People v. Green
| Decision Date | 29 March 1990 |
| Citation | 553 N.Y.S.2d 117,159 A.D.2d 432 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Benjamin GREEN, a/k/a Benjamin Greene, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
L. Sapakoff, White Plains, for respondent.
J.J. Weisenfeld, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and ASCH, ELLERIN and SMITH, JJ.
Judgment, Supreme Court, New York County (James Leff, J.) rendered March 15, 1989, after a jury trial, convicting defendant of murder in the second degree and criminal possession of a weapon in the second and third degrees and sentencing him to concurrent, indeterminate prison terms of from 25 years to life, 7 1/2 to 15 years and 3 1/2 to 7 years, respectively, is unanimously affirmed.
On February 8, 1987, defendant and Anthony Keith shot and killed Alan Howard while the victim's son, 13 year old Alan Hassel, stood at his side. Two other men stood nearby and encouraged the murder. The next day, defendant was arrested. Hassel and James Hilliard, a 9 year old who had witnessed the murder from a nearby park, identified defendant in a lineup as one of the killers. On May 3, 1988, Anthony Keith was arrested and both Hassel and Hilliard viewed him in a lineup. Only Hilliard identified Keith as the second killer.
Prior to trial, the prosecutor informed the court and defense counsel that Hilliard suddenly had a complete memory loss as to the crime itself and the subsequent proceedings. Cf., People v. Bayron, 66 N.Y.2d 77, 495 N.Y.S.2d 24, 485 N.E.2d 231. After an in camera questioning before the court and the attorneys, Hilliard professed not to remember the murder or the related proceedings. Over objection, Trial Term permitted the admission of Hilliard's Grand Jury testimony. The defense presented the transcripts of the in camera questioning as well as two taped interviews of Hilliard and a private investigator which described the murder and its circumstances. Hilliard was unaware that the conversations were taped. While Hilliard was made available for cross-examination at trial, the defense chose not to call him to the stand.
We are unpersuaded that the admission of Hilliard's Grand Jury testimony violated defendant's right to confrontation. While a defendant is assured the "opportunity for effective cross-examination" (Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15), a "successful cross-examination is not the constitutional...
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