People v. Cole

• Decision Date: 12 April 1984
• Citation: 474 N.Y.S.2d 149,100 A.D.2d 442
• Parties: PEOPLE of the State of New York, Respondent, v. Allen COLE, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 149

474 N.Y.S.2d 149

100 A.D.2d 442

PEOPLE of the State of New York, Respondent, v. Allen COLE, Jr., Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 12, 1984.

Edward J. Nowak, Public Defender, Rochester (Yolanda Villa, Rochester, of counsel), for appellant.

Howard R. Relin, Dist. Atty., Rochester (Kathleen Majewski, Asst. Dist. Atty., Rochester, of counsel), for respondent.

Before DILLON, P.J., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.

DILLON, Presiding Justice:

The jury convicted defendant of burglary in the third degree and grand larceny in the third degree, arising from the entry into, and theft of personalty from, a home located on Avenue D in the City of Rochester. The first and principal issue presented on defendant's appeal is whether, despite an order suppressing defendant's inculpatory statement as having been induced by a police officer's false promise, a prosecutor may use the statement to impeach defendant's credibility at trial.

In moving for a pretrial order suppressing a statement given by defendant to a Rochester Police Detective, defendant alleged, inter alia, that "false promises or misleading statements were made to defendant". In response to the motion, the answering affidavit stated: "The People do not oppose suppression of the statement since it was taken as a result of promises made to the defendant by law enforcement officers". County Court suppressed the statement without a hearing. On a subsequent motion, the court suppressed a second statement of defendant which had been made to a parole officer almost immediately after defendant's statement to the detective. On its finding that there was no attenuation of the inducement by "false promise" of the statement previously suppressed, the court granted the motion.

During trial, defendant sought an order proscribing use of the first statement on cross-examination of defendant, if he testified. Upon argument of the motion, both counsel agreed that defendant had been promised by the detective that if he gave the statement he would be prosecuted for a parole violation, but not for any other criminal charges. Relying upon the "rationale" of the decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the trial court ruled that the statement could be used by the prosecutor for impeachment purposes, and defendant chose not to testify.

In Harris, the Supreme Court held that a statement obtained in violation of a defendant's Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and thus inadmissible as evidence-in-chief, may be used to impeach the defendant's credibility "provided, of course, that the trustworthiness of the evidence satisfies legal standards" (Harris v. New York, supra, 401 U.S. p. 224, 91 S.Ct. p. 645). The Supreme Court "weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury" (New Jersey v. Portash, 440 U.S. 450, 458, 99 S.Ct. 1292, 1296, 59 L.Ed.2d 501) and concluded that the latter should prevail (see, also, Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570). For reasons which will become obvious, a balancing of such interests would not be appropriate here. ¹

Subdivision 1 of CPL 60.45 provides that a defendant's involuntarily made statement may not be received in evidence against him. A confession is involuntary when it is obtained from a defendant by a public servant engaged in law enforcement, by means of any promise which "creates a substantial risk that the defendant might falsely incriminate himself" (CPL 60.45, subd. 2, par. [b], cl. [i] ).

Here the People conceded that the statement should be suppressed because it resulted from promises made by law enforcement officers. On that point there is no dispute. Yet the People now contend that the concession did not amount to an acknowledgment that the statement was involuntary. We reject that view as being inconsistent with the position necessarily taken by the District Attorney in response to the suppression motion. The mere fact that a promise was made by the detective did not require suppression of defendant's statement. If the promise was such that it did not create a substantial risk that a false confession could result, defendant's statement was competent evidence and should have been offered as part of the People's direct case (People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Diaz, 77 A.D.2d 523, 430 N.Y.S.2d 310; affd. 54 N.Y.2d 967, 446 N.Y.S.2d 38, 430 N.E.2d 914). It was not, for the obvious reason that the statement was thought to be incompetent as having been involuntarily made within the meaning of the statute. No other plausible basis for requiring suppression is perceived by this court, nor is any offered by the People.

If cross-examination is the "most efficacious test for discovery of truth" (Richardson, Evidence [Prince, 10th ed], § 488, p 474; 5 Wigmore, Evidence [Chadbourn rev 1974], § 1367), and we agree that it is, how destructive of that principle it would be to permit the prosecutor to impeach the credibility of a defendant by use of a statement suppressed as a matter of law because of its substantial potential for falsity. It is axiomatic that prosecutorial cross-examination must be conducted in good faith (see, e.g., People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804). That standard would not be satisfied if the prosecutor were allowed to use evidence which he has agreed, and the court has determined, may well be...