Second Department Reverses Attempted Murder Conviction
Appellant Erick Tavarez was charged with attempted murder and other offenses in connection with a stabbing in Brooklyn. Three friends - Rivera, Torres, and Schwoerer – were walking one night when Rivera was jumped by a Hispanic man in a waist-length jacket and a few other men. The man in the waist-length jacket ultimately held Rivera down while another man stabbed him numerous times. The man in the waist-length jacket picked up Rivera’s brand-new red New Jersey Devils hat and ran away with it. Appellant was apprehended minutes later, wearing a waist-length jacket and a new Devils hat.
A detective testified that he drove Torres to the spot where appellant had been stopped and asked Torres if he recognized anyone. The detective further testified that Torres responded “instantaneously” and that appellant was arrested immediately thereafter. Neither Rivera nor Schwoerer identified appellant in court. A few days after the detective’s testimony about the show-up, the prosecutor announced that Torres, who had been expected to testify at trial, could not be located and would not, in fact, testify.
The Appellate Division, Second Department, reversed the conviction because of the Confrontation Clause violation that resulted when Torres failed to testify. The Court explained, “Although neither side can be faulted for the introduction of the arresting officers’ testimony at a time when everyone believed in good faith that Torres would testify, once it became clear that Torres would not be produced as a witness, the arresting officers’ testimonial hearsay regarding the information conveyed to them by Torres violated the defendant’s constitutional right to confront the witnesses against him.” A new trial was ordered.
John Latella, then a Staff Attorney at Appellate Advocates, briefed the case, and Kendra Hutchinson argued it in the Second Department.