Facts
- New York City police officers Kenneth Boss, Sean Carroll, Edward McMellon, and Richard Murphy were indicted in Bronx County for second-degree murder and first-degree reckless endangerment arising from the February 4, 1999 shooting death of Amadou Diallo, an unarmed Black man.
- Diallo was shot 41 times, and the shooting generated intense local and national attention, including commentary asserting that the number of shots and Diallo’s unarmed status proved guilt regardless of other facts or defenses.
- Publicity also frequently framed the incident as racially motivated, adding to the charged atmosphere for potential jurors in the Bronx.
- With trial approaching (scheduled for early January 2000), defendants moved in the Appellate Division, First Department (Nov. 9, 1999), for an order removing the indictment and action from Bronx County to Westchester County, or to another county outside New York City, under CPL 230.20(2).
- The People opposed the venue change and cross-moved to dismiss the motion as untimely under CPL 255.20(1), arguing it was filed beyond 45 days after defendants’ March 31, 1999 arraignment.
- Defendants supported the motion with public-opinion surveys conducted close in time to the projected trial date. The surveys reported that 81% of Bronx residents polled and 67% of New York City residents polled believed there was no justification for shooting Diallo 41 times.
- The People did not submit evidence challenging the surveys’ accuracy or methodology.
- Defendants also presented evidence of large demonstrations tied to the case, including protests at or near the Bronx courthouse, at police headquarters, and at other sites, with thousands participating and more than 1,000 arrests, including current and former high-ranking public officials.
Issues
- Whether the Appellate Division should consider defendants’ change-of-venue motion despite the People’s claim that it was untimely under CPL 255.20(1).
- Whether, under CPL 230.20(2), defendants showed reasonable cause to believe they could not obtain a fair and impartial trial in Bronx County due to prejudicial publicity and community hostility, requiring removal to another county.
Decision
- The court considered the venue motion despite the People’s timeliness objection, relying on CPL 255.20(3) and noting the motion depended substantially on a recently completed public-opinion survey conducted near the anticipated trial date.
- The court found reasonable cause to believe a fair and impartial trial could not be had in Bronx County, given the combined effect of extensive prejudicial media coverage, survey evidence of fixed community views, and mass protests and arrests connected to the case.
- The court granted defendants’ motion and ordered the indictment and action removed from Supreme Court, Bronx County to a superior court in Westchester County.
- The People’s cross-motion to dismiss the motion as untimely was denied.
Legal Principles
- Under CPL 230.20(2), the Appellate Division may order removal of an indictment to another county upon a showing of reasonable cause to believe a fair and impartial trial cannot be had in the county where the indictment is pending.
- A pretrial venue change is an extraordinary remedy, appropriate only in rare situations where outside influences create a serious risk to the presumption of innocence and the selection of an impartial jury.
- Under CPL 255.20(3), a court may reach an otherwise late motion in the interest of justice, including where the motion relies on information not reasonably available earlier (such as a survey conducted close to trial to test whether passions have cooled).
- In assessing reasonable cause, courts may weigh (a) the volume and tone of publicity, including whether it conveys conclusions of guilt, (b) empirical polling evidence regarding community views, and (c) public demonstrations and related events that may place pressure on jurors beyond what voir dire can reliably cure.
- The absence of meaningful rebuttal evidence from the People may strengthen the weight given to defense survey data and other proof offered in support of removal.
Conclusion
In People v. Boss, the First Department held that the Diallo shooting prosecution presented the kind of unusual pretrial atmosphere—shown by unrebutted survey data, heavy prejudicial publicity, and sustained mass demonstrations and arrests—creating reasonable cause to believe the defendants could not receive a fair and impartial trial in Bronx County, and it therefore ordered the case removed to Westchester County while rejecting the People’s timeliness challenge.