The Court conducted a preliminary hearing in this case, under C.P.L. 180.60, on February 3, 2021. At that hearing, the People called one witness, a civilian eyewitness to whom the defendant was a stranger. By agreement of the parties, the defendant was present but not visible during the witness’s testimony.1 At a preliminary hearing, the People are required to prove by competent evidence two things: that there is reasonable cause to believe a felony was committed, and that there is reasonable cause to believe that it was the defendant who committed that felony. C.P.L. 180.70. Here, the People sought to establish the defendant’s identity as the perpetrator by eliciting the defendant’s name from the eyewitness. Defense counsel objected to the testimony as hearsay, and the Court requested an offer of proof from the People for the basis of the eyewitness’s knowledge of the defendant’s name. The People responded candidly that the eyewitness had learned the defendant’s name from the subpoena that the Kings County District Attorney’s Office had served on the eyewitness. The People thus sought to prove that the defendant was the person who committed the charged offense, not through independent proof, but based solely on the People’s accusation. The Court ruled that the proffered testimony would constitute inadmissible hearsay and sustained the defendant’s objection. At the hearing, the People argued that the proposed identification testimony is admissible under the holding in People v. O’Connor, 245 AD2d 573 (2d Dept. 1997). In O’Connor, the court reviewed the dismissal of an attempted robbery indictment, based on the trial court’s ruling that identification of the defendant as the perpetrator of the crime rested on the victim’s testimony that he “subsequently learned” the defendant’s name. Id. The Second Department held that the identification testimony was not inadmissible hearsay warranting dismissal of the indictment. Id. While the O’Connor decision itself does not more fully develop the facts of the case, of greater importance is that the identification testimony in O’Connor was elicited under different circumstances, and consequently was reviewed under a different standard, than the proposed testimony here. Both matter. O’Connor addressed testimony elicited in a grand jury presentation. The relevant dynamics of a grand jury are set forth in C.P.L.190.25(3), which does not permit a defendant and his attorney to be present when other witnesses testify. Since a defense attorney is not present to object to questions asked of those witnesses, no explicit ruling on admissibility is made when the prosecutor poses questions and the witnesses answer them. Moreover, it would be impractical for the prosecutor to preface each question by asking the witnesses their basis for knowing each answer. To do so would unnecessarily prolong the presentation without purpose. In contrast, a preliminary hearing is an adversarial proceeding. The defendant has a right to be present. C.P.L. 180.60(3). Each witness is subject to cross examination. C.P.L. 180.60(4). Under those circumstances, defense attorneys will naturally raise objections to testimony they believe violates a rule of evidence. The court must rule on those objections, which sometimes requires requesting an offer of proof to determine admissibility. Thus, at a preliminary hearing a record can be made about the admissibility of a piece of evidence that may never be made in a grand jury proceeding. In O’Connor, the court ruled that the identification testimony was “not inadmissible” based on the record before the court. 245 AD2d 573. Equally important, the issue in O’Connor came to the court on a motion to dismiss the indictment on the ground that the evidence before the grand jury was legally insufficient to establish the offense charged. That means that the court’s standard of review was whether the evidence was “legally sufficient” under C.P.L. 70.10(1), a standard which is met when the evidence, if true, establishes every element of the offense and the defendant’s commission of it. In contrast, at a preliminary hearing this court must determine whether the evidence provides “reasonable cause to believe that a person has committed an offense,” a standard that is met when evidence which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. C.P.L. 70.10(2). The difference in the two standards is not merely semantic. “Reasonable cause” requires a determination of the facts, while “legally sufficient” requires an acceptance of the facts as true. See, e.g., People v. Batashure, 75 NY2d 306 (1990); People v. Pino, 162 AD3d 910 (2d Dept. 2018). As noted above, in O’Connor, there was no objection to the admission of the testimony of identity, because it was offered in an ex parte proceeding, the grand jury. Nor did the factual record in O’Connor establish that the witness’s knowledge of the defendant’s identity was based entirely, in part, or not at all on hearsay. The O’Connor Court, in order to perform its function to determine legal sufficiency, was bound to accept the facts established before the grand jury as admissible and true. Here, the court’s function is to determine reasonable cause, and to make that determination considering the defendant’s challenges to the evidence. The court, and not the prosecutor, as the judge of the law, determines admissibility; and the court, and not the grand jury, as the judge of the facts, determines whether the evidence rises to the level of reasonable cause. Therefore, this case is distinguishable from O’Connor, both in its procedural posture and in the function this court must perform. Since preliminary hearings are a less frequently used procedure, particularly in this part of the State, it is not surprising that little has been written about these differences. The O’Connor rule most certainly applies to cases in which the sufficiency of the grand jury evidence is at issue, and an examination of its underpinnings emphasizes its validity without undermining its impact on this case. O’Connor relied on two earlier cases, People v. Brownlee, 121 AD2d 553 (2d Dept. 1986) and People v. Brewster, 63 NY2d 419 (1984). The court in Brownlee allowed the prosecutor’s use of leading questions to adduce necessary testimony that established the defendant’s identity, and observed that the use of leading questions does not render evidence elicited by such questions incompetent. 121 AD2d at 554. Brownlee did not hold that a witness could testify to otherwise inadmissible hearsay in order to establish a defendant’s identity, and it does not establish a rule allowing the admission of such hearsay. Because Brownlee did not address the hearsay issue, it seems clear that O’Connor’s reliance on its holding is simply an acceptance of the incidental fact that the permitted leading questions elicited evidence of identity. It does not mean that the O’Connor Court condoned the receipt of inadmissible hearsay. In Brewster, two eyewitnesses separately testified before the Grand Jury and each identified the defendants. At a later Wade hearing, the same witnesses testified, and it became “clear that the identification each testified to before the Grand Jury was made from photographs and identified the photograph from which the identification had been made.” Id. at 422. The decision in Brewster primarily focused on the question of the admissibility of a prior photographic identification under C.P.L. 60.30. The Brewster Court briefly addressed the potential hearsay issue, and held that “the identification testimony before the Grand Jury was not hearsay, for the Grand Juryheard no evidence concerning how or when the identification was made. The Grand Jury was told only that each complaining witness had identified a defendant as her assailant. That was a present statement of the fact that she recalled that the person who assaulted her was the particular defendant.” Id. at 422-23. Brewster, of course, also involved a Grand Jury presentation, which is not an adversarial proceeding, one where defense counsel is not present, and unable to register any objections during the proceeding. Relying on O’Connor, the First Department addressed the same issue in People v. Cedeno, 252 AD2d 307 (1st Dept. 1999). In Cedeno, three witnesses testified before the Grand Jury that they had learned the name of the defendant subsequent to the incident. The trial court dismissed the indictment, holding that “the Grand Jury presentation was devoid of any evidence linking defendant to the incident.” 252 AD2d at 309. In reinstating the indictment, the First Department found that the “three eyewitnesses’ references to defendant, by name, being one of the perpetrators constitute legally sufficient evidence, and establish reasonable cause to believe, that it was he who committed the crimes charged.” 252 AD2d at 310. Like O’Connor, Cedeno involved the legal sufficiency of the evidence before a Grand Jury, and not whether any of that evidence constituted impermissible hearsay. Since none of the witnesses in Cedeno appears to have testified to the basis of his knowledge of the defendant’s name, the court accepted the witnesses’ testimony as legally sufficient. Id. While the Cedeno Court stated “it can be readily inferred that [the witnesses] learned of [the defendant's name] as a result of the police officer’s investigation and apprehension of defendant at the scene,” id., the court did not speculate whether the witnesses had a nonhearsay basis for learning that information, such as overhearing the defendant give his name to the police officers during the apprehension. This is not surprising, because the court’s purpose was to determine legal sufficiency. The decision cannot be read as an authorization for admitting hearsay testimony. An example of the application of the First and Second Department rule arose in People v. David, 22 Misc 3d 1129(A) (Sup. Ct. Kings Co. 2008). In David, three witnesses testified before the Grand Jury and identified the defendant as the individual who had committed the assault. Two of the witnesses had previously identified the defendant in a corporeal line-up. The third witness testified that he “later learned” the defendant’s name, but did not testify to the basis for having learned that information. The Court in David held: “How [the witness] learned the name of his attacker is irrelevant. Even if he did learn it from another party who either observed the attack or was present at the identification of defendant, such testimony, although hearsay, is not impermissible.” 22 Misc 3d 1129(A), 1129(A). The David Court relied on Cedeno, for the proposition that “a victim’s statement that he subsequently learned the defendant’s name does not constitute inadmissible hearsay.” 252 AD2d at 310 (citing People v. O’Connor, 245 AD2d 573 (2d Dept. 1997). It is important to recognize the fact that an eyewitness “subsequently learned” the defendant’s name is not necessarily hearsay testimony; nor is it necessarily hearsay for a witness to testify to the information he subsequently learned. For example, as noted above, a witness could learn the defendant’s name from the defendant himself, perhaps while observing the defendant’s apprehension and arrest; such a statement would be admissible as the statement of a party opponent (see People v. Caban, 5 NY3d 143, 151 fn 1 (2005); Reed v. McCord, 160 NY 330, 341 (1899)). Alternatively, a witness could learn the defendant’s name from a statement that qualified as admissible under a different hearsay exception; or a witness could learn the defendant’s name from a certified business or public record, C.P.L.R. 4518, 4520. O’Connor, Cedeno, and Brewster all accepted the proffered testimony without looking behind the statement to ascertain whether there was a non-hearsay basis of knowledge. As the Cedeno Court stated explicitly, and the other courts recognized, they were not called upon to rule on reasonable cause. Rather those courts, in ruling on legal sufficiency, were required to accept the evidence before the respective grand juries as true. In reinstating the indictment in Cedeno, supra, the First Department relied in part on People v. Jennings, 69 NY2d 103, 115 (1986). The Jennings Court held: “On a motion to dismiss an indictment under C.P.L. 210.20(1)(b), the inquiry of the reviewing court is limited to the legal sufficiency of the evidence; the court may not examine the adequacy of the proof to establish reasonable cause, since that inquiry is exclusively the province of the grand jury.” 69 NY2d at 115. The Court continued, “In determining whether the People have [met their burden of legally sufficient evidence], all questions as to the quality or weight of the proof should be deferred.” Id. (citing People v. Sabella, 35 NY2d 158, 167 (1974)). See also People v. Cole, 97 AD2d 886 (3d Dept. 1983). The Second Department in O’Connor, supra, implicitly did exactly the same thing. The lesson to be drawn from these cases is that in reviewing an indictment, the court should not overturn the factual determination made by a Grand Jury unless the evidence before the Grand Jury was not legally sufficient. Where the transcript does not contain any obvious hearsay testimony, it is inappropriate for the court to speculate whether a witness was testifying based on his personal knowledge. The court can only review the record before it; for matters outside the record, the court must rely on the prosecutor to ensure that evidence is admissible in the first instance. In that role, the People must be diligent to guarantee that evidence of an element of the charge or of the identification of the defendant as the perpetrator is admissible evidence. The People serve a dual function in the grand jury, as both the prosecuting authority and the legal adviser to the grand jury, and so have a heightened obligation to ensure that the evidence they present to the grand jury is competent. When the record before the reviewing court does not establish that the evidence was inadmissible, the court will assume that it was. However, when the court presides over a preliminary hearing, it sits as both the gatekeeper of what evidence may be admitted as well as the factfinder. When an objection is made to the admission of evidence at a preliminary hearing, the court must determine which evidence it is able to consider, and then make the determination whether reasonable cause exists based on that evidence. In this case, the Court finds that a witness testifying to hearsay information provided to him by the District Attorney’s Office about the defendant that Office is prosecuting does not constitute competent evidence that the court can consider as the trier of fact. Therefore, the objection to that testimony is sustained. The foregoing constitutes the Decision and Order of this Court. Dated: February 23, 2021
