People v. Brensic

• Decision Date: 04 June 1987
• Citation: 517 N.Y.S.2d 120,509 N.E.2d 1226,70 N.Y.2d 9
• Parties: , 509 N.E.2d 1226 The PEOPLE of the State of New York, Respondent, v. Robert BRENSIC, Appellant. The PEOPLE of the State of New York, Respondent, v. Douglas YOUNG, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 120

517 N.Y.S.2d 120

70 N.Y.2d 9, 509 N.E.2d 1226

The PEOPLE of the State of New York, Respondent, v. Robert BRENSIC, Appellant.

The PEOPLE of the State of New York, Respondent, v. Douglas YOUNG, Appellant.

Court of Appeals of New York.

June 4, 1987.

Mary B. Corrarino, Ivan Kline and Eric Berry, New York City, for appellant in the first above-entitled action.

Patrick Henry, Dist. Atty. (Mark D. Cohen, Riverhead, of counsel), for respondent in the first above-entitled action.

Gary Hoppe and Glenn J. Pogust, New York City, for appellant in the second above-entitled action.

Elizabeth Holtzman, Dist. Atty. (Miriam R. Best and Barbara D. Underwood, Brooklyn, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

SIMONS, Judge.

Defendant Robert Brensic has been convicted by a Suffolk County jury of murder, second degree, and manslaughter, first degree, for his role in the asphyxiation death of 13-year-old John Pius. In an unrelated case, defendant Douglas Young has been convicted of rape, first degree, and two counts of robbery, second degree, stemming from his participation in an assault upon a woman which occurred on the grounds of the housing project in which he lived. Although others were similarly charged with the crimes arising from these two incidents, both defendants were tried alone and the common issue presented on these appeals is whether the trial courts improperly admitted into evidence against them the custodial confessions of nontestifying accomplices. The defendants claim that the admission of such evidence as declarations against penal interest violated New York evidentiary law and denied them their rights of confrontation and due process under the Federal and State Constitutions. We agree that admission of the confessions violated the hearsay rule because neither satisfied the prerequisites for reliability set forth in People v. Settles, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612 and People v. Maerling, 46 N.Y.2d 289 413 N.Y.S.2d 316, 385 N.E.2d 1245. Accordingly, we reverse the convictions and order new trials. Because our determinations rest on State evidentiary grounds, we do not reach defendants' Confrontation Clause claims (see, Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514; Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597).

I

Out-of-court statements introduced to prove the truth of the matters they assert are hearsay. They may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable (see, People v. Nieves, 67 N.Y.2d 125, 131, 501 N.Y.S.2d 1, 492 N.E.2d 109). In these cases the People contend that evidence was properly received as a declaration against penal interest. This exception to the hearsay rule recognizes the general reliability of such statements, notwithstanding the absence of the declarant to testify, because normally people do not make statements damaging to themselves unless they are true.

The exception has been recognized out of necessity and in the belief that the self-inculpating nature of the declaration serves as an adequate substitute for the assurance of reliability usually derived from the administration of an oath and the testing of the statements by cross-examination. Because these traditional guarantees are absent when out-of-court declarations against penal interest are offered, such evidence is admitted cautiously and only after reliability is firmly established (People v. Thomas, 68 N.Y.2d 194, 198, 507 N.Y.S.2d 973, 500 N.E.2d 293; People v. Geoghegan, 51 N.Y.2d 45, 49, 431 N.Y.S.2d 502, 409 N.E.2d 975; see generally, Fisch, NY Evidence § 891 ). As with all forms of hearsay evidence, a determination of the admissibility of a declaration against penal interest, focusing on the circumstantial probability of its reliability, must be made before it is received; the trial court must determine, by evaluating competent evidence independent of the declaration itself, whether the declaration was spoken under circumstances which renders it highly probable that it is truthful (see, People v. Shortridge, 65 N.Y.2d 309, 312-313, 491 N.Y.S.2d 298, 480 N.E.2d 1080; see generally, Richardson, Evidence § 206, at 183-184 Goodman & Waltuch, Declarations Against Penal Interest: The Majority Has Emerged, 28 N.Y.L.Sch.L.Rev. 51 Fine, Declarations Against Penal Interest in New York: Carte Blanche?, 21 Syracuse L Rev 1095 ). Thus, before statements of a nontestifying third party are admissible as a declaration against penal interest, the proponent must satisfy the court that four prerequisites are met: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability (People v. Thomas, 68 N.Y.2d 194, 197, 507 N.Y.S.2d 973, 500 N.E.2d 293, supra ).

When the declaration is offered by the People to inculpate the defendant in a criminal trial--as distinguished from declarations offered by defendant to exculpate himself--it is subjected to even more exacting standards in recognition of the due process protections afforded defendants charged with crime including, of course, the requirement that guilt be established beyond a reasonable doubt (see, People v. Thomas, supra, at 198, 507 N.Y.S.2d 973, 500 N.E.2d 293; People v. Maerling, 46 N.Y.2d 289, 298, 413 N.Y.S.2d 316, 385 N.E.2d 1245, supra; see, Martin, Evidence: Declarations Against Interest, Confrontation, N.Y.L.J., Jan. 9, 1987, at 1, col. 1; at 2, cols. 1, 2). In such instances, the trial court must find that the interest compromised is "of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify" (People v. Thomas supra, 68 N.Y.2d at 198, 507 N.Y.S.2d 973, 500 N.E.2d 293). This standard raises a rebuttable presumption of unreliability when the inculpatory declaration is the result of custodial questioning because, in such circumstances, the declarant is likely to have a "strong motive to falsify" in order to curry favor, shift blame, receive immunity from prosecution or obtain a favorable plea bargain (see, People v. Geoghegan, 51 N.Y.2d 45, 49, 431 N.Y.S.2d 502, 409 N.E.2d 975, supra; People v. Settles, 46 N.Y.2d 154, 166-168, 412 N.Y.S.2d 874, 385 N.E.2d 612, supra; and see, Richardson, Evidence op. cit., § 260, at 227-228; cf., Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514, supra ). Indeed, some authorities hold that a third party's statements against penal interest obtained during custodial interrogation should never be received in evidence to inculpate a defendant (see, United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir.), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 Report, New Jersey Sup. Ct., Committee on Evidence, at 170-171 4 Weinstein's Evidence, United States Rules p 804at 804-156 Comment, Declarations Against Interest-Rules of Admissibility, 62 Nw.U.L.Rev. 934 ).

When the People seek to introduce the declaration against penal interest of an unavailable third party to inculpate a defendant, through the testimony of an in-court witness, and the defendant claims that such evidence is unreliable, the trial court should conduct a hearing, if there is any dispute concerning the circumstances, to determine whether the criteria for admissibility are actually satisfied (see, People v. Thomas, 68 N.Y.2d 194, 198, 507 N.Y.S.2d 973, 500 N.E.2d 293, supra; People v. Maerling, 46 N.Y.2d 289, 299, 413 N.Y.S.2d 316, 385 N.E.2d 1245, supra ). If the court decides to allow such evidence, it should admit only the portion of that statement which is opposed to the declarant's interest since the guarantee of reliability contained in declarations against penal interest exists only to the extent the statement is disserving to the declarant (see, People v. Thomas, supra, 68 N.Y.2d at 198, 507 N.Y.S.2d 973, 500 N.E.2d 293 People v. Geoghegan, 51 N.Y.2d 45, 49, 431 N.Y.S.2d 502, 409 N.E.2d 975, supra; People v. Maerling, supra, 46 N.Y.2d at 298-299, 413 N.Y.S.2d 316, 385 N.E.2d 1245; and see, Richardson, Evidence op. cit. § 260, at 115 ). Finally, when the trial court decides to admit a declaration against penal interest through the testimony of a third party, it should give a proper limiting instruction at the time such testimony is introduced and it should also instruct on the use of the evidence during its final jury charge (see, People v. Thomas, 68 N.Y.2d 194, 201, 507 N.Y.S.2d 973, 500 N.E.2d 293, supra; see also, 4 Weinstein's Evidence, United States Rules p 804at 804-150 ).

In the two cases before us we are unable to "all but rule out any motive to falsify" on the part of the nontestifying declarants (People v. Maerling, 46 N.Y.2d 289, 298, 413 N.Y.S.2d 316, 385 N.E.2d 1245, supra ). That being so, the People failed to establish the reliability of their statements and it was error to permit the juries to consider them.

II

A

Defendant Robert Brensic has been convicted of killing John Pius. The body was found the day after the homicide, on April 21, 1979, in a wooded area behind the schoolyard of the Dogwood Elementary School in Smithtown, New York, covered by two logs and some twigs and leaves. Forensic examination revealed that death was due to traumatic asphyxia, caused by physical injuries resulting from beating and kicking and by rocks placed in decedent's mouth. Investigation led the police to Peter Quartararo, age 15, and Thomas Ryan, age 17. The police questioned the boys separately on April 28, 1979 and eventually obtained admissions and a confession from Peter...