People v. Ausserau

• Decision Date: 30 October 1980
• Citation: 77 A.D.2d 152,432 N.Y.S.2d 940
• Parties: PEOPLE of the State of New York, Respondent, v. Robert W. AUSSERAU, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 940

432 N.Y.S.2d 940

77 A.D.2d 152

PEOPLE of the State of New York, Respondent, v. Robert W. AUSSERAU, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Oct. 30, 1980.

Edward J. Nowak, Public Defender, Rochester (Brian Shiffrin, Rochester, of counsel), for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester (Melvin Bressler, Rochester, of counsel), for respondent.

Before DILLON, P. J., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.

SCHNEPP, Justice.

On this appeal appellant contends that he was improperly denied a hearing on his post judgment motion (CPL 440.10, subd. 1, pars. (g) and (h)) to vacate his judgment of conviction of assault in the first degree.

On November 17, 1976 Nick Nichols was shot while in the parking lot in the rear of his grocery store on Monroe Avenue, Rochester, New York. At trial appellant's statement admitting the shooting was introduced into evidence. Nichols also positively identified appellant as the assailant. Before trial the Assistant District Attorney informed defense counsel that during an interview with Lieutenant John Kennerson of the Monroe County Sheriff's Department, on December 31, 1976, a John Grossman admitted shooting a grocer on Monroe Avenue at about the same time that Nichols was shot. At the trial Grossman was called as a defense witness but he invoked his right against self-incrimination and declined to testify. Detective Kennerson was then called as a defense witness and he testified, without objection, that on December 31, 1976 he was told by Grossman, during an interrogation about several crimes which had been committed in Monroe County, that a couple of months earlier Grossman had robbed a grocery store on Monroe Avenue and that during the robbery he shot the grocer who was standing behind a counter in the store. To rebut the inference that Grossman and not appellant was the assailant, the People recalled Nichols who testified that he was shot by appellant and not by Grossman, whom he knew.

On this motion appellant claims that Grossman made a second statement to the police admitting his involvement in a Monroe Avenue shooting which occurred behind the victim's grocery store, not inside as Detective Kennerson had testified. In support of this claim appellant relies on his trial counsel's affidavit which states that he was told by Grossman's attorney after the trial that Grossman gave a statement to Chief of Detectives William Mahoney, Detective Kennerson and Assistant District Attorney Henry Jesserer on January 18, 1977 to the effect that Grossman was the driver of a getaway car when an unnamed companion shot Nichols behind his store. In further support of appellant's claim, he submits an affidavit from Jesserer in which he admits his presence during Grossman's interrogation when Grossman mentioned "a shooting of a grocer in a parking lot behind his grocery store on Monroe Avenue". Jesserer also states that the newspaper accounts of the Nichols shooting were "the same" as the account given by Grossman as to his shooting incident. Appellant claims that this discovery demonstrates that the People failed to provide him with all exculpatory material as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Initially the People claimed that Grossman's only statement was made on December 31, 1976 and that defense counsel was fully informed of the substance of the statement. Later the People, still claiming that only one statement was made, conceded that the statement was made on January 18, 1977 and not December 31, 1976. The People, however, now concede that there were in fact two statements made by Grossman. A stenographic transcript of the interview on January 18, 1977 was provided to the Court which shows that Grossman admitted to several crimes including "a robbery on Monroe Avenue." However, this reference to the Monroe Avenue robbery was immediately followed by an off-the-record discussion and the incident was not mentioned again on the record.

In denying defendant's application without a hearing, the trial court ruled that the claimed newly discovered evidence, i. e., Grossman's admitted involvement in a shooting behind a grocery store on Monroe Avenue, would be inadmissible hearsay at a new trial because it was not adverse to Grossman's penal interest when made and therefore did not meet the standards set forth in People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612, and that appellant had made no showing that any alleged newly discovered evidence or Brady material would be admissible at a new trial.

Subdivision 5 of section 440.30 of the Criminal Procedure Law provides that the court "must conduct a hearing and make findings of fact" on the post judgment motion, unless it can be summarily denied based on "uncontradicted allegations" in the papers (CPL 440.30, subd. 2), or because the moving papers do not allege "any ground constituting legal basis for the motion" or because the supporting papers are defective for failure to contain "sworn allegations ... tending to substantiate" the facts (CPL 440.30, subd. 4, pars. (a) and (b)).

The Court of...