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Issues In NY Criminal Law--Vol. 4, #10©

Issue: Use of a stipulation in criminal cases

A stipulation -- sometimes called a judicial admission -- is "an agreement, admission or concession made in a judicial proceeding by the parties thereto or their attorneys, in respect of some matter incident to the proceeding, for the purpose, ordinarily, of avoiding delay, trouble, and expense." People v White, 73 NY2d 468, 476, 541 NYS2d 749 (1989).

Among the matters subject to stipulations are witness credentials; the business record or other foundation for introduction of documents; distance; and the accuracy of a transcript. Handling a Criminal Case in New York, § 18:268 (2001-2002 edition). As discussed below, an element of the crime can also be stipulated to. When entering into a stipulation, counsel should be mindful of the formal, though simple, requisites for it to be binding. See CPLR 2104. Another thing to keep in mind is the possibility of the stipulation being used at a later time, such as retrial; if counsel wishes to limit the agreement to a particular hearing or trial, the stipulation should be so conditioned. People v Aratico, 111 Misc2d 1015, 445 NYS2d 951 (Sup Ct 1981); Handling § 23:120.

One reason to stipulate may be to avoid certain evidence being introduced that might have greater prejudicial effect. Thus, in a felony DWI or weapons case, defense counsel may "stipulate," so to speak, that the defendant was convicted of an enhancing prior. See CPL 200.60. Better that than a parade of unfavorable witnesses called by the prosecutor. Upon a concession by a defendant or counsel, an element of the crime may be omitted from the jury charge. See People v Lewis, 64 NY2d 1031, 489 NYS2d 57 (1985). Where a defendant was charged with Aggravated unlicensed operation of a vehicle, the parties stipulated that, if the defendant were convicted of DWI or DWAI, the trial judge would enter a conviction on the count charging AUO. People v Tatro, 245 AD2d 1040, 667 NYS2d 560 (4th Dept 1997); People v Donhauser, 255 AD2d 1040, 683 NYS2d 357 (4th Dept 1998); People v Swan, 277 AD2d 1033, 716 NYS2d 194 (4th Dept 2000).

Stipulating to a proposed expert witness's qualifications may be a better tack, rather than allowing opposing counsel to build up that witness. The jury might otherwise be more impressed by the witness's credentials than the subject matter testified to. There are other occasions where a stipulation can avoid overly prejudicial evidence. Consider, for example, where the main issue is identification. The prosecution has Molineux-type evidence to prove intent, an issue less important to the defense. Defense counsel could offer to concede the issue of intent if the jury finds against the defendant on the ID issue. People v Pelose, 116 Misc2d 788, 456 NY2d 619 (Sup Ct 1982). The jury, with its concern for finding out the truth, may be irritated by objections on seemingly technical and picayune issues. Counsel may be perceived as obstructing the jury's function, rather than facilitating. A willingness to concede on small matters can avoid this perception and convey the opposite.

Before trial, particularly in the plea-bargaining stage, stipulations may be useful. For example, in a homicide case the prosecutor agreed to recommend dismissal of the charge if the defendant passed a polygraph test, which the defendant did. The court held the stipulation enforceable. People v Prado, 81 Misc2d 710, 365 NYS2d 943 (Sup Ct 1975). Handling § 18:275. In People v Guerrero, certain facts were stipulated to before trial. The prosecutor's eliciting of contrary trial testimony resulted in a mistrial. 111 AD2d 350, 489 NYS2d 541 (2d Dept 1985), reversed on other grounds 69 NY2d 628, 511 NYS2d 226 (1986). But in People v Smith, the defense was deemed to have waived the stipulated secrecy of a statement where it was a defense witness who testified about it. 59 NY2d 156, 464 NYS2d 399 (1983). In People v Cefaro, the prosecutor who had consented to suppress tangible evidence was relieved of the stipulation when it had been based on an erroneous legal assumption: "If the District Attorney erred in consenting . . ., he should be permitted to withdraw that consent and rectify his error. The administration of the criminal law is not a game of wits nor is it a chess game where a move, once taken, may not be corrected even though the position of the other side has not been changed or prejudiced." 45 Misc2d 990, 991-992, 258 NYS2d 289 (Sup Ct 1965), affd 28 AD2d 694, 283 NYS2d 371 (2d Dept 1967), affd 21 NY2d 252, 287 NYS2d 371 (1967). But in People v Davis, 94 AD2d 610, 462 NYS2d 7 (1st Dept 1983), where no mistake of law or fact was present, the prosecution was dealt with more severely. The defendant told the grand jury that he had passed a lie detector test. After application to a judge, an agreement was made that the prosecutor's office would administer a lie detector test. Thereafter, higher-ups in the prosecutor's office refused to honor the agreement. After indictment, the charge was dismissed on speedy trial grounds. On appeal, over strong dissent, the First Department held that the agreement should have been honored, and dismissed the indictment in the interest of justice. In People v Gonzalez, where affidavits were stipulated into evidence, the affiant later admitted committing perjury. The trial court acted properly in refusing to allow the affidavits into evidence. 115 AD2d 899, 496 NYS2d 796 (3d Dept 1985). Obviously, the precise wording of a stipulation is extremely important and its scope should be understood by all. A written stipulation may be appropriate. See Handling § 18:485.

Even with a formal stipulation, problems may arise as to the extent of the concession. In People v Hall, 56 NY2d 547, 449 NYS2d 960 (1982), the trial judge refused to charge down from Assault 2nd to Assault 3rd where the defendant had conceded that the victim suffered serious physical injury. The conviction was reversed on appeal, though, as there was no concession that the defendant had intended to cause serious physical injury. Similarly, in People v Fwilo, the defendant stipulated that a weapons expert, if called, would testify that the gun was tested and found to be operable. The stipulation did not concede that the expert's conclusions were accurate or that the gun actually was operable. The First Department held that the trial judge should have instructed the jury on the still-open issue of operability. 47 AD2d 727, 365 NYS2d 194 (1st Dept 1975). Counsel may also stipulate to matters of procedure, such as agreeing that a bench trial be held and the judge's determination on retrial be made on the record of a prior trial. People v Bishop, 46 Misc2d 213, 258 NYS2d 950 (Sup Ct 1965). A bench trial may be initially conducted on stipulated facts and evidence. See People v Williams, 161 AD2d 295, 555 NYS2d 69 (1st Dept 1990). This may avoid problems of appealability of an issue that would otherwise be lost if the defendant pleaded guilty. Thus, where a meritorious speedy trial issue would be waived upon a guilty plea, the parties can conduct a bench trial on stipulated facts and, after conviction, the defense can raise the speedy trial issue on appeal. This avoids the problem of a so-called "conditional plea." Handling § 17:94. When dealing with stipulations, keep the jury in mind: If the stipulation is entered into while the jury is not in court, it must, of course, be communicated to them. Also, while lawyers may be familiar with the effect of a stipulation, most jurors are not. Thus, counsel should request that the jury be advised as to its effect. CJI 12.30. Handling § 18:267.

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