People v. Hamilton

• Decision Date: 09 February 1987
• Citation: 511 N.Y.S.2d 912,127 A.D.2d 691
• Parties: The PEOPLE, etc., Respondent, v. Derrick HAMILTON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 912

511 N.Y.S.2d 912

127 A.D.2d 691

The PEOPLE, etc., Respondent, v. Derrick HAMILTON, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 9, 1987.

George Sheinberg, Brooklyn, for appellant.

Derrick Hamilton, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Sarah G. Noll and Steven H. Kessler, of counsel), for respondent.

Before MOLLEN, P.J., and LAWRENCE, WEINSTEIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered December 7, 1983, convicting him of murder in the second degree, manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court, which, after a hearing, granted the People's motion to use the Grand Jury testimony of one Patricia Lee as direct evidence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

On appeal, the defendant contends that he was denied his 6th Amendment right to confront the witnesses against him when the trial court, after a hearing, ruled that the People could use the Grand Jury testimony of one Patricia Lee as direct evidence against him at the trial. Lee gave incriminating testimony against the defendant before the Grand Jury, but prior to the trial she informed the defendant's attorney that her Grand Jury testimony was not true and had been the result of coercion by the police. Upon being questioned by the court, Lee stated that she would invoke her Fifth Amendment right against self-incrimination if called to testify at the trial. The People alleged that Lee's refusal to testify was the result of misconduct by or on behalf of the defendant. Having found this to be a possibility, the trial court granted the People's request to conduct a hearing pursuant to United States v. Mastrangelo, 2d Cir., 693 F.2d 269, cert. denied 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343 and Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591, to determine whether the defendant waived his right to confrontation by allegedly causing Lee's unavailability to testify at the trial.

At the conclusion of the hearing, the trial court, recognizing that the prosecution bore the burden of proving by clear and convincing evidence that misconduct by or on behalf of the defendant caused Lee's refusal to testify, found that while "[t]here's a lot of suspicion, a lot of innuendo, a lot of inferences * * * The Court has heard no relevant testimony. The Court is not convinced; as a matter of fact, the proof here is far from clear and convincing" . Thus, the prosecution's motion to use Lee's Grand Jury testimony as direct evidence at the trial was denied.

When the trial court convened the following day, the Trial Judge stated, outside the presence of the jury, that he was "troubled" by his ruling of the previous day regarding the admissibility of Lee's Grand Jury testimony. The Trial Judge explained that he had reviewed the prior hearing testimony of Lee and had come to the conclusion that Lee must have been "tampered" with by the defendant or someone on his behalf. Accordingly, the trial court ruled that the prosecution would be permitted to utilize Lee's Grand Jury testimony as direct evidence against the defendant. At defense counsel's request, the court stated that it would allow the Mastrangelo hearing to be reopened during the course of the trial to permit counsel to further explore the possibility of police misconduct.

During the course of the trial, the hearing was reopened and the court heard testimony from Detective Adrian Rosario and the Assistant District Attorney assigned to prosecute the case. The detective denied that the police coerced Lee into incriminating the defendant before the Grand Jury. The Assistant District Attorney also testified that Lee had been upset when a subpoena was served at her mother's house in the presence of her sister, who was a former girlfriend of the defendant. According to the Assistant District Attorney, Lee apparently expressed some fear of possible reprisals from the defendant. Significantly, however, Lee testified for a second time during the Mastrangelo hearing and again denied that any threats were ever made to her by the defendant or his family. Lee stated that she incriminated the defendant before the Grand Jury because of threats from the police. Following the reopened hearing, the trial court ruled that it would adhere to its determination permitting the prosecution to introduce Lee's Grand Jury testimony as direct evidence against the defendant. We disagree with the trial court's ruling and accordingly reverse.

It is true that "great weight must be accorded the determination of the hearing court with its particular advantages of having seen and heard the witnesses (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), and that determination should not be disturbed where it is supported by the record" (People v. Gee, 104 A.D.2d 561, 479 N.Y.S.2d 267). However, at bar, the hearing court's ultimate determination cannot be sustained since it clearly is not supported by the evidence, but rests solely upon speculation and conjecture which, at best, may rise to the level of suspicion as to the defendant's involvement in Lee's refusal to testify. As the hearing court initially noted, however, suspicion does not constitute the clear and convincing evidence which is necessary in order to find a waiver by the defendant of his right to confrontation (see, Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591, supra ). Circumstantial evidence, where present, may be sufficient to sustain a finding that a defendant or someone on his or her behalf has been involved in tampering with a witness so as to justify the admissibility of the witness's prior Grand Jury testimony. Here, however, the hearing court offered no evidentiary basis for recalling its original decision, and this court is unable to find clear and convincing evidence in the record to support that ruling. While the People and the dissent make much of the fact that there was proof of contact between Lee and the defendant's family, the record indicates that such contact was initiated by Lee, and she emphatically denied that any threats were ever made by the defendant or any member of his family.

In sum, the fact that the defendant derives substantial benefit from the witness's refusal to testify, combined with the lack of evidence of tampering by the police, does not constitute clear and convincing evidence that misconduct by or on behalf of the defendant caused that refusal. The fact remains that there was no affirmative evidence whatsoever to support a finding that either the defendant or any member of his family tampered with this witness. Thus, the court erred in finding a waiver of the defendant's right to confrontation and in granting the People's request to use Lee's Grand Jury testimony as direct evidence at the trial. Contrary to the People's assertions on appeal, this error cannot be deemed harmless as the proof of the defendant's guilt is far from overwhelming, and it cannot be said that there is no reasonable possibility that Lee's Grand Jury...