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Supreme Court, New York County, New York.

The PEOPLE of the State of New York v. Ashley WILLIAMS, Defendant.


Decided: October 10, 2019

The defendant is charged with assault in the second degree. At a pre-trial conference the People informed the defendant and the Court that one of the witnesses to the alleged crime did not enter this country legally. The People revealed that they believed he was still not in this country lawfully.

In response, the defense counsel stated on the record that he intended to vigorously cross examine the witness on this point, noting by his behavior he “has demonstrated a willingness to not only enter the country illegally [and thereby] commit a crime, but every day he remains in this country is a separate crime and a continuing crime.” Further, in a burst of law enforcement fervor, the defense counsel also announced he intended to alert Immigration and Customs Enforcement (ICE) authorities to the witness's presence and hoped that by so doing, “ICE will be waiting for him on Friday, once he comes off the witness stand.” Accordingly, both parties agreed it would be prudent to appoint an attorney to represent the witness. The People note, however, that the witness has led a law-abiding life while in the United States and that they viewed defense counsel's plan to alert ICE as a thinly veiled threat “designed to potentially have ․ [the witness] not want to come in to court and testify in this particular case.”

Dual public policy interests are at issue here; the defendant's right to confront witnesses against him and the ability of the prosecution to protect the community by encouraging witnesses to a crime to cooperate with law enforcement. This Court cannot stand in the way of an attorney who chooses to report the presence of an undocumented immigrant to federal authorities. Nonetheless, the defense counsel's public announcement of his intent to do so could be viewed as an effort to discourage a witness against his client from coming forward and the Court shares the prosecution's concern about it.

Regarding the substance of the defense lawyer's announced intention, he is reminded that the official policy of the New York State Office of Court Administration is that ICE cannot take custody of a person within the courthouse absent a judicial warrant. Of course, what ICE agents choose to do outside the courthouse is their business.

As to cross-examining the witness, the only legitimate purpose for questioning him about his immigration status would be to show that it bears on his credibility. A trial court enjoys wide discretion to limit cross examination (People v. Anderson, 137 A.D.3d 601, 27 N.Y.S.3d 49 [1st Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016]). In Anderson, the defendant sought to question a crime victim regarding his immigration status. The court held: “There is no reason to believe that the victim's immigration status gave him a motive to fabricate his accusation” (id. at 601, 27 N.Y.S.3d 49). Here, the person the defense seeks to impeach with this line of questioning is not the victim, which would mean he would have less motive to fabricate.

The New Jersey Supreme Court recently determined that questioning a defendant about his immigration status while cross examining him was, under the circumstances of that case, reversible error (State v. Sanchez-Medina, 231 N.J. 452, 176 A.3d 788 [2018]). Relevant here, the New Jersey court noted: “In limited circumstances, proof of a person's immigration status can be admissible. If the prosecution, for example, promised a witness favorable immigration treatment in exchange for truthful testimony, a jury would be entitled to assess the witness's credibility in light of that promise. Or if a defendant had lied about his immigration status to obtain government benefits as part of a scheme to defraud, his true status would be relevant to the crime charged. Still, exceptions like those are rare. In most instances, the immigration status of a witness or party is simply irrelevant, and a jury should not learn about it” (id. at 463, 176 A.3d 788).

When faced with a similar situation nearly 20 years ago in People v. Gonzalez, 193 Misc. 2d 17, 748 N.Y.S.2d 233 [2002], a Bronx Supreme Court justice declined to follow the People's request — on public policy grounds — to preclude a defendant from questioning a witness on the subject of his immigration status. The court's rationale was that “the very nature” of entering the country illegally was fraudulent and any public policy considerations were best left to the state legislature (id. at 18-19, 748 N.Y.S.2d 233).

With due respect to the Bronx Supreme Court, this Court disagrees. Much has changed over the years in the immigration landscape; with the removal of illegal immigrants from the United States more of a federal government priority now than in the past. Sound public policies exist to bar this as an avenue of cross examination for both parties. If defendants knew they could be subject to questions about their immigration status, it might keep them from exercising their constitutional right to testify on their own behalf. If witnesses know they could face the same questions they might be discouraged from reporting crime to law enforcement, thus endangering their own safety and hindering the prosecution in its ability to keep the population safe.

An attorney will be appointed for the witness. Certainly, if there is evidence the witness has knowingly made false statements to obtain government benefits, assumed a false identity while in the country or committed any other transgression that goes directly to credibility (and if the People are aware of such facts, they must disclose them to the defense), then the defense will be permitted to inquire of the witness about such incidents. Counsel for the witness can then advise the client of the ramifications of a response. Otherwise, this line of questioning will not be permitted.

This constitutes the Decision and Order of the Court.

Diane Kiesel, J.

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