People v. Arroyo

Decision Date19 January 1982
Citation431 N.E.2d 271,54 N.Y.2d 567,446 N.Y.S.2d 910
Parties, 431 N.E.2d 271 The PEOPLE of the State of New York, Respondent, v. Pedro ARROYO, Appellant.
CourtNew York Court of Appeals Court of Appeals
Sheri Lynn Johnson, Brooklyn, and William E. Hellerstein, New York City, for appellant


In the main, we are asked to say whether the admission at trial of an unavailable witness' preliminary hearing testimony constituted an unconstitutional application of CPL 670.10 in violation of the right of confrontation. We find it did not.

Defendant was convicted, after a jury trial, of assault in the second degree and the Appellate Division, 79 A.D.2d 950, 435 N.Y.S.2d 16, has since affirmed. The charge stemmed from an incident in which he was alleged to have inflicted multiple stab wounds on his estranged "common-law wife". When the case came on for trial, the People asserted that the victim, who was the sole identifying witness, had disappeared and that diligent attempts to discover her whereabouts had failed. After hearings to determine the question, Trial Term ruled that, with the exception of specified redactions, testimony she had given at a preliminary hearing could be read into evidence at trial. The remainder of the People's case consisted essentially of the calling of a police officer, a hospital physician and the introduction of records, all of which bore on circumstances surrounding the assault rather than who committed it.

Largely a codification of common law, CPL 670.10, as pertinent, reads: "Under circumstances prescribed in this article, testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60, or (c) an examination of such witness conditionally, conducted pursuant to article six hundred sixty, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court" (emphasis added). (See Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 670.10, pp 190-191.)

It is defendant's contention that the People's efforts to obtain the missing witness' personal presence at trial were too brief, too belated, too cursory and too halfhearted to meet the statute's "due diligence" requirement. He further claims that the functional scope of the preliminary hearing and the limited nature of the cross-examination of the witness were too inadequate, when measured by confrontation values, to allow for the introduction of her testimony at trial. Elaborating on the latter point, he argues that, because of the early stage at which the preliminary hearing was held, his counsel's investigation of the case at best was too incomplete to lay a foundation for effective cross-examination and that this deficiency was exacerbated by undue restriction by the court. Moreover, defendant also complains that, even if the court's ruling to receive the witness' preliminary hearing testimony had been proper, it was error to deny a protective application to delete his counsel's cross-examination from the transcript to be read to the jury. And, finally, defendant insists that, because of the catalogue of deficiencies he alleges, the witness' hearing testimony, concededly a sine qua non for making out a prima facie case, could not suffice, as a matter of law, to establish defendant's guilt beyond a reasonable doubt.

Fundamental to the issues thus raised is the right of a defendant in a criminal case to confront an adverse witness, as guaranteed by both Federal and State Constitutions (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6). This fair trial requirement not only exposes the witness to a face-to-face encounter, but opens the door to that most effective trial tool for testing truth, cross-examination. So vital is the latter that, with narrow and cautious exceptions, such as, for instance, those which permit the use of certain types of hearsay (with the inherent limitations on effective cross-examination that these bring in their wake), the general rule is that testimonial statements which cannot be subjected to this test must be excluded (5 Wigmore, Evidence §§ 1367, 1369, 1420). 1

The corollary is that, for an exception to fall outside the constitutional constriction, it must carry an alternative, though different and perhaps somewhat lesser, assurance of reliability (Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597). Even then, it must first have met a threshold criterion of necessity (Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255), for without it, it is difficult to constitutionally justify resort to evidence whose reliability is not necessarily assured by confrontation tests. 2

In the case here now, that the missing witness was both the individual upon whom the crime was perpetrated, as well as the only one to admit firsthand knowledge of its commission, went far to establish necessity. But this, standing alone, was not enough. Her unavailability also had to be established to satisfy the court that the prosecutor's failure to produce her was not due to indifference or a strategic preference for presenting her testimony in the more sheltered form of hearing minutes rather than in the confrontational setting of a personal appearance on the stand. So, the statute, reflecting the spirit of the underlying constitutional prescriptions, demands a showing that the witness "cannot with due diligence be found" (see Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 supra; Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255, supra).

Putting these rules to the test, the trial court, after reviewing the circumstances and motives for her disappearance and the People's efforts to locate her, found as a matter of fact that due diligence indeed had been employed. Based on the events covered by its inquiry on this subject, these may be said to have transpired between September 1, when the assault took place, and the following February 13, the date on which the trial court, acting pursuant to CPL 670.20, 3 was to grant the motion to introduce the witness' testimony at trial. It was during this period, on September 11, that the preliminary hearing at which the witness testified, apparently without any reluctance, was held. Nothing untoward occurred thereafter until November 24, when the witness, accompanied by defendant's counsel, called at the District Attorney's office. She there informed the assistant in charge that she would prefer "to drop the charges". He thereupon explained both that this was not a decision for her to make and that the People intended to pursue the prosecution. Even after he so advised her, she at no time, then or thereafter, directly or indirectly, indicated that she would either refuse to testify or would absent herself from the trial.

It is nevertheless now the position of the defendant, aided by hindsight, that the People should have taken undescribed extraordinary steps to assure her availability at trial. Instead, the Assistant District Attorney did no more than keep her on a standby basis until Friday, February 2, when he telephoned her to arrange for her attendance in his office at 9:00 a. m. on Monday, February 5, the case having been transferred into a trial part for that day. She did not demur. He followed up by arranging to have a detective call on the witness personally on the intervening Sunday, February 4, to make certain she understood where and when she was to report; on this visit, the detective too encountered no lack of co-operation.

The next day, when she had not appeared, the prosecutor telephoned her apartment twice, reaching only her grown daughter, who related that her mother had left without saying where she was going. Also on that day, the detective, armed with a subpoena, made two fruitless trips to the apartment. In the ensuing week, commencement of the trial proper having been held up meanwhile, daily phone calls by the prosecutor, who had procured a material witness order, and investigation now by two police officers, who, among other things, repeatedly visited the apartment, questioned neighbors, scoured the scene of the crime and checked at the neighboring public hospital, at the Missing Persons Bureau, at the Bureau of Criminal Investigation and at the local office at which the witness received her welfare checks, in the process gaining access to its records in their search for further leads, all brought them to but one dead end after another. On one of the visits to the apartment, they had, however, come across an unsigned handwritten note addressed to the daughter in which the writer announced her departure for an unstated New Jersey destination, whose whereabouts the investigators never were able to locate.

After learning the status of the search during the initial session of the 670.20 hearing on February 8, the Judge, concluding from a comparison of the note with the witness' signature on the criminal complaint that the two were written by the same person, allowed the People to continue their efforts to find the witness while a jury was being selected. In the ensuing days, continuing their investigation under the prosecutor's direction, the officers returned to the apartment, interviewed the superintendent of the building in which it was located, spoke to a local restaurateur reputed to be a close friend of the witness and to a miscellany of "street people", all to no avail. By then, the court had also...

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