People v. Corley
| Decision Date | 24 May 1979 |
| Citation | 417 N.Y.S.2d 616,99 Misc.2d 853 |
| Parties | The PEOPLE of the State of New York v. Dwight CORLEY, Defendant. |
| Court | New York Supreme Court |
The issue in this case is whether a defendant may be convicted solely upon the preliminary hearing testimony of a now unavailable complaining witness, where cross-examination on the crucial issue of credibility, although not actually restricted by court rulings, was perfunctory due to the nature of the hearing.
The background of the case is as follows:
The defendant was arrested on December 2, 1977 for Robbery in the Second Degree. Upon arraignment, defendant was held in lieu of bail and a preliminary hearing on the felony complaint was held in Criminal Court on December 7, 1977, where the defendant was ably represented by the same counsel as at trial. The minutes of that hearing consist of four pages of direct and eight pages of cross-examination. The only witness was the complainant, Kevin Ford, age sixteen, who testified that on December 1, 1977 at 9 P.M., in front of 2000 Valentine Avenue, Bronx, the defendant and another (both acquaintances of the complainant) seized him and forcibly took five hundred dollars from his sock. He testified that he notified the police and on the next day saw the defendant in the same area, called the police, and pointed out the defendant. During cross-examination there were numerous objections by the prosecutor but nearly all were overruled. A few questions were asked concerning the prior relationship and the defendant's claim that the complainant had really lost his money to the defendant in gambling, but none were asked on the complainant's background, the source of the complainant's money, the reference in the UF 61 to defendant's use of a knife during the robbery, or the conversations between the complainant and defendant in the police car after the arrest, in which the defendant is alleged to have offered restitution.
After the case was held for the grand jury the defendant was indicted and a jury trial was commenced before this Court on May 7, 1979. Two police witnesses testified at the trial, to the effect that upon his arrest the defendant pretended not to know the complainant and had a conversation with him in the police car during which the defendant was overheard telling the complainant he would "get his money back for him" in return for "dropping charges". The trial was then interrupted for several days while the prosecutor attempted to locate the complainant, who had disappeared on the day he had been scheduled to testify.
A hearing was then held pursuant to CPL § 670.20 to determine whether personal attendance of the witness was precluded because he could not with due diligence be found. At the hearing it was established that up until the trial the complainant had fully cooperated with the prosecutor and had promised to appear on schedule; that he had disappeared from his home for the past several nights and had not gone to school, but had been seen in the neighborhood; that he was actively and intentionally hiding himself; that as a result of this hiding the police were unable to find him despite a diligent search; that a material witness proceeding had been commenced against him; and that the complainant had told one Graham Ross, who testified at the hearing, that he, (the complainant) was hiding because he had been paid by the defendant not to testify.
After the hearing, this Court ruled that the personal attendance of the witness was precluded, whereupon a properly authenticated transcript of the criminal court hearing testimony was admitted over objection. The People rested without calling other witnesses. Decision on defendant's motion for a trial order of dismissal on grounds of legal insufficiency was reserved until after the verdict in view of People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811, Cert. den. 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099. Defendant's case at trial consisted of placing in evidence the complainant's alleged prior inconsistent statement about a knife as recorded in the UF 61 complaint report. The jury found the defendant guilty of Robbery in the Second Degree. The motion to dismiss is now before the Court.
Prior testimony is a traditional "hearsay exception". There are two classes of true hearsay exceptions. One class consists of exceptions such as the regular business entry exception, which are admitted because of a belief that they have the same reliability as non-hearsay evidence. Prior testimony is in the other class, in which the admission of hearsay is dependent upon the unavailability of the non-hearsay declarant, as well as being justified by some indicia of reliability, and is thus authorized as a matter of policy, essentially as being "better than nothing". The use of such evidence against a criminal defendant has long been considered consistent with the Sixth Amendment confrontation clause despite the fact that this procedure permits the interest of the People in proving their case to weigh more heavily than the defendant's interest in confronting and cross-examining witnesses in the presence of the jury (Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409).
The use of prior testimony in a criminal case is regulated by CPL § 670.10, which, as applicable to the facts in this case, provides that: " testimony given by a witness at . . . (b) a hearing upon a felony complaint conducted pursuant to section 180.60 . . . may, where otherwise admissible, be received and read into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness . . . cannot with due diligence be found." Actual inability to produce the witness despite due diligence is also a constitutional prerequisite to the admission of prior testimony in view of the strong constitutional preference for "live" testimony complete with demeanor (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255).
In this case unavailability was obvious in view of the complainant's feigned cooperation with the prosecutor until the convenient moment of the attachment of jeopardy, followed by his deliberate hiding in order to avoid testifying. These facts are essentially the same as those in People v. Arellano, 55 A.D.2d 691, 389 N.Y.S.2d 42, where the witness played the same game with the prosecution and the receipt of prior testimony was upheld. 1
Having resolved the threshold question of availability, we see that although CPL § 670.20 authorizes admission of an authenticated transcript of hearing testimony with no showing other than unavailability, )". (People v. Simmons, 36 N.Y.2d 126, 131, 365 N.Y.S.2d 812, 816, 325 N.E.2d 139, 142, see also Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293). This applies when cross-examination at the hearing is restricted by the hearing court because of the statutory scope of the hearing (People v. Kizer, 83 Misc.2d 58, 370 N.Y.S.2d 827) as well as where it is inadequate because of the absence of significant "Brady" material at the hearing (People v. Reed, Sup., 414 N.Y.S.2d 89).
Nevertheless, this case presents the more troubling question of the proper use of hearing minutes where the only restriction on the opportunity to cross-examine was defense counsel's appropriate Self -restraint under the circumstances of the hearing. The problem arises from the differences between the issues and defense functions at a preliminary hearing and a trial, especially a jury trial. 2 As explained in Havey v. Kropp, 6 Cir., 458 F.2d 1054:
"(T)he issues at a preliminary hearing and at trial are substantially different, since while at the latter the issue is the guilt or innocence of the accused, the former is concerned only with whether an offense has been committed and whether probable cause exists to hold the accused for trial . . . (I)t is the usual practice of defense attorneys not to reveal their case and not to cross-examine further where such examination cannot result in dismissal of the charge because too much other evidence of probable cause exists." .
Thus, even if the opportunity to do a full trial cross-examination is made available, rightly or wrongly, by the hearing court, the defense is unlikely to avail itself of such an opportunity. Indeed, the defense may realize that this opportunity will be promptly withdrawn by the court if abuse is perceived. The constitutional dilemma is what to do with the hearing testimony of the now unavailable witness who has been subjected to a "hearing" cross-examination but not a "trial" cross-examination as a result of appropriate defense strategy...
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People v. Corley
...testimony violated defendant's right to confrontation, and the evidence was otherwise insufficient to support the verdict (99 Misc.2d 853, 417 N.Y.S.2d 616). Nearly 15 months later, on August 14, 1980, the Appellate Division (one Justice dissenting) reversed and reinstated the verdict, rema......
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People v. Corley
...earlier ruling as to the admissibility of those minutes and granted defendant's post verdict motion to dismiss the indictment (99 Misc.2d 853, 417 N.Y.S.2d 616). A recognized exception to a defendant's constitutional right to confront adverse witnesses authorizes the use at a later proceedi......