Friday, July 25, 2014
Where's The Proof?: Court of Appeals of New York Denies Best Evidence Objection by Defendant Who Defrauded Michael Bloomberg
The Court of Appeals of New York addressed but did not resolve an interesting Best Evidence Rule issue in its recent opinion in People v. Haggerty, 2014 WL 2921401 (N.Y. 2014), a case in which a man allegedly defrauded former New York City Mayor Mike Bloomberg. So, what was the issue?
In 2009, then-Mayor Michael R. Bloomberg was running for re-election and sought to fund what he called a ballot security operation for the purpose of protecting voter access to the polls. [John Haggerty] was a Bloomberg campaign volunteer who had assisted with ballot security during Bloomberg's 2005 mayoral campaign. Defendant offered to organize ballot security for the 2009 elections and earned the trust of Bloomberg's campaign staffers. Unbeknownst to them, defendant's proposed ballot security operation was, in reality, a scheme to defraud Bloomberg of his money.
That scheme worked as follows: Haggerty submitted a budget of $1.1 million to fund the operation, Bloomberg responded by creating a revocable trust of $1.2 million ($1.1 million for the operation and $100,000 as a campaign contribution to the Independence Party), and Haggery only ended up spending $32,000 on the operation, pocketing the remainder.
Haggerty was subsequently charged with money laundering and grand larceny, with the prosecution of course having to prove that the money in the trust came from Bloomberg to prove Haggerty's theft. At trial,
During a sidebar, the People requested that the defense stipulate to Bloomberg's ownership of the funds [in the trust], but the defense refused to do so. In response, the People called Marjorie Jane Friday, the principal draftsperson of the trust. Over defendant's objection that the best evidence rule required the People to introduce the trust instrument itself, she testified that the trust funds belonged to Michael Bloomberg.
New York doesn't have codified rules of evidence, but it follows the same Best Evidence Rule that is contained in the Federal Rules of Evidence. Rule 1002 provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
Meanwhile, Rule 1004(d) provides that
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:....
the writing, recording, or photograph is not closely related to a controlling issue.
On appeal, Haggerty claimed that
the terms of Bloomberg's trust were in dispute because those terms would demonstrate definitively whether the trust funds belonged to Bloomberg. Under the best evidence rule, the trust instrument should have been admitted, and the People should not have been permitted to call Friday to testify.
In response, the State argued
Friday's testimony did not violate the best evidence rule because she testified based on her independent knowledge that Bloomberg owned the money in the trust, and, regardless, the terms of the trust instrument were collateral to the issue of whether the funds belonged to Bloomberg. In the alternative, the People contend that even if admission of Friday's testimony violated the best evidence rule, the error was harmless.
In the end, the Court of Appeals of New York found that it did not have to resolve the issue because Haggerty had failed to object to prior testimony that had already established Bloomberg's ownership of the trust funds.
Fair enough, but what if Haggerty had objected? Let's look at the two arguments made by the State. One argument was that "the terms of the trust instrument were collateral to the issue of whether the funds belonged to Bloomberg." This Rule 1004(d) argument doesn't really hold water. The question in the case was whether Haggerty stole trust funds belonging to Bloomberg, so of course the content of the trust -- who owned the trust -- was central to a controlling issue in the case.
A second argument was that Friday had "independent knowledge that Bloomberg owned the money in the trust...." I would argue that this was an impossibility. The independent knowledge "exception" to the Best Evidence Rule allows a witness to testify about a recorded event because the witness would have knowledge of the event even if the recording were not made. So, for instance, the cashier at 7-Eleven could testify regarding the appearance of her robber without the surveillance recording of the robbery being introduced. This is because the cashier would have knowledge of the robber even if there were no recording.
But, in Haggerty, this is an impossibility because Friday was being asked to testify regarding what was in the trust. She obviously couldn't have knowledge of the ownership of trust funds in the absence of the trust because it is the trust itself which contains those funds.