People v. Ayala

• Decision Date: 21 November 1988
• Citation: 142 A.D.2d 147,534 N.Y.S.2d 1005
• Parties: The PEOPLE, etc., Respondent, v. Neftali AYALA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1005

534 N.Y.S.2d 1005

142 A.D.2d 147

The PEOPLE, etc., Respondent, v. Neftali AYALA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 21, 1988.

Stephen J. Pittari, White Plains (Raymond C. Volper, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Richard L. Hecht and Maryanne Luciano, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, SPATT and SULLIVAN, JJ.

SPATT, Justice.

In this case, we are called upon to determine whether testimony given at a suppression hearing may, pursuant to CPL 670.10, be received into evidence at a subsequent proceeding when the witness has become unavailable. We hold that suppression hearing testimony is not "testimony given by a witness at * * * a trial of an accusatory instrument" within the meaning of CPL 670.10 and, therefore, that it was error for the trial court to admit such testimony in this case. This case also presents the issue of the admissibility of the postarrest statements of two separately-tried codefendants. We find that the statements do not satisfy any recognized exception to the hearsay rule and, accordingly, hold that the admission into evidence of the statements at the defendant's trial was error. However, in view of the overwhelmingevidence of the defendant's guilt and the trial court's redaction of both the hearing testimony and the codefendants' statements, we further find that the errors were harmless.

I

The defendant, Neftali Ayala, also known as "Shock", was convicted of murder in the second degree and attempted assault in the first degree as a result of his participation in an armed attack upon James McKinley and Thomas Barrett on March 21, 1982, in Yonkers, New York, which resulted in McKinley's death and injuries to Barrett. Although other participants were also indicted for crimes arising from this incident, this defendant was tried alone.

The evidence presented at trial by the prosecution established that the events underlying the defendant's conviction were precipitated by a confrontation between the defendant and the victims earlier that same day. Eileen Morgan, the girlfriend of the injured complainant Thomas Barrett, testified that on the evening of March 21, 1982, she was with Barrett and James McKinley near a gas station on Palisade Avenue in Yonkers when she saw some Hispanic men on the same street some distance away. She recognized one of the Hispanic men from the school they had both attended. She knew him by the nickname "Shock". She identified the defendant as "Shock". Morgan witnessed the defendant and Barrett and McKinley fighting and walked away to Barrett's house.

James Santiago and Franklin Villar testified that they were walking on Palisade Avenue with the defendant on the evening of March 21, 1982, when two men, who they later learned were Thomas Barrett and James McKinley, approached the defendant. Barrett, who was the larger of the two men, asked the defendant whether he had had "trouble with" McKinley. The defendant responded by hitting Barrett. The two men then engaged in a fistfight. In the course of the fight, the defendant fell and McKinley kicked him in the face. The defendant got up, took off his belt and struck Barrett in the face with it.

McKinley and Barrett then ran a short distance and taunted the defendant to come after them. Barrett offered to fight the defendant "one-on-one", and the two men began fighting again. After the defendant struck Barrett twice in the face, Barrett pulled out a long metallic instrument which appeared to be either a knife or an ice pick, and the defendant ran away.

At the defendant's suggestion, he, Santiago and Villar went to the home of their friend James Ortiz, also known as "Cuch". The defendant told Ortiz about the fight and stated that he wanted Ortiz to prevent McKinley from jumping in while he (the defendant) fought Barrett. Ortiz replied that he did not want to get involved unless his friend Danny Mercado, also known as "Lucan", was present. So the defendant, Santiago and Villar got into Ortiz's green Plymouth and Ortiz drove to Mercado's house. Upon discovering that Mercado was not home, Ortiz drove to another location where he found Mercado and Robert Ramos. Ortiz informed Mercado of the defendant's situation and asked if Mercado would help. Mercado and Ramos got into Ortiz's car. At Mercado's request, Ortiz stopped at Mercado's house and Mercado went in to get "something".

Meanwhile, Barrett and McKinley met Morgan at Barrett's house. At approximately 10:00 P.M., the two men accompanied Morgan to her home in an apartment building at 55 School Street in Yonkers. They walked with her to her apartment on the sixth floor. Morgan testified that she went to a front window of her apartment to watch Barrett and McKinley and instead saw a green car with a white sign on the passenger's side drive past the front of the building.

Donnita Bunch testified that on March 21, 1982, at approximately 10:30 P.M., she was in the lobby of 55 School Street with her friend Zina Everett. She saw Thomas Barrett and James McKinley, both of whom she had known for a few years, walk into the lobby through the front entrance and enter an elevator. A short while later, Barrett and McKinley returned to the lobby where they stopped to converse with Bunch and Everett.

Meanwhile, according to the testimony of Villar and Santiago, Ortiz drove these witnesses, as well as the defendant, Mercado and Ramos to a housing project looking for Barrett and McKinley. Finding no one at this location, Ortiz, having declined the requests of Villar and Santiago to be driven home, proceeded to 55 School Street. Ortiz stopped in front of this address, and the defendant said, "I think those are them". Ortiz then drove around the corner and parked his car on Brook Street. Villar and Santiago remained in the car while Ortiz and the defendant entered the building through the back and Mercado and Ramos went through the front door.

Donnita Bunch testified, in partial contradiction to the testimony of Villar and Santiago, that after she had been talking with Barrett and McKinley for approximately 15 minutes, three or four people entered the lobby through the rear staircase door. She recognized one of these people as the defendant, who she knew from school by the nickname "Shock". She noticed that the defendant had a fresh scar on the right side of his face. According to Bunch, upon entering the lobby the defendant looked around, "jumped" and started punching James McKinley in the chest. Bunch demonstrated the punching motion for the jury. Without objection, the prosecutor described the demonstrated motion as "fist raised with the bottom portion of the hand facing forward and using the elbow as a fulcrum she is moving it back and forth." In this manner, the defendant struck McKinley three times in the left side of his chest. Bunch testified that she witnessed this attack from a distance of approximately five feet but did not see a weapon.

At this point, Bunch heard gunshots and she and Everett ran into a nearby hallway. Morgan, in her sixth-floor apartmen also heard gunshots. She looked out the front window and saw Barrett and McKinley being chased by the defendant and three other people. She observed one of the other people stop twice and shoot at the fleeing men. She watched as McKinley fell, got back up and then both men got into a car on the corner.

Eleanor Brown, a tenant on the fourth floor of 55 School Street, also heard gunshots at approximately 11:00 P.M. on March 21, 1982. She went to a front window of her apartment and saw two men. One of the men was holding a gun with both hands, arms extended. He fired the gun twice. She then watched the men run around the corner to Brook Street and get into a green car. Morgan, by moving to a different window, observed four people get into a green car with a white sign on it parked on Brook Street. She also testified that she observed a "scrape or scratch" on the defendant's face. After the shooting stopped, Bunch returned to the lobby but found no one there.

Villar and Santiago also testified to hearing shots a few minutes after their companions had left the car. Villar stated that he saw his companions chasing two black men in front of the building. As he watched, Ortiz held the gun with both hands in front of him and fired. McKinley fell, then picked himself up and kept running. All four assailants then ran to Ortiz's car, and all six men went to the defendant's house.

When he got back into the car, Mercado was bleeding from the top of the head. He commented that "the guy" hit him with a bottle, so he shot him. Ortiz stated that as soon as he saw Mercado shooting, he (Ortiz) began shooting.

Dr. Vifoot Chowzhuvech testified that James McKinley arrived at the emergency room of Yonkers General Hospital at approximately 11:00 P.M. on March 21, 1982. He was unconscious, thrashing around and had no pulse or blood pressure. The doctor observed a stab wound in the area of the nipple on the left-side of the chest. Approximately five minutes later, McKinley went into cardiac pulmonary arrest. All efforts at resuscitation proved unsuccessful and, at 11:45 P.M., McKinley was pronounced dead.

Dr. Chowzhuvech also examined Thomas Barrett. He observed a gunshot wound entering the right side of Barrett's back and exiting through the front. Dr. Fansem Hastanan, a surgeon at Yonkers General Hospital, testified that he perform exploratory surgery of Barrett's abdomen and discovered that the injury was limited to the wall of the abdomen with no damage to the internal organs. The parties stipulated that the Thomas Barrett treated at Yonkers General Hospital was the same Thomas Barrett who had been in the lobby and who died in May 1983 from causes unrelated to this incident.

Dr. Louis Roh testified that he observed four wounds on the body of James McKinley: (1) a superficial bullet wound on the back of the left...