People v. DiTommaso
| Citation | 2 N.Y.S.3d 494,127 A.D.3d 11,2015 N.Y. Slip Op. 01592 |
| Decision Date | 24 February 2015 |
| Docket Number | 2712/06, 11930 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Peter DiTOMMASO, Defendant–Appellant. |
| Court | New York Supreme Court Appellate Division |
Zuckerman Spaeder, LLP, New York (Paul Shechtman, Megan Quattlebaum and Maggie Lynaugh of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Stuart P. Levy, Peter D. Coddington and Diane A. Shearer of counsel), for respondent.
PETER TOM, J.P., DAVID FRIEDMAN, RICHARD T. ANDRIAS, DAVID B. SAXE, JJ.
Defendant was convicted, after a jury trial, of two counts of perjury in the first degree. The only arguments he raises on appeal are that the trial court erred when it allowed the People to admit certain grand jury testimony on their direct case under the past recollection recorded exception to the hearsay rule, and when it excluded, on relevancy grounds, a document critical to his perjury trap defense. For the reasons that follow, we find that the grand jury testimony should not have been admitted into evidence because the People failed to establish that the witness's recollection of the matter was fairly fresh when recorded or adopted during the grand jury proceeding, and the witness could not attest at trial that the testimony was accurate when given.
The indictment alleges that on June 15, 2006 and March 30, 2006, respectively, defendant Peter DiTommaso and his brother, codefendant Frank DiTommaso, committed perjury when they testified before a grand jury investigating Bernard Kerik.1
The investigation stemmed from allegations that in 1999 and 2000, Kerik, then Commissioner of the New York City Department of Corrections, accepted renovations to his apartment that were paid for by companies owned by the DiTommasos (the Interstate companies or Interstate). In return, Kerik allegedly vouched for the DiTommasos' integrity in investigations by public agencies in connection with applications by the Interstate companies for permits needed to obtain government contracts.2
Another witness who testified before the grand jury was Tim Woods, whose company, Woods Restoration, allegedly received payments from Interstate for renovations it performed on Kerik's apartment that were hidden by having Woods bill the work to other projects. The indictment alleges that when defendant was recalled to the grand jury on June 15, 2006 to clarify certain aspects of his March 28, 2006 testimony, he committed perjury when he testified that Woods Restoration worked on a project for St. Vincent's nursing home and that Interstate did not pay Woods Restoration for renovations to Kerik's apartment.
At the trial of the DiTommasos, when the prosecutor asked if defendant referred the Kerik job to him, Woods replied, “As far as I can remember.” However, he qualified this by stating that “we've [he and the prosecutor] gone over this so many times I can't remember if this is what we discussed or what happened[,]” and that he was “kind of mixed up whether or not it's [an] independent recollection or it's you and I having gone over it so many times.” When Woods persisted in his claim that he did not know whether his recollection had been reinforced or created by his discussions with the prosecutor over the past six years, the prosecutor, believing that Woods was feigning an inability to remember, sought to impeach Woods with his 2006 grand jury testimony. The court ruled that the use of the grand jury testimony for impeachment based on his purported failure to remember was “inappropriate,” but suggested that “there may be other avenues” for its admission.
Upon continued direct examination, Woods stated that based on his discussions with the prosecutor, it looked like Interstate paid Woods Restoration for the Kerik job, but that he had no independent recollection of that or of “a discussion with [defendant]about Bernard Kerik.” The prosecutor then offered Woods's grand jury testimony under the past recollection recorded exception to the hearsay rule. Defense counsel objected, and the court conducted a hearing outside the jury's presence to determine whether the foundational requirements for the past recollection recorded exception were satisfied.
At the hearing, Woods testified on direct examination by the prosecutor that he honestly was not sure about where his recollection of the Kerik job came from. While Woods repeatedly stated that he believed that he had testified truthfully and accurately before the grand jury, he also stated that “[a]s I sit here right now, I can't tell you if everything that's in that Grand Jury that I said was—is accurate, [or if] it's the result of, you know, prep sessions that we had.” Woods explained:
On cross-examination, Woods testified that he believed that he did not have a present recollection of the events during the prep sessions or when he appeared before the grand jury, and reiterated that he could not tell whether his grand jury testimony was based on his own recollection or the cumulative effect of all of the interviews and testimony he had previously given.
The trial court found that it was “clear” that when Woods testified before the grand jury “the events were fresh in his mind.” The court noted that Woods had testified before the grand jury with specificity and “never stated in either the grand jury testimony or any other proceeding, deposition or interview that he was confused or that his memory was muddled in any way.” Furthermore, Woods testified at the hearing that he believed that his grand jury testimony was truthful and accurate and the testimony itself was corroborated by other evidence.
Thus, finding that Woods “was being less than candid about his memory of the events in question,” the court permitted the People to introduce, under the past recollection recorded exception to the hearsay rule, Woods's grand jury testimony stating that defendant had asked him to bill the Kerik work to other Interstate jobs, including the St. Vincent's project, which Woods Restoration had in fact not worked on.
Under the past recollection recorded exception to the hearsay rule, a memorandum of a fact known or an event observed in the past may be admitted if the witness is unable or unwilling to testify as to its contents, and otherwise competent evidence establishes that “the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” (People v. Taylor, 80 N.Y.2d 1, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992] ).
“The rationale for the doctrine is that the recorded information is essential to further the truth-seeking function of the trial proceeding and that when the conditions for admission have been met, there is sufficient assurance of the accuracy of the recordation and its trustworthiness” (Taylor, 80 N.Y.2d at 8–9, 586 N.Y.S.2d 545, 598 N.E.2d 693 ). When a proper foundation is laid, grand jury testimony may be admitted as past recollection recorded (see People v. Linton, 21 A.D.3d 909, 910, 800 N.Y.S.2d 627 [2d Dept.2005], lv. denied 5 N.Y.3d 854, 806 N.Y.S.2d 173, 840 N.E.2d 142 [2005] ; People v. Holmes, 291 A.D.2d 247, 248, 738 N.Y.S.2d 21 [1st Dept.2002] [], lv. denied 98 N.Y.2d 676, 746 N.Y.S.2d 465, 774 N.E.2d 230 [2002] ; People v. Turner, 210 A.D.2d 445, 620 N.Y.S.2d 434 [2d Dept.1994], lv. denied 85 N.Y.2d 915, 627 N.Y.S.2d 338, 650 N.E.2d 1340 [1995] ).
We now hold that protection of the integrity of these fundamental principles requires that defendant's conviction be reversed and a new trial ordered. Although there is no rigid rule as to how soon after the event the statement must have been made (see People v. Caprio, 25 A.D.2d 145, 150, 268 N.Y.S.2d 70 [2d Dept.1966], affd. 18 N.Y.2d 617, 272 N.Y.S.2d 385, 219 N.E.2d 204 [1966] ), here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six-year gap between the underlying events, which concluded in 2000, and Woods's grand jury testimony in 2006 (see People v. Eli, 250 A.D.2d 418, 419, 673 N.Y.S.2d 93 [1st Dept.1998] [...
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