People v. Diaz

• Decision Date: 28 June 2005
• Docket Number: 5083.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 58

798 N.Y.S.2d 21

2005 NY Slip Op 05445

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE DIAZ, Appellant.

5083.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 28, 2005.

APPEAL from a judgment of the Supreme Court, New York County (Renee A. White, J.), rendered June 25, 2002. The judgment convicted defendant, upon a jury verdict, of gang assault in the first degree, and imposed sentence.

Laura R. Johnson, The Legal Aid Society, New York City (Cheryl P. Williams of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Hilary Hassler and Eleanor J. Ostrow of counsel), for respondent.

OPINION OF THE COURT

MAZZARELLI, J.P.

The primary issue on this appeal is whether defendant's right to confront the witnesses against him under the Sixth Amendment of the United States Constitution has been violated. Specifically, defendant asserts that the admission of a statement by a victim, who was unavailable to testify at trial, identifying him as one of his attackers was improperly admitted under Crawford v. Washington (541 US 36 [2004]). Defendant also argues that the evidence was legally insufficient to support his conviction for gang assault in the first degree, and, alternatively, that his conviction was against the weight of the evidence. Finally, defendant claims that the court erred in denying his application for a missing witness charge entitling him to a new trial.

The Facts

Jose Diaz, Leonel Hernandez and Jose Ramirez were indicted for two counts of first-degree assault, and two counts of first-degree gang assault. These charges resulted from an attack on Neno Espejo and Eduardo Carillo in the Inwood section of Manhattan in the early morning hours of July 16, 2001. At trial, Espejo testified that on the evening of July 15, 2001, he and Carillo had gone to a friend's apartment to watch a videotape of their soccer team's most recent game. He stated that at approximately 3:30 A.M., he left to go home, and that Carillo walked with him. Espejo recounted that as the two reached the corner of Sherman Avenue and Thayer Street, a man standing outside the Los Compadres bar waved at Carillo, and Carillo crossed the street to talk to him. Espejo saw the man tap Carillo on the shoulder. Two others then emerged from the bar, and an argument ensued. Espejo went over and asked what was going on, and one of the men pushed him. Espejo testified that he and Carillo tried to run away, but someone grabbed Espejo's shirt and ripped it off. At this point, the group outside the bar had grown to about six, and one of them pulled out a box cutter and began to cut Espejo. The others punched and kicked him. Carillo and Espejo escaped momentarily, but Carillo dropped his cell phone. When Carillo stopped to retrieve it, the group caught up to them and grabbed Carillo. The man with the box cutter slashed at Carillo repeatedly, opening a huge gash at the side of his mouth and up his cheek. Others were simultaneously kicking Carillo. Eventually, Espejo and Carillo got away and Carillo called 911.

Police Officer Gallagher testified that at 3:45 A.M., he and his partner received a radio transmission, based on the 911 call, to go to the intersection of Dyckman Street and Broadway. Within a minute, they arrived at the location and encountered Espejo and Carillo. Gallagher stated that the men were so bloody that he could not see the source of their wounds. Upon closer inspection, Gallagher determined that Carillo had severe facial lacerations, and that Espejo had cuts on various parts of his body. Gallagher described both Espejo and Carillo as "dazed" from the assault. He said Espejo appeared less injured than Carillo, although he was visibly shaken and vomiting. Officer Gallagher called for an ambulance.

Officer Brian Jay testified that he responded to the same 911 transmission and arrived at the scene about the same time as Gallagher. He said he took Espejo with him to canvass the area and that a few blocks away, they saw Hernandez. Espejo identified Hernandez,¹ and Jay noticed that he had blood on his shirt. Jay approached Hernandez, who appeared to be talking on a pay phone. When Jay asked to speak to the person on the phone, Hernandez handed him the receiver, and the officer heard only a dial tone. Jay took Hernandez into custody.

Meanwhile, Officer Timothy Garcia, who also came to the scene in response to the 911 call, had begun to search the area on his own. Garcia testified that at the corner of Dyckman Street and Sherman Avenue, about three blocks from Los Compadres, he was flagged down by a pedestrian. As a result of a conversation with that person, Garcia walked toward a small brick wall around the garbage storage area of 104 Sherman Avenue. There he found Diaz and Ramirez crouched amidst trash. He had to command them several times to stand up and show their hands, before they complied. Diaz had blood on his shirt, hands and face. Ramirez had blood on his hands. Garcia brought Diaz and Ramirez back to where Carillo lay on an ambulance stretcher. It was at this time that Carillo made the statement at issue and whose admission, defendant argues, violated his constitutional rights.

Over defense objection, the trial court allowed the following testimony from Officer Gallagher:

"Q. You testified yesterday that there was a point in time when you were in the company of Eduardo Corillo² in an ambulance and two individuals, who are in the courtroom, were brought over to the vicinity of the ambulance. Firstly, can you tell me if you see those individuals in the courtroom? If so identify them?

"A. Yes I do.

"Q. Who are they?

"A. Mr. Ramirez and Mr. Diaz . . .

"Q. Who were you with when Mr. Ramirez and Mr. Diaz were brought over to the ambulance?

"A. I was with Mr. Corillo.

"Q. And if you recall what, if any reaction came from Mr. Corillo when Mr. Ramirez and Mr. Diaz were brought over?

"A. Reaction-wise, face lit up . . .

"Q. Did Mr. Corillo say anything at that time?

"A. Yes he did.

"Q. What did Eduardo Corillo say when Mr. Ramirez and Mr. Diaz were brought over?

"A. `That's them.'" (Emphasis supplied.)

Officer Gallagher testified that he placed Diaz, Ramirez and Hernandez under arrest and vouchered the bloody shirts belonging to Diaz and Hernandez.³ Carillo and Espejo were taken to Presbyterian Hospital for treatment, including stitches to close their lacerations. Photographs of the injuries were shown to the jury, which the parties stipulated were "serious" within the definition of the assault statute. There was no identification of Diaz by Espejo, and the People could not locate Carillo for the trial. The three defendants declined to present any witnesses.

At the charge conference, Diaz requested a missing witness instruction as to Carillo, arguing that the People had not established that he was unavailable. The People opposed the application, asserting that they did not have control over Carillo, and the court declined to issue the charge. The jury acquitted Hernandez and Ramirez, but convicted Diaz of gang assault in the first degree (involving Carillo).⁴

Several days after the verdict was rendered, defendant made a motion to set it aside based upon newly discovered evidence (CPL 330.30 [3]), consisting of a signed statement by Carillo, in which he asserted "Jose Diaz is innocent of this crime." At a hearing on the motion, Carillo testified that defendant was the man outside Los Compadres who had summoned him to cross the street. However, Carillo stated that he was not sure whether Diaz was one of the persons who had punched him or kicked him, but he was sure that Diaz had pushed him. He then testified, "I always wanted to think that he [Diaz] had no motive for hitting me and I don't know if he hit me or not, but I think — I think that they all hit me." Carillo explained that he meant, in his signed statement, only that Diaz was not the man who cut him. In opposition to the CPL 330.30 motion, the People argued that at the time of his appearance before the grand jury, when his memory was fresh, Carillo had been certain of his identification of Diaz as one of his assailants. The People also claimed Carillo had been contacted by Diaz and convinced to change his testimony. Immediately after the CPL 330.30 hearing, defense counsel submitted a supplemental affirmation, with an attached transcription of a telephone conversation between Carillo and an individual alleged to be Diaz's cousin. At this point, the defense contended that Carillo was extorting money from the Diaz family.

In its decision on the CPL 330.30 motion, the court credited Carillo's testimony before the grand jury, and rejected his later, equivocal and contradictory statements at the posttrial hearing. It also rejected Carillo's signed statement as having been procured by payoffs from the Diaz family. The court found that Carillo's hearing testimony, had it been offered at trial and credited by the jury, would, in fact have strengthened, rather than weakened, the prosecution's case against Diaz. The court also noted that the People's case would have been even stronger had evidence about the pretrial payoffs by the Diaz family been before the jury. Accordingly, the court denied the CPL 330.30 motion and the defendant was sentenced to five years' imprisonment.

Discussion — The Confrontation Clause

In Crawford v. Washington (541 US 36 [2004]), the United States Supreme Court enunciated a new rule. It held that if, in a criminal proceeding, a "testimonial" statement is admitted against the accused, the defendant has an absolute right, under the Confrontation Clause of the Sixth Amendment⁵ to cross-examine the person who made that statement. The Supreme Court held all such statements inadmissible if the witness is unavailable and the defendant did not have a prior opportunity to cross-examine him or her (id. at 53-54).

The Crawford case involved a defendant who was being tried for...