People v. Ayala

Citation553 N.E.2d 960,75 N.Y.2d 422,554 N.Y.S.2d 412
Parties, 553 N.E.2d 960 The PEOPLE of the State of New York, Respondent, v. Neftali AYALA, Appellant.
Decision Date13 February 1990
CourtNew York Court of Appeals Court of Appeals

Raymond C. Volper and Stephen J. Pittari, White Plains, for appellant.

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

OPINION OF THE COURT

TITONE, Judge.

Defendant was convicted of murdering one James McKinley and attempting a criminal assault against one Thomas Barrett. The charges arose as a result of defendant's participation in a violent melee, which grew out of an earlier confrontation between defendant and the two victims. The present appeal requires us to consider whether the Wade hearing testimony of an eyewitness who has since become unavailable is admissible at trial under the statutory exception to the rule against hearsay that is contained in CPL 670.10. A further problem is presented because of the admission at trial of certain out-of-court statements made by two, separately prosecuted codefendants. We conclude that the Wade hearing testimony was not admissible under CPL 670.10. Nonetheless, although this evidence and the concededly inadmissible codefendants' statements should not have been placed before the jury, we hold that the conviction should be affirmed because, in light of the other evidence of guilt, these errors were harmless.

I. FACTUAL BACKGROUND
The People's Evidence

The case against defendant consisted principally of live eyewitness testimony describing both the preliminary altercation and the confrontation that led immediately to McKinley's death and Barrett's injury. Eileen Morgan, Barrett's girlfriend, and defendant's two companions, James Santiago and Franklin Villar, all testified that defendant initially encountered Barrett and McKinley on Palisade Avenue in Yonkers, New York. The men had a quarrel that quickly degenerated into a fist fight, which ended when Barrett pulled out a long metallic instrument, identified as either a knife or an icepick, and defendant ran away. Defendant, Santiago and Villar then located and enlisted the aid of three acquaintances, James Ortiz, Danny Mercado and Robert Ramos, ostensibly to aid defendant in a planned second fight with Barrett.

After driving around in search of McKinley and Barrett, defendant and his associates finally located them having a conversation with Zina Everett and Donnita Bunch in the lobby of Morgan's apartment building on School Street in Yonkers. According to Bunch's trial testimony, a group of three or four individuals, including defendant, entered the lobby. 1 Bunch testified that defendant, whom she knew from school, quickly "jumped" and then began punching McKinley on the left side of his chest. The "punching" motion, which, as Bunch demonstrated for the jury, resembled a stabbing motion, was repeated some three times. Bunch, however, did not see a weapon in defendant's hands from her vantage point of approximately five feet away.

Shortly thereafter, gunshots were heard. Bunch and Everett ran into a nearby hallway, Morgan looked out her apartment window in time to see defendant and three others chasing McKinley and Barrett, and a third eyewitness, Eleanor Brown, also saw a chase from her apartment window. Brown and Morgan both stated that one of the men stopped and, with arms extended, fired twice at the men who were being chased. Morgan, Santiago and Villar all saw McKinley fall to the ground, pick himself up and run into a nearby car. Villar identified Ortiz as the shooter, but Ortiz told his companions that he had only begun shooting after he saw Mercado doing so. Mercado also acknowledged shooting "the guy" who hit him with a bottle. Barrett was subsequently treated for a gunshot wound. McKinley had a superficial gunshot wound, a superficial abrasion and two deep stab wounds. McKinley ultimately died as a result of these wounds, which penetrated his heart and lungs.

The Disputed Pretrial Statements

In addition to the foregoing eyewitness and forensic testimony, the People introduced the pretrial statements that are the focus of this appeal. The first of these was a redacted transcript of the Wade hearing testimony given by Zina Everett, which was read to the jury as part of the People's evidence-in-chief. Everett, who had become unavailable in the interim, gave testimony at the Wade hearing that essentially paralleled Bunch's trial testimony. The only significant differences between Everett's Wade hearing testimony and Bunch's trial testimony was Everett's assertion that she had seen some unidentified object in defendant's hand.

Also admitted at defendant's trial were redacted versions of Ortiz's and Mercado's statements to police after the incident. Ortiz's statement described the events leading up to the School Street confrontation in a manner similar to the description provided by Santiago and Villar. Ortiz, however, claimed that he had waited in the car while "others" went inside the building and that, after some gunshots were heard, two of the "others" returned to the car and one of these returnees boasted that he had "paid them back" and "had stabbed him." Mercado's redacted statement admitted that he (Mercado) had been present at the School Street incident, that he had been hit by a bottle and that someone else had been stabbed. Although Mercado and Ortiz were not tried with defendant, 2 the trial court instructed the jury that their statements were admitted "to establish the allegation in the indictment that a number of individuals were aiding, abetting and acting in concert with each other in the commission of these alleged crimes." In addition, in a posttrial written decision the trial court indicated that the Mercado and Ortiz statements had been admitted as declarations against penal interest.

Defendant was convicted of second degree murder and attempted first degree assault. On appeal, the Appellate Division held that defendant's appellate arguments concerning the admission of the Everett, Ortiz and Mercado statements were adequately preserved by timely and specific objection, that the arguments were meritorious and that the three statements should not have been admitted. The court nonetheless affirmed the convictions, since, in light of the overwhelming evidence of guilt, it found the errors to be harmless. 142 A.D.2d 147, 534 N.Y.S.2d 1005. We agree with the Appellate Division's conclusion and, accordingly, affirm.

II. DISCUSSION
Admissibility of The Hearsay Evidence

To be admissible, the prior testimony of Zina Everett, which was otherwise classifiable as hearsay, had to satisfy CPL 670.10 (see, People v. Harding, 37 N.Y.2d 130, 133-134, 371 N.Y.S.2d 493, 332 N.E.2d 354; see also, People v. Gonzalez, 54 N.Y.2d 729, 442 N.Y.S.2d 980, 426 N.E.2d 474). That statute provides: "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 [CPL] 180.60, or (c) an examination of such witness conditionally, conducted pursuant to article [660], may * * * 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". The "subsequent proceedings" at which such testimony may be admitted include "[a]ny proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness's testimony and to which such testimony related".

The undisturbed findings of the courts below that the People exercised the necessary diligence in their unsuccessful efforts to locate Everett are supported by the record and, consequently, cannot be disturbed by this court (see, People v. Arroyo, 54 N.Y.2d 567, 573-574, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855). Thus, that element of the statutory requirements has been satisfied and the only remaining question for us to resolve is whether the witness's prior testimony falls within the class of evidence that the Legislature intended to render admissible by enacting CPL 670.10.

It is undisputed that the Wade hearing at which Everett's testimony was given is not literally within any of the three categories of prior proceedings delineated in the statute, i.e., felony hearings, article 660 conditional examinations 3 and trials of accusatory instruments. Although conducted in close temporal proximity to the commencement of defendant's trial, the Wade hearing was not part of the "trial" itself, which, in defendant's case, began only after the jury was sworn (CPL 1.20[11]; see, People v. Anderson, 16 N.Y.2d 282, 288, 266 N.Y.S.2d 110, 213 N.E.2d 445). Indeed, the Legislature has specifically provided that, in most instances, a motion to suppress evidence must be made and determined before the formal commencement of trial (CPL L 255.20, 710.40). Thus, by definition, a Wade suppression hearing such as that held in defendant's case cannot be considered part of the "trial."

Although it recognized that the Wade hearing at which Everett testified was not within the literal terms of CPL 670.10, the trial court decided to adopt a "more expansive reading" of the statute. Such a reading was justified, in the court's view, because "[i]t defies logic to believe that the Legislature would allow the testimony at so restrictive a hearing as a felony hearing to be admitted at trial [see, CPL 670.10(1)(b) ] and not allow testimony taken at a previous [suppression] proceeding which was more expansive in scope and in which the witness was adequately cross-examined" (121 Misc.2d 1073, 1075, 470 N.Y.S.2d 88). We disagree.

First, although CPL 670.10 is "[l]argely a codification of...

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