by the Confrontation

Clause falls between a forgetful witness’ live testimony

that he once believed this defendant to be the

perpetrator of the crime, and the introduction of the

witness’ earlier statement to that effect.” Id. at 560.

Indeed, the Court observed, “The weapons available to

impugn the witness’ statement when memory loss is

asserted will of course not always achieve success, but

successful cross-examination is not the constitutional

guarantee. They are, however, realistic weapons, as is

demonstrated by defense counsel’s summation in this

very case, which emphasized [the witness’] memory

loss . . .” Id. at 560. Thus, because “the traditional

protections of the oath, cross-examination, and

20

opportunity for the jury to observe the witness’

demeanor” were satisfied, there was no Confrontation

Clause violation. Id. at 560.

Finally, in Crawford v. Washington, this Court held,

in another decision written by Justice Scalia, that the

admission of an out-of-court testimonial statement by

a witness who does not appear at trial violates a

defendant’s Sixth Amendment right to confront the

witness, unless the defendant had a prior opportunity

for cross-examination. 541 U.S. 36, 53-54 (2004). This

Court reiterated that “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 Clause does not bar

admission of a statement so long as the declarant is

present at trial to defend or explain it.” Id. at 59 n.9.

Here, the New York Court of Appeals correctly

applied this Court’s precedent, as set forth in Green,

Fensterer, Owens, and Crawford, and held that

although Cosgrove lacked memory of the circumstances

surrounding petitioner’s arrest, the introduction of his

grand jury testimony at trial did not violate the

Confrontation Clause because he testified “under oath

and in the presence of the accused” (Fensterer, 474 U.S.

at 20) and was subjected to cross-examination. See App.

15a-17a.

The main thrust of petitioner’s argument is that

Cosgrove’s lack of memory of the incident rendered him

unable “to defend or explain” his prior statement, so

cross-examination was “futile” (petition, p. 14). In

making this argument, petitioner seizes onto

Crawford’s remark in footnote nine, “[t]he

21

[Confrontation] Clause does not bar admission of a

statement so long as the declarant is present at trial to

defend or explain it.” 541 U.S. at 59 n.9 (emphasis

added). Thus, petitioner contends that the footnote in

Crawford “made clear that the confrontation right

depends on a witness’s ability to ‘defend or explain’ his

prior statement” (petition, p. 21). In essence, despite

that memory lapse was not at issue in Crawford and

that Justice Scalia authored both decisions, petitioner

suggests that Crawford abrogates, sub silentio, Owens’

holding that the Confrontation Clause is not implicated

when a witness, whose memory has failed, is present at

trial and available for cross-examination.

This Court should reject petitioner’s interpretation

of Crawford, as has virtually every state court of last

resort that has addressed this issue. See, e.g., State v.

Pierre, 277 Conn. 42, 86 (2006); Smith v. State, 25 So.

2d 264, 270 (Miss. 2009); State v. Legere, 157 N.H. 746,

754-755 (2008); Woodall v. State, 336 S.W.3d 634, 644

(Tex. Crim. App. 2011); State v. Price, 146 P.3d 1183,

1191 (Wash. 2006); see also Blunt v. United States, 959

A.2d 721, 727-31 (D.C. 2008) (holding that a witness’

asserted inability to remember the events of the

charged incident or the contents of her grand jury

testimony did not deprive the defendant of his Sixth

Amendment right of confrontation).

Petitioner’s isolation of the “to defend or explain it”

language divorces it from the proper context of the rest

of the footnote. Indeed, the Supreme Court of

Minnesota in State v. Holliday, 745 N.W.2d 556 (Minn.

2008), rejected the argument that Crawford required

“the declarant [to] actually defend or explain his

22

statement” because “such interpretation both ignores

the fact that the Court’s language still focuses on

presence and ability to act without requiring that the

record show the declarant actually did defend or

explain the statement, and is at odds with the Court’s

more explicit assertion that 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.” 745 N.W.2d at

565-66 (internal citations and quotation marks

omitted). Even Goforth similarly held, “[i]mportantly,

the pertinent language does not require the record to

actually show that the defendant did in fact defend or

explain the statement. The language, rather, focuses on

‘presence and ability to act.’” 70 So. 3d at 186 (internal

citations omitted).

Succinctly stated, “[t]he rule set forth by [this

Court] in Crawford neither conflicts with nor abrogates

its earlier holding in Owens. Crawford considered the

admissibility of a prior statement made by a declarant

who was absent from trial, while Owens considered the

admissibility of a prior statement made by a declarant

testifying at trial.” Smith, 25 So. 3d at 270-71

(emphasis in original).

Petitioner claims that the New York Court of

Appeals erred, “elevat[ing] form over substance by

ignoring the fact that memory loss defeats the entire

purpose of cross-examination . . .” (petition, p. 15)

(emphasis added) and that “a declarant’s memory loss

renders cross-examination a meaningless formality”

(petition, p. 22) (emphasis added). But this complaint

ignores the central rationale of Crawford, that the

23

“Clause’s ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a

substantive guarantee. It commands, not that evidence

be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross

examination.” Crawford, 541 U.S. at 61 (emphasis

added). Thus, in Crawford, this Court maintained the

Confrontation Clause’s procedural guarantee: a

defendant must have the opportunity to cross-examine

a testifying witness. This Court, however, did not

rollback its longstanding precedent that “[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, or evasion.” Fensterer, 474 U.S. at 21-22.

Crucially, petitioner effectively cross-examined

Cosgrove, therefore, undermining his complaint. Not

only was defense counsel able to establish Cosgrove’s

poor memory from his failure to recall the incident,

which is indeed, “often a prime objective of crossexamination” (see Owens, 484 U.S. at 559), she

capitalized on his lack of memory to undermine the

testimony of his partner, Bello, in her summation:

But you then have Lieutenant Cosgrove who

remembers nothing about this incident, which by

the way is probably much more consistent with

life than Sergeant [Bello] remember[ing]. . . .

every single thing about this incident, even

though it was four years ago and he’s had several

arrests since then, he had five years at the 44[th]

Precinct and had been up and down the street

making arrests before, and before that and after

24

that, Lieutenant Cosgrove came in and he said

he didn’t remember a thing, didn’t remember a

thing. He was a lieutenant in the police force.

C.A. App. 451. Counsel’s summation, therefore,

demonstrates the fruitful employment of effective

cross-examination as a “realistic weapon.” See Owens,

484 U.S. at 560 (“The weapons available to impugn the

witness’ statement when memory loss is asserted will

of course not always achieve success . . . They are,

however, realistic weapons, as is demonstrated by

defense counsel’s summation in this very case, which

emphasized [the witness’] memory loss . . .”).

Notably, to the extent that defense counsel’s tactics

may have been limited by Cosgrove’s lack of memory

regarding the incident, she nonetheless called into

question the accuracy of the transcription of his grand

jury testimony. Drawing from an apparent

typographical error in the transcript (C.A. App. 369; see

App. 5a), counsel asked Cosgrove, “having no memory,

independent of what you are reading, you cannot tell

this jury with any certainty that every single thing you

said was written down accurately; is that correct?”

C. A. App. 372. Cosgrove had no choice but to concede,

“No, I can’t, I guess.” Id. Thus, while Cosgrove lacked

memory of the incident, “other means of impugning”

Cosgrove’s prior statement were “available,” which

counsel exploited by attacking the grand jury

transcript. See Owens, 484 U.S. at 559. At bottom,

petitioner essentially complains about the result, the

lack of complete success in cross-examining Cosgrove,

“but successful cross-examination is not the

constitutional guarantee.” Owens, 484 U.S. at 560.

25

Petitioner analogizes Cosgrove’s lack of memory

with a witness who invoked the privilege against selfincrimination and “refused to answer any questions

concerning the alleged crime” (petition, p. 18) (citing

Douglas v. Alabama, 380 U.S. 415, 416 (1965)). In

Douglas, this Court concluded that the defendant’s

“inability to cross-examine [the witness] . . . denied him

the right of cross-examination secured by the

Confrontation Clause.” Id. at 420. Therefore, petitioner

urges this Court to apply, “[t]hat same logic . . . where

the declarant has a complete failure of memory on the

witness stand” (petition, p. 18).

This argument is meritless; this Court has already

explicitly differentiated these two situations that

petitioner hopes to analogize. While Owens recognized

that “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 . . . no longer exists”

(484 U.S. at 561-62 (emphasis added)), “that effect is

not produced by the witness’ assertion of memory

loss—which . . . 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 562;

see also United States v. Torrez-Ortega, 184 F.3d 1128,

1132-34 (10th Cir. 1999) (holding witness’ refusal to

answer questions “because of his obstinate and

repeated assertion of the privilege against selfincrimination” made him not subject to crossexamination under Douglas, and rejecting “the

government’s attempt to link by analogy cases in which

a witness professes loss of memory—real or

otherwise—and cases in which a witness simply

26

refuses to testify on the basis of an assertion of

privilege”). Here, Cosgrove asserted no privilege, did

not refuse to answer questions, and as discussed, was

subjected to effective cross-examination.

Finally, petitioner’s attempts to distinguish this

case from Owens fail. First, petitioner claims that

“Owens did not involve a witness’s total memory loss”

(petition, p. 19) (emphasis in original). Second,

petitioner argues, “that because [the witness’] memory

was already impaired at the time of his prior

identification, defense counsel was able to emphasize

[the witness’] memory loss as a way to undercut his

reliability” (petition, p. 20-21).

Initially, petitioner’s delineation between “partial”

and “total memory loss” is unhelpful, as courts below

have already rejected similar confrontation challenges

addressing “genuine or feigned” memory loss. See, e.g.,

Diggs v. United States, 28 A.3d 585, 594 (D.C. 2011);

Blunt v. United States, 959 A.2d 721, 729-30 (D.C.

2008) (finding no Confrontation Clause violation in

admission at trial of witness’s grand jury testimony

even if her inability to remember the crimes at trial

was feigned). That is because this Court has already

established that the “Confrontation Clause includes no

guarantee that every witness called by the prosecution

will refrain from giving testimony that is marred by

forgetfulness, confusion, or evasion.” Owens, 484 U.S.

at 558 (quoting Fensterer, 474 U.S. at 21-22). “Thus[,]

it is settled that memory loss . . . does not deprive the

defendant of the meaningful opportunity to crossexamine that the Confrontation Clause requires,” and

a “witness’s claimed inability to recall is regarded as a

27

form of the ‘forgetfulness, confusion, or evasion’ that

cross-examination is designed to emphasize, rather

than as a barrier to cross-examination.” Diggs, 28 A.3d

at 594.

In any event, the fact that the witness in Owens

remembered having made the prior identification is of

no moment; Owens explicitly rejected such a distinction

by “agree[ing] with the answer suggested 18 years ago

by Justice Harlan,” “that a witness’ inability to ‘recall

either the underlying events that are the subject of an

extra-judicial statement or previous testimony or

recollect the circumstances under which the statement

was given, does not have Sixth Amendment

consequence.’” Id. at 558-59 (quoting Green, 399 U.S. at

188 (Harlan, J., concurring)).6

6

Additionally, in United States. v. Milton, the D.C. Circuit

squarely rejected petitioner’s argument:

The Miltons nevertheless insist that Jones’ taking the

stand and responding to defense counsel’s questions

satisfied neither the rule, nor the Sixth Amendment’s

confrontation clause, because Jones “could not remember

the events underlying her prior testimony, [ ]or the fact

that she had given it.” The idea is that if the witness

recalls his prior testimony while forgetting why he said

what he did, cross-examination is more meaningful than

if, like Jones, the witness does not even recall his earlier

testimony. We believe the Supreme Court in Owens put

this argument to rest. It is true that in Owens the witness

at least recalled having identified the defendant. But the

Court did not restrict its reasoning to such situations.

Instead, the Court “agree[d] with the answer suggested” in

“Justice Harlan’s scholarly concurrence” in California v.

Green, that “a witness’ inability to ‘recall either the

underlying events that are the subject of an extra-judicial

28

Moreover, here, as in Owens, “defense counsel was

able to emphasize [the witness’] memory loss as a way

to undercut his reliability” (see petition, pp. 20-21).

Counsel was similarly able to utilize “other means of

impugning” the prior statement by attacking the

accuracy of the grand jury transcript. Owens, 484 U.S.

at 559. Indeed, Cosgrove candidly conceded that he

could not attest to the accuracy of the grand jury

transcript. C.A. App. 372. Thus, “the traditional

protections of the oath, cross-examination, and

opportunity for the jury to observe the witness’

demeanor satisfy the constitutional requirements.”

Owens, 484 U.S. at 560. Any shortcomings in the

witness’ memory may be made known to the jury, as

was done in this case.

Furthermore, as discussed in Point I, it cannot be

said that the extent of Cosgrove’s memory loss (or as

petitioner puts it, “total memory loss”) rendered his

cross-examination constitutionally infirm. At trial,

Cosgrove was able to testify that he had been working

from 11:00 p.m. to 7:45 a.m. with his partner, Bello, on

November 2, 2008. After referring to some police

paperwork, Cosgrove was able to further testify that he

had arrested two individuals on Jerome Avenue. C.A.

App. 350-51. Cosgrove, however, could not remember

the names of the arrestees or the circumstances

surrounding the arrests. C.A. App. 351-52. But

statement or previous testimony or recollect the

circumstances under which the statement was given, does

not have Sixth Amendment consequence.’”

8 F.3d 39, 47 (D.C. Cir. 1993), cert denied, 513 U.S. 919 (1994)

(internal citations omitted; alterations in original).

29

Cosgrove testified that he appeared before the grand

jury on November 6, 2008, that the event was fresh in

his mind at that time, that he testified truthfully and

accurately before the grand jury, and that his review of

the certified grand jury transcript did not refresh his

recollection. C.A. App. 352-53.

Thus, because petitioner was able “to literally

confront [Cosgrove] who . . . provid[ed] testimony

against [him] in a face-to-face encounter before the

trier of fact,” (App. 16a) even though Cosgrove’s

memory was faulty, the New York Court of Appeals

correctly determined that “Cosgrove’s presence at trial

as a testifying witness, where he was subjected to

cross-examination before the trier of fact who must

assess the credence and weight to be accorded to his

testimony as a whole, precludes [petitioner’s]

Confrontation Clause argument.” App. 17a.7

7

Petitioner echoes the dissenters below (see App. 35a), complaining

that under this “majority rule . . . New York and many other

jurisdictions now routinely permit defendants to be convicted

based on untested evidence that is tantamount to an ex parte

affidavit” (petition, pp. 22-23). This Court should reject this

sensational contention. As highlighted by the majority below in

countering the dissent’s “dire warning” (see App. 14a, n.5),

petitioner, here, similarly ignores the fact that Cosgrove testified

and was cross-examined, that the court repeatedly instructed the

jury that the past recollection recorded merely supplemented

Cosgrove’s trial testimony (see App. 5a-7a), and that it was the

jury’s role to consider the proper weight to accord to his testimony.

See App. 6a-7a.

30

III.

THIS CASE IS A POOR VEHICLE FOR

RESOLVING THIS ISSUE.

This Court should not reward petitioner’s

gamesmanship by granting certiorari. By highlighting

that the issue has been fully preserved (see petition, p.

25) for this Court’s review, petitioner ignores the fact

that this issue was entirely manufactured. Primarily,

this issue arose out of cynical gamesmanship in that

defense counsel demanded the People to call Cosgrove

to testify. The record below makes clear that the People

had no intention of calling Cosgrove to testify at trial,

precisely because he lacked memory and had been

retired for over a year. App. 3a. Defense counsel,

however, forced the issue by seeking a missing witness

charge if the prosecutor did not call Cosgrove to testify.

App. 3a. In producing Cosgrove, as defense counsel had

demanded, the prosecutor sought to admit the retired

officer’s grand jury testimony as a past recollection

recorded. App. 3a.

Defense counsel objected, asserting the

confrontation violation, but, nonetheless, declined to

withdraw her request for a missing witness charge,

inconsistently arguing that Cosgrove’s lack of memory

rendered him unavailable for cross-examination, but

available to the People for the missing witness charge:

THE COURT: Mr. Reynolds, am I right that

the only reason you were seeking to have him

testify was because you ... don’t want a missing

witness charge?

PROSECUTOR:

Yes.

31

THE COURT: If the Court rules that it was not

giving a missing witness charge, you would

therefore not be calling him?

PROSECUTOR:

That’s correct.

THE COURT: S o

since he’s physically

available and the People would only call him to

defeat your request for a missing witness

charge, will you now withdraw your request for

a missing witness charge, which means I will

not have to rule on this application and this

issue of whether this comes in or not is gone?

COUNSEL:

I will

application because he –

THE COURT:

not

withdraw my

Very well.

COUNSEL: -- because he still stands as a

witness who if he were called would not be

favorable to the People.

C.A. App. 334-35; see App. 3a-4a. Accordingly,

petitioner’s argument that the decision below

“[e]ncourag[es] the use of grand jury testimony as part

of the prosecution’s case-in-chief” (petition, p. 24) is

especially ironic, given that the People had no intention

of using it.

Thus, the record makes clear that defense counsel

demanded Cosgrove’s testimony as part of her “heads-I

win-tails-you lose” strategy, so petitioner should not be

heard to complain about Cosgrove’s testimony now.

See, e.g., United States v. Torres, 845 F.2d 1165, 1170

(2d Cir. 1988) (“courts have been reluctant to find a

32

witness practically unavailable when it appears that

the defense has no real interest in calling the witness

to the stand, but merely is engaged in a form of

gamesmanship in an effort to obtain a missing witness

charge”).

Additionally, during the pendency of his appeal,

petitioner was removed from the United States. See

App. 7a, n.3. Although, his removal might not render

the appeal completely moot under Sibron v. New York,

392 U.S. 40 (1968), this Court should decline granting

a writ of certiorari because further review would be of

marginal value to petitioner.

IV.

THERE IS NO COMPELLING REASON TO

REVIEW THIS ISSUE NOW.

This Court has routinely denied petitions that have

raised this issue, including as recently as March 5,

2018, when this Court denied a petition for writ of

certiorari for a case from Colorado that raised similar

arguments. See State v. Leverton, 405 P.3d 402 (Colo.

App. 2017) cert. denied, No. 17SC311, 2017 WL

4391829 (Colo. Oct. 2, 2017), and cert. denied sub nom.

Leverton v. Colorado, 138 S. Ct. 1265 (2018); see, e.g.,

State v. Holliday, 745 N.W.2d 556 (Minn. 2008), cert.

denied sub nom. Holliday v. Minnesota, 555 U.S. 856

(2008).

Thus, there is no need now for this Court once again

to revisit its Confrontation Clause jurisprudence.

33

V.

ANY ERROR WAS HARMLESS.

Although the New York Court of Appeals did not

rule on whether any error regarding the admission of

Cosgrove’s grand jury testimony was harmless, the

Appellate Division correctly determined that the

testimony was cumulative to the testimony of other

witnesses, even though the Appellate Division

misattributed Cosgrove’s observation from his grand

jury testimony to Bello’s trial testimony. App. 44a.

Indeed, the New York Court of Appeals determined

that Cosgrove’s grand jury testimony “was consistent

with Bello’s trial testimony, was brief and not

particularly detailed.” App. 5a.

All that was required to convict petitioner of

attempted assault in the first degree was evidence that

he acted in concert with another to inflict serious

physical injury with a dangerous instrument.8 Thus,

the conviction did not require evidence specifically

showing that petitioner was the man who slashed the

victim or, as described by Cosgrove’s grand jury

testimony, that petitioner kicked the victim in the head

while the victim was on the ground, bleeding.

Rather, there was ample evidence that petitioner

physically assaulted the victim in the altercation that

left the victim with “multiple injuries consistent with

being cut by a dangerous instrument.” App. 2a. Bello

saw petitioner “body slam” the victim onto the street

8

Under New York law, “[t]he key to understanding accessorial

liability is that whether one is the actual perpetrator of the offense

or an accomplice is, with respect to criminal liability for the

offense, irrelevant.” People v. Rivera, 84 N.Y.2d 766, 771 (1995)

(internal citations and quotation marks omitted).

34

and then drag him between the two parked cars. App.

2a; C.A. App. 204-206. After the officers broke up the

attack, Bello observed the victim bleeding profusely

from his face and neck. App. 2a; C.A. App. 206, 219.

The victim testified, “There were two people[] who

were hitting me, and [petitioner] [wa]s one of the

persons who did that” (C.A. App. 184), and that “I did

see them hitting me, but I could not say whether it was

him or the other guy [who was the slasher].” C.A. App.

184. The victim also testified that his assailants “were

kicking me everywhere” and “[t]hey were hitting me in

the head and other places . . .” C.A. App. 73, 91, 166.

Tellingly, the People did not even seek to call to

Cosgrove but for defense counsel’s application for the

missing witness charge. Thus, Cosgrove’s testimony

added little to the evidence that had already been

presented at trial and any error in its admission was

harmless.

35

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

DARCEL D. CLARK

District Attorney

Bronx County

NANCY D. KILLIAN

Appeals Bureau, Chief

JAMES J. WEN

Assistant District Attorney

Counsel of Record

Office of the District Attorney

Bronx County

198 East 161st Street

Bronx, New York 10451

(718) 838-6669

wenj@bronxda.nyc.gov

Counsel for Respondent