Criminal Law's Cool - Deep Dive #2 - Case of Credibility on Appeal

Why it is Hard for Defendants to Win Suppression Hearings, Reason 5280 - Credibility is Nearly Impossible to Appeal

Today's Case: People v. Jose Fuertes, decided by The Appellate Division, Second Department, on March 28, 2018

Today's Topic: Arguing about Credibility of Witnesses on Appeal

Today's case is from nearby Nassau County and involves the Nassau District Attorney's Office, which is now run by District Attorney Madeline Singhas, a former Queens Assistant District Attorney against whom your author tried her very first jury trial many years ago.  It was my second trial, and I would love to say that my "greater experience" led me to victory, but alas it wasn't to be.  Fair and square and with professionalism that no doubt helped her to ascend so high and so fast, Ms. Singhas won.   But the case at hand today, People v. Fuertes, is, as criminal cases on appeal go, short, quite a common sort of a case to read, and at first glance perhaps unremarkable.  But this case carries an important and often repeated message, especially for defendants hoping to be successful at pretrial suppression hearings. 

The Facts

We actually are told little of the facts of the case.  Mr. Fuertes was convicted of robbery in the first degree, burglary in the first degree and other related charges on July 15, 2014.  After conducting pretrial hearings, Mr. Fuertes, it seems took a plea.  The opinion by the Court does not mention what the sentence in this plea bargain was, but given that we are talking about Nassau County, where the general sense is that sentences are very tough, and also given the very serious nature of the charges (B violent felonies carrying sentences of up to 25 years), the odds are that Mr. Fuertes received a long sentence, even though it was a plea bargain.

Since there was no trial, that severely limits the possibilities for appeal, because most appeals are complaints that something was wrong with a trial.  Also, it is a quite common practice for Judges and the prosecutor offices to require defendants who take pleas to waive their rights to appeal as part of the deal.  Believe it or not, this is entirely legal, but the appellate courts have been known to overlook these waivers in certain circumstances.  It is not clear from the opinion whether the the Court required the defendant to waive the right to appeal or not as part of the deal.  Typically it would be done, at least in NYC, but sometimes, in order to give the appearance of "sweetening the deal" for the defendant, a Judge will offer not to require the waiver of the right to appeal to give the defendant the ability to take a crack at the appeal process.  Judges know that to defendants, who often have a hugely inflated notion of the likelihood of success on appeal, the right to make the appeal will seem like a big deal and make them willing to take a plea.  The reality, however, is that allowing a defendant the right to make an appeal on a case involving a plea bargain is like allowing the defendant the right to make an application to become an astronaut.

Appeal of a Suppression Hearing

So in this case, Mr. Fuertes appealed the suppression hearings.  It seems that Mr. Fuertes' lawyer filed some standard motions in the case to suppress (that is, to exclude) certain evidence from the trial on the grounds that the evidence was obtained in violation of the Constitution.  In Mr. Fuertes' case, his lawyer argued that certain statements that Mr. Fuertes made after he was arrested were obtained illegally (as in without Miranda warnings, for example), and that certain property, described only by the Court as "physical evidence" was obtained illegally.  Typically, this physical evidence would be items recovered from Mr. Fuertes' person when he was arrested or recovered from places where Mr. Fuertes had some sort of expectation of privacy - like his car or his house.  (If the Government wanted to use these items at a trial, they were probably allegedly proceeds of the robbery, or a weapon used in the robbery.)  

Arguments about statements trigger Fifth Amendment considerations of due process in how the police convinced Mr. Fuertes to say what he said.  These arguments typically relate to whether or not the police read Mr. Fuertes his Miranda warnings or when they read those warnings.  Typical points of debate in these hearings are whether or not the accused simply blurted things out to the police on his own, although sometimes there is debate about whether the required warnings were read at the appropriate time or at all.  In these situations, the police will say that they did read the warnings, and the defendant will say that they did not, or that they did, but only AFTER the police convinced the defendant to "cooperate".  In this context, the police like to use the word cooperate, but what it really means is "make incriminating statements that will further justify our arresting you."

Arguments about the way in which property is recovered relate to the Fourth Amendment and involve an investigation into what the police knew and why they invaded some area that under most circumstances we would imagine would be free from Government inspection.  In these search issues, the arguments often surround small observations and fine points about the facts and circumstances.  Classic points of debate between the defense and Government witnesses include whether the defendant's vehicle really crossed a double yellow line, or whether the defendant really failed to stop at a stop sign.  These are both circumstances where a police officer would then have the justification to intrude a little bit into a person's privacy by requiring that they stop.  At these "routine traffic stops" things can often escalate as the police make further and more incriminating observations about other possible crimes.

In this case, Mr. Fuertes' lawyer had obtained hearings as to both statements and physical evidence.  The opinion in the case provides no detail about these hearings other than that the trial court, after hearing all of the evidence and argument of the lawyers, denied Mr. Fuertes' claims as to both the fifth and fourth amendment issues.

Mr. Fuertes, now faced with going to trial with all sorts of no doubt very damaging evidence, decided to take a plea.  But he was left with the right to appeal.

The Basis for the Appeal - Credibility - Uh Oh

On appeal, Mr. Fuertes argued that the trial level Judge decided the pretrial suppression hearings wrongly because the trial level Judge found that the police officers who testified were "credible" which means believable.  Whenever any witness testifies, the person or people who have to decide the case have to decide whether any witness should be believed.  Simply saying something does not automatically spring it into being.  If a witness testifies that he observed a winged unicorn fly around and land at the scene of the crime, for example, that would be good evidence that the witness is not believable (credible).  Therefore, at a certain level, credibility is an issue every time a witness testifies at any proceeding anywhere.  

Therefore, if a trial level judge makes a determination about whether or not to believe a witness, that is a decision that is at least in theory subject to appeal.  It certainly could be that a trial level judge could make a mistake.  And that is what appeal is all about, right?  

Sort of.

While you have a right to appeal issues of credibility, our courts have taken a very particular approach as to how judges on appeal are required to review issues of credibility.  And this does not bode well for Mr. Fuertes' chances of success on appeal.  You see, our courts have long since decided that, as credibility goes, that is something that is so much dependent on being there, on being able to see and hear the witness in person, and not simply on the words the witness says, that determinations of credibility are given "great deference" on appeal.  Appeals judges are sensitive to the notion that a cold written transcript of a hearing is no good substitute for actually having been there.

And the way this idea has played out in the real world over time is...well...kind of what happened here in Mr. Fuertes' case.

Appeal denied.

"Contrary to his contention, the court properly credited this testimony."

This is not some unique, outlier opinion.  This is a drumbeat that comes regularly from our appeals courts.  It is an exceedingly rare thing for an appeals court to overturn a trial level court's decision on the grounds that the trial level court should have made a different decision about whether or not to believe a witness.  This case, Mr. Fuertes' case is like a thousand others that came before it, and a thousand more that will come after it.  This is the reality.

The Lesson

The lesson to be learned is that if you want to win a pretrial suppression hearing in a criminal case, and your case depends on a credibility argument directed at one or more witnesses, you better be able to win that argument at the hearing.  You won't likely win it on appeal. 

If two witnesses testify to different things, simply by declaring one witness credible and the other witness not credible, the trial level judge has all but cemented the case forever and nearly completely insulated the result from appeal (on this point).  In the rare cases where suppression issues come back on appeal, they will come back most typically not on assessments of credibility, but on evaluations of the significance of facts that everyone agrees upon. 

In other words, suppose that testimony "The car was stopped at the light." was critical to the case.  If the argument on appeal was that the trial judge should have believed a different witness who said, "the car was approaching the light" that appeal is almost certainly doomed, as long as the trial judge said that she found the first witness credible. 

On the other hand, if everyone agrees that the evidence was that the car was stopped at the light, and the trial judge held that this fact meant that the law required a particular result, an appeal might be successful if a compelling legal argument can be made that the trial judge was wrong about the law.

Legal arguments on appeal, however rarely won for defendants, are possible.  Success on appeal where the issue is credibility of a witness, on the other hand, are next to impossible.  The case of Jose Fuertes is but one of countless examples.

By Don Murray, Esq.

Don Murray is a 27 year veteran New York City criminal lawyer and founding partner of the New York City Criminal Law Firm Shalley and Murray.  He can be reached by text or phone at 718-268-2171.