People v. Crampton

• Decision Date: 31 January 1985
• Citation: 107 A.D.2d 998,484 N.Y.S.2d 721
• Parties: The PEOPLE of the State of New York, Respondent, v. William L. CRAMPTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 721

484 N.Y.S.2d 721

107 A.D.2d 998

The PEOPLE of the State of New York, Respondent, v. William L. CRAMPTON, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 31, 1985.

Scott C. Gottlieb, Binghamton, for appellant.

Patrick H. Mathews, Broome County Dist. Atty., Binghamton (Joann Rose Parry, Binghamton, of counsel), for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Broome County, rendered September 16, 1983, upon a verdict convicting defendant of the crimes of attempted rape in the first degree and endangering the welfare of a child.

It is alleged that on March 18, 1983, defendant and several companions engaged in sexual intercourse with the 14-year-old female complainant. Defendant was indicted on one count of rape in the first degree and one count of endangering the welfare of a child. It is further alleged that the victim had been drinking beer and wine, smoking marihuana throughout the evening and was "physically helpless" during the incident (see Penal Law, § 130.00, subd. 7; § 130.35, subd. 2). A jury found defendant guilty of attempted rape in the first degree and endangering the welfare of a child. He was sentenced to a term of imprisonment of 4 to 12 years on the attempted rape conviction and a concurrent definite term of one year on the misdemeanor conviction. This appeal ensued.

Defendant initially contends that the trial court erred by allowing the complainant to testify that, during the incident, she heard one of the codefendants, Charles Monta, state "Hurry up, Bumpty. I want my turn." It appears that "Bumpty" is a nickname of defendant. Defendant urges that this hearsay testimony was improperly utilized to identify him as a participant and not a spectator in the incident, and, relying upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, contends that he was deprived of his right to cross-examine the declarant (see U.S. Const., 6th Amdt.; N.Y. Const., art. I, § 6). We agree.

When a hearsay declarant is not present for cross-examination at trial, the confrontation clause normally requires the People to demonstrate that the person is unavailable and that the statement bears adequate "indicia of reliability" (Ohio v. Roberts, 448 U.S. 56, 67, 100 S.Ct. 2531, 2540, 65 L.Ed.2d 597; People v. Sanders, 56 N.Y.2d 51, 64, 451 N.Y.S.2d 30, 436 N.E.2d 480). The People bear the burden of demonstrating a good-faith effort to obtain a declarant's presence (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255). A review of the record in this case shows that defendant requested an opportunity to cross-examine Monta in response to the prosecution's offer of proof, and yet no effort was made to explain his unavailability. Rather, the trial court granted the offer of proof apparently on an assessment that Monta's statement was not violative of the hearsay rule. The difficulty with this holding is that the extrajudicial statement was being offered to establish identity and was clearly hearsay (Richardson, Evidence § 200, p. 176). It was, therefore, incumbent upon the prosecution to satisfy the two-fold test of unavailability and reliability set forth inOhio v. Roberts (supra) (see Williams v. Melton, 733 F.2d 1492).

Although a codefendant who invokes his Fifth Amendment privilege not to testify may be deemed unavailable (United States v. Arbelaez, 719 F.2d 1453, 1460; People v. Brown, 26 N.Y.2d 88, 93, 308 N.Y.S.2d 825, 257 N.E.2d 16), here Monta had already pleaded guilty prior to the instant trial. As such, the People were required, but failed, to demonstrate that he would not testify. Moreover, a serious question of reliability attends the Monta statement. Even if the statement qualifies as a "present sense impression" exception to the hearsay rule (see People v. Watson, 100 A.D.2d 452, 463-469, 474 N.Y.S.2d 978), the victim was virtually unconscious at the time she purportedly heard this statement. Given this circumstance and the fact that she previously attributed the statement to a different speaker, we cannot say that the statement bears sufficient indicia of reliability from which the jury could evaluate the truth (see Ohio v. Roberts, supra, pp. 62-66, 100 S.Ct. pp. 2537-2539; see Proposed Code of Evidence for the State of New York § 804, subd. par. ). It follows that admission of the statement was an error of constitutional dimension.

Nevertheless, we conclude that any error occasioned by the admission of this hearsay statement was harmless beyond a reasonable doubt. The harmless error rule, as it relates to constitutional error, is:

* * * that there is no reasonable possibility that the error might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt (Chapman v. California, 386 U.S. 18 Fahy v. Connecticut, 375 U.S. 85 ) (People v. Crimmins, 36 N.Y.2d 230, 237 ).

While demanding and difficult to apply, "the reasonable doubt standard * * * still leaves room for judgmental determination of harmlessness (e.g., People v. Sanders, 56 N.Y.2d 51, 66-67 )" (People v. Schaeffer, 56 N.Y.2d 448, 455, 452 N.Y.S.2d 561, 438 N.E.2d 94). The case must be reviewed as a whole, giving due regard to the effect of the tainted statement and the strength of the remaining evidence.

Here, the record provides overwhelming proof of defendant's guilt of an attempted rape. Although the victim was unable to identify her assailant, an accomplice, Calvin Bailey, testified that he observed defendant remove the victim's pants and attempt intercourse with her. Defendant urges that the only evidence to corroborate Bailey's testimony was the improperly admitted hearsay statement attributed to Monta. To the contrary, the record contains ample corroborative proof independent of the Monta statement. Two witnesses, Lisa Bloodgood and William Arnold, both testified that they observed the victim lying on the bed with no clothes on while defendant stood at the foot of the bed with his pants down. Another witness, Jeffrey Zomback, testified that he observed defendant placing his fingers in the victim's vagina and that defendant later stated he had not ejaculated during the attack. A realistic appraisal of all of this evidence confirms that the admission of the hearsay statement was but harmless error, particularly since, as noted above, the victim's testimony was fraught with uncertainties and could...