Panel Orders New Trial After Restriction On Cross Examination

Panel Orders New Trial After Restriction On Cross Examination

New York Law Journal
Volume 252—No. 39 Tuesday, August 26, 2014

Panel Orders New Trial After Restriction on Cross Examination

David J. Cohen

A TRIAL judge violated a defendant’s right of confrontation by curtailing cross-examination of his alleged accomplice, who had testified for the prosecution, a unanimous Manhattan appellate panel has ruled.

Neal McLeod was convicted of several crimes related to a June 2009 robbery of an off-duty police officer. At his January 2012 trial, McLeod testified he had been driving around Manhattan with four friends to meet girls and did not know his friends were planning a robbery. The alleged accomplice, called M. in the decision, testified that McLeod was planning to be the getaway driver. M. said he ripped a gold chain from the officer’s neck and ran away. McLeod, meanwhile, saw that the officer was holding another of their friends at gunpoint and used a crowbar to disarm him.

Prior to the trial, M. struck a deal with the Manhattan District Attorney’s Office to testify against McLeod. At trial, the defendant’s attorney, David Cohen, a partner with Cohen Forman Barone, sought to question M. on the stand about uncharged robberies he had admitted, his criminal record and the deal he struck with the prosecution. M.’s attorney said his client planned to invoke his Fifth Amendment right against self-incrimination.

Acting Manhattan Supreme Court Justice Maxwell Wiley curtailed the proposed line of questioning. He reasoned that the issues were collateral, and that the jurors would be misled and the prosecution prejudiced if M. invoked the Fifth Amendment in front of them, because they would not learn M. had implicated McLeod in some of the uncharged robberies.

The jury found McLeod guilty on one count of first degree robbery, two counts of second degree robbery, first degree attempted assault and second degree assault. Wiley sentenced him to five years in prison. (He had been out on bail for three years between his arrest and trial.) McLeod appealed.

In a decision in People v. McLeod, 12201, the Appellate Division, First Department, panel said Wiley “improvidently exercised [his] discretion” by allowing M. to avoid invoking his Fifth Amendment at trial because “the probative value of the questions, targeted at the witness’s credibility, bias, and motive to fabricate testimony, was not outweighed by any purported prejudice against the People.”

The panel pointed out that M.’s trial testimony was the only evidence that suggested McLeod’s intent to participate in the robbery.

Thus, it concluded that McLeod was “unduly restricted” from exercising his New York and U.S. constitutional rights to cross-examine a witness against him.

Further, the error was not harmless because it “may have reasonably contributed to the defendant’s conviction.”

The panel reversed McLeod’s conviction and ordered a new trial. First Department Justice Rolando

Acosta wrote the opinion, joined by Justices Luis Gonzalez, David Saxe, Rosalyn Richter and Sallie Manzanet-Daniels.

“We were very pleased with the decision,” said Claudia Trupp, an attorney with the Center for Appellate Litigation who represented the defendant in his appeal.

“This was my client’s first felony conviction so we were very gratified by the result,” she said.

Manhattan Assistant District Attorneys Beth Fisch Cohen and Eleanor Ostrow represented the prosecution. They were not available for comment.

By: Tania Karas

Tania Karas can be reached at

Twitter: @taniakaras

Justice Acosta

Reprinted with permission from the August 26, 2014 edition of the NEW YORK LAW JOURNAL © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact (212) 577-9314 or # 070-08-15-34


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