People v. D'ARTON

• Decision Date: 13 December 2001
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>CHRISTOPHER D'ARTON, Appellant.
• Court: New York Supreme Court — Appellate Division

289 A.D.2d 711

734 N.Y.S.2d 309

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.CHRISTOPHER D'ARTON, Appellant.

Mercure, J.

Decided December 13, 2001.

Cardona, P. J., Crew III, Carpinello and Lahtinen, JJ., concur.

Mercure, J.

On the evening of May 18, 1995, defendant robbed and killed his employer, Paul Coppola, at Coppola's automotive shop in the Town of Rotterdam, Schenectady County. The trial evidence showed that it had been Coppola's intention to pick up his friend James Gardner that evening so that they could travel together to Manheim, Pennsylvania, for the purpose of attending the following day's auto auction there. The People offered evidence of three telephone conversations Coppola had with Gardner between 6:00 P.M. and 7:00 P.M. on May 18, 1995, during the course of which Coppola indicated that he was waiting at his shop to receive payment on a loan that he had made to unidentified individuals and, in fact, that he had received word that they were on Interstate Route 890, in close proximity to the shop. The People also offered testimony by Gardner and Coppola's wife concerning Coppola's habit of carrying large amounts of cash on his person, particularly when on a business trip. On this appeal from the judgment entered on a jury verdict convicting defendant of intentional murder, felony murder, two counts of robbery in the first degree and two counts of tampering with evidence, defendant challenges only County Court's receipt of the foregoing evidence.

Initially, we reject the contention that County Court erred in receiving evidence concerning Coppola's habit of carrying cash on his person. "It has long been the rule that evidence of habit is generally admissible to demonstrate specific conduct on a particular occasion * * *" (People v Boomer, 230 AD2d 941, 942, lv denied 89 NY2d 919 [citation omitted]; see, Halloran v Virginia Chems., 41 NY2d 386, 392; People v Gardella, 56 AD2d 609; cf., People v Paschall, 91 AD2d 645, 646; see also, Prince, Richardson on Evidence § 4-601, at 197-198 [Farrell 11th ed]). In this case, Coppola's wife testified that Coppola carried between $500 and $1,000 in cash at all times and detailed the manner in which he would carry bills of various denominations in his right and left pants pockets. Gardner testified that Coppola had a habit of ordinarily carrying $400 to $500 in spending money and carrying $500 to $1,500 on business trips. In our view, that testimony evidenced a deliberate and repetitive practice sufficient to allow the inference of its persistence and County Court acted within its discretion in receiving it (see, Halloran v Virginia Chems., supra, at 392).

The question of whether County Court erred in receiving evidence of the three telephone conversations between Gardner and Coppola is more problematic. Under the "state of mind" hearsay exception, "when a particular act of [a] declarant is at issue, the declarant's statement of a future intent to perform that act is admissible as proof of the declarant's intent on that issue and as inferential proof that the declarant carried out his intent" (statement of a declarant's solitary future action) (People v Chambers, 125 AD2d 88, 91, appeal dismissed 70 NY2d 694; see, Mutual Life Ins. Co. v Hillmon, 145 US 285, 295-296; People v Toland, 284 AD2d 798, 805, lv denied 96 NY2d 942). Secondly, as a further extension of this species of the "state of mind" exception, courts have admitted "statements of a declarant's future intent to perform an act with another person as circumstantial proof that the act did occur and, by necessary implication, that the other person participated in the act" (statement of a declarant's intention to perform acts entailing the participation jointly or cooperatively of a nondeclarant) (People v Chambers, supra, at 91; see, Mutual Life Ins. Co. v Hillmon, supra, at 296).

Finally, the exception has, under appropriate circumstances, been applied in cases where the third-party nondeclarant is a criminal defendant and evidence of the defendant's participation in the act sought to be established tends to inculpate him or her in the charged crime or crimes (see, People v James, 93 NY2d 620; People v Malizia, 92 AD2d 154, 160, affd 62 NY2d 755, cert denied 469 US 932; cf., People v Chambers, supra). In People v James (supra), a case falling within this third classification, the Court of Appeals delineated the foundational safeguards necessary to ensure against the dangers of unreliability as a showing that: "(1) the declarant is unavailable * * * (2) the statement of the declarant's intent unambiguously contemplates some future action by the declarant, either jointly with the nondeclarant defendant or which requires the defendant's cooperation for its accomplishment * * * (3) to the extent that the declaration expressly or impliedly refers to a prior understanding or arrangement with the nondeclarant defendant, it must be inferable under the circumstances that the understanding or arrangement occurred in the recent past and that the declarant was a party to it or had competent knowledge of it * * * and (4) there is independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to falsify * * * and evidence that the intended future acts were at least likely to have actually taken place" (id., at 634-635 [citations omitted] [emphasis in original]).

Noting that the second and third of the criteria set forth in People v James (supra) presuppose that the nondeclarant third party be a criminal defendant, defendant contends that, because he was not one of the men whom Coppola was expecting or a person acting jointly with such men, those criteria ...