People v. Cotto

Citation699 N.E.2d 394,92 N.Y.2d 68,677 N.Y.S.2d 35
Parties, 699 N.E.2d 394, 1998 N.Y. Slip Op. 6559 The PEOPLE of the State of New York, Respondent, v. Richard COTTO, Appellant.
Decision Date01 July 1998
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

KAYE, Chief Judge.

Whenever the People allege specific facts which demonstrate a "distinct possibility" that a criminal defendant has engaged in witness tampering, the court must grant a Sirois hearing to test the validity of that claim (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591; see also, People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817). Defendant challenges his conviction for second degree murder and related crimes primarily on the ground that the trial court's ruling after a Sirois hearing was flawed in several respects. Perceiving no error warranting a new trial, we affirm the Appellate Division order upholding the conviction.

I.

At defendant's March 1996 trial for the shooting death of Steven Davilla in New York City, the prosecution planned to call eyewitness Anthony Echevarria, a 22-year-old neighborhood resident who knew both defendant and the victim. The People indicated in pretrial disclosure to defense counsel and in their March 15 opening statement that Echevarria would testify that he was present at the time Davilla was shot and that defendant was the shooter. Echevarria had met with prosecutors and the police on March 13 and 14, at which time he had identified defendant as the shooter.

On March 17, the day before he was to testify, Echevarria, then incarcerated at Rikers Island on an unrelated charge, telephoned the lead prosecutor and left a voicemail message that he would no longer testify as to the shooter's identity. He said that his family was "in jeopardy" and "everything is off, I'm not doing nothing. You put me on the stand, do whatever you got to do but I don't know nothing. I didn't see nothing * * * Forget everything."

After informing the trial court of this development the next morning, the prosecution met with Echevarria, at which time the witness promised that he would tell the truth about what he had seen. When called at trial later that day, however, Echevarria once again claimed he could not identify the shooter and asked to speak to the Trial Judge. As he told her:

"Spanish Harlem is a small place, okay. My family lives there. All right. I don't live there. Okay.

"Steven was a friend of mine, a good friend of mine. All right.

"Now, see, I got to think about my family, all right. Even though I'm not going to live there, my family is going to be there, you know what I'm saying."

The People at that point noted that Echevarria had told a prosecutor that some men had approached members of his family and gave them reason to believe that there was a "contract" out on him, and they moved to introduce the prior statements Echevarria had made to law enforcement officials implicating defendant. The court ordered a Sirois hearing to test the People's assertion that defendant had intimidated Echevarria.

At the hearing, the People called Police Officer Wilson Vargas and Detective Hedxan Quinones, who had been present at the March 13 and 14 trial preparation sessions. They testified that at the first session the prosecutor confronted Echevarria with a written statement he had made to the police shortly after the murder in which he gave a false name and did not identify the shooter; Echevarria responded that he had been scared at the time. In each of the sessions, according to these witnesses, Echevarria described the events he saw the night of the shooting, relating that while he was using a telephone on the corner, he saw defendant cross the street in a crouched manner, holding his hand close to his side. When he reached the corner, defendant approached Davilla, said "What's up now, money?" pointed a gun at Davilla and shot him. Davilla fell backward, stumbled and attempted to run away. Defendant followed, continuing to fire shots. Defendant then turned around, looked at Echevarria face-to-face, pointed the gun at him without firing, and fled. Vargas and Quinones further testified that during the two sessions, Echevarria was seated in a chair, was not in handcuffs, did not appear nervous, demonstrated a positive frame of mind, engaged in conversation without any sign of discomfort and was not promised anything for his trial testimony.

Officer Vargas testified, additionally, that he and a prosecutor met with Echevarria again on March 20, two days after Echevarria testified that he could not identify the shooter, but before the Sirois hearing. Echevarria said at that meeting that early on the day before he was to testify, he spoke by telephone to his fiancee. She had expressed fear for herself and her child, and told him that someone had approached his mother and sister and inquired as to his whereabouts. Echevarria said that he was afraid "something might happen to [his] family" if he testified and that "there would probably be a contract" out on him.

Detective Quinones further testified that he had spoken with Echevarria's mother and sister a few days before the Sirois hearing. The sister told Quinones that a few days earlier, unidentified people from her neighborhood had approached her and asked her exactly where Echevarria was being housed in Rikers Island. She told the detective that "word on the street" was that her brother "was talking." She added that she knew defendant's family had "killed a family a while ago" and that if anyone talked against defendant's family, they would be killed.

When called by the People at the Sirois hearing, both Echevarria and his sister denied the statements attributed to them indicating that threats had been made. The sister denied that she had been harassed, and denied telling Detective Quinones or her mother about a conversation with the harassing party. Moreover, although testifying that she knew Richie Cotto by face, when asked if she could identify him in the courtroom, she answered, several times, "I don't know." Echevarria himself reiterated his trial testimony that he could not identify the shooter, and explained the voicemail message by stating that he did not want to testify at trial because he did not want to miss an upstate parole hearing, since that would delay his release date from prison and adversely affect his family.

The People also called Echevarria's mother as a hearing witness. She testified that prior to the morning of March 17, her daughter had told her that someone had stopped her in the street with her baby and had asked whether her brother was incarcerated. The questioner also stated that Echevarria had "talked" about the murder. Echevarria's mother testified that her daughter said she was scared and afraid for her brother--a sentiment she had never previously expressed. When her daughter learned that her mother had related this incident to Quinones, she became upset and told her mother that she had a "big mouth."

At the conclusion of the hearing, the trial court announced that the People had met their burden of showing, by clear and convincing evidence, that Echevarria had been intimidated by defendant, that his March 13 and 14 statements would be admitted at trial, and that cross-examination of Echevarria would not be permitted but that the jury would have before it "Echevarria's live direct testimony as well as his [conflicting] out-of-court statements to the police." Defense counsel asked whether she would be permitted to question Vargas and Quinones about the "res gestae of the statement," but otherwise made no objection regarding cross-examination. The Trial Judge later issued a written opinion on the Sirois issues (see, 169 Misc.2d 194, 642 N.Y.S.2d 790).

At trial, Quinones and Vargas testified as to Echevarria's statements at the March 13 and 14 meetings and were cross-examined by defense counsel. Echevarria did not return to the stand. The jury ultimately returned a guilty verdict. On appeal, the Appellate Division affirmed defendant's conviction, and we now affirm the order of that court.

II.

In People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817, we held that at a Sirois hearing, the People must demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused a witness's unavailability. If the People meet that burden, the defendant is precluded from asserting either "the constitutional right of confrontation or the evidentiary rules against the admission of hearsay in order to prevent the admission of the witness's out-of-court declarations" (id., at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817). Contrary to defendant's argument, we conclude that the People satisfied their heavy burden, so that Echevarria's out-of-court declarations could be evaluated by the jury.

First, there was sufficient evidence to establish that threats were made against Echevarria. At the Sirois hearing, Quinones and Vargas testified as to Echevarria's out-of-court statements as well as the interviews with his sister and mother, showing that he was prepared to identify defendant but had been scared into silence. Echevarria and his sister, in their testimony, denied that threats had been made and that they had told police or prosecutors anything about those threats. That credibility clash has been resolved by findings of the Trial Judge (who observed the witnesses)--affirmed by the Appellate Division--that the People's evidence was credible, the contrary evidence not. In the words of the trial court:

"during his testimony both on March 18 and again at the Sirois hearing, Echevarria appeared to be anxious, uncomfortable and forced in his responses, a demeanor inconsistent with...

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