People v. James
| Decision Date | 01 July 1999 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SAMUEL JAMES, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
David Lazer, Melville, and Joseph M. Campolo for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Peter Hinckley and Morrie I. Kleinbart of counsel), for respondent.
Defendant was convicted after a jury trial of two counts of perjury in the first degree (Penal Law § 210.15). The conviction was premised on defendant's denial, during a Grand Jury investigation, that he had been present at an October 20, 1990 meeting at which information pertaining to an upcoming New York City Transit Police Department promotional examination was illegally revealed to defendant and other potential examinees.
The following evidence was adduced at defendant's trial. Defendant, his partner and acquitted co-defendant David Tarquini, Lizette Lebron, Debra Gillians and Joyce Sellers were all New York City Transit Police officers assigned to District One under the command of Lieutenant Michael Gordon. These individuals, including Gordon, were also personal friends who socialized together. In 1990, Gordon was assigned to help draft an examination scheduled to be given near the end of the year to those Transit Police officers seeking promotion to the rank of sergeant. Defendant, Tarquini, Lebron and Gillians were all preparing to take the promotional examination.
On Friday, October 19 and Saturday, October 20, 1990, Gordon set up by telephone a meeting for late Saturday night to be attended by defendant, Lebron, Tarquini and Gillians at which the contents of the promotional examination would be disclosed. The October 20 telephone conversation between Gordon and Lebron was inadvertently recorded on Lebron's telephone without the knowledge of either party. At trial, Lebron testified that she was present at the October 20 midnight study session at Gordon's apartment, along with defendant, Tarquini and Gillians. At that meeting, Gordon distributed various questions that were ultimately included on the promotional examination and Lebron and the others each copied the questions, which they took with them.
On October 23, Lebron's live-in boyfriend, Transit Police Detective John Lohan, returned from a weekend away, discovered evidence of Lebron's October 20 visit to Gordon's home and, in questioning Lebron about it, was told that Gordon had made a sexual overture toward her that night. In an angry confrontation between Gordon and Lohan the next day, the October 20 cheating session was accidentally disclosed to Lohan. Immediately afterward, Gordon called Lebron, asking that she not turn over her notes of that session to Lohan but rather give them to defendant or Joyce Sellers. That call also was taped without the knowledge of either Gordon or Lebron.
The sergeant's examination was given on February 2, 1991. Defendant and the other District One officers who attended Gordon's study group, with the exception of Lebron, took the examination. Shortly thereafter, an investigation was launched concerning allegations of cheating on the test. When that investigation became public, Lebron delivered photocopies of the examination materials that she had copied, along with the tapes of her telephone conversations with Gordon, to the Department's Internal Affairs Bureau. Before turning over the audio recordings, however, Lebron taped over certain conversations which she claimed were personal in nature and irrelevant to the investigation. She also taped over at least one conversation with Gordon, allegedly by accident.
The February 1991 promotional examination was eventually invalidated, and a substitute examination was given on February 2, 1992. Defendant, Tarquini and Gillians all took the substitute examination and their rankings on the technical knowledge section of the examination dropped significantly below their performance on the 1991 examination. Defendant was called before the Grand Jury investigating the allegations of cheating and, after being granted immunity, testified that he had never been to Gordon's home in 1990, that he had never been to Gordon's home when Lebron was present and that he did not attend a study session at Gordon's home on October 20, 1990. He was subsequently indicted for six counts of perjury based upon those sworn denials.1
At trial, Gordon was called as a People's witness and invoked his privilege against self-incrimination. Over defendant's objections, the October 20 recorded conversation between Gordon and Lebron concerning the intended meeting of the exam takers at Gordon's home later that evening was admitted in evidence under the state of mind exception to the hearsay rule, and the October 24 recorded call in which Gordon asked Lebron to dispose of her notes was introduced as a declaration against penal interest.
On appeal, defendant's principal arguments for reversal focus on the claimed errors of the trial court in admitting in evidence against him the recordings of the October 20 and October 24 telephone conversations between Gordon and Lebron. He also claims that the trial court committed reversible error in refusing to give an adverse inference charge as a sanction against the People for Lebron's admitted destruction of audio-taped evidence. The Appellate Division affirmed defendant's conviction in all respects (247 AD2d 251), as do we.
On Friday, October 19, 1990, Lieutenant Gordon telephoned both defendant and Lizette Lebron. On Saturday, October 20, at about 10 P.M. he again called Lebron and, as previously noted, that conversation was recorded. First, Gordon reminded her of the meeting which had been set up in the previous telephone conversation, to which Lebron replied that he had not told her the time when it was to take place. Gordon then stated "I got Sam and Dave they're coming to my house around, between 11:00 and 12:00 o'clock tonight * * * [f]or what * * * I told you yesterday." Lebron asked for confirmation that the purpose of the meeting that night was "[s]o you're just going to tell me what to study and I'll study it?" Gordon replied affirmatively. Lebron testified that "Sam" referred to defendant and "Dave" was David Tarquini, both of whom were planning to take the sergeant's promotional exam.
The October 20 recorded conversation between Gordon and Lebron concerning the intended meeting of all of them at Gordon's home later that evening "to tell [them] what to study" was admitted into evidence against defendant under the state of mind exception to the hearsay rule. It was offered in this perjury prosecution of defendant to prove, contrary to defendant's Grand Jury testimony, that the planned meeting of defendant, Lebron and other officers to discuss the promotional exam questions, did in fact take place.
The seminal precedent on the admissibility of Gordon's October 20 statement is the celebrated 1892 decision of the United States Supreme Court in Mutual Life Ins. Co. v Hillmon (145 US 285).2 Because the issue is an important one of first impression in our Court, and because we disagree with the defendant's reading of Hillmon, a recital at length of the facts, issues and the holding in the case is necessary.
The plaintiff in Hillmon was the wife of John W. Hillmon, suing the insurers on three recently purchased policies covering his life. Her evidence of Hillmon's death was that in early March 1879 he left Wichita with a friend named Brown looking for land to purchase for use as a cattle ranch. Two weeks later, while encamped in Crooked Creek, Kansas, Hillmon was killed by the accidental discharge of Brown's gun. He was buried in a neighboring town. The defendant insurance companies introduced evidence that the body was not that of Hillmon, but of Frederick Walters, who had disappeared at the same time. The body was exhumed and Walters' relatives identified it as his.
At issue in the Hillmon case was the admissibility of two letters Walters wrote in early March 1879, to his sister and fiancée, in which he related his intention to accompany "a certain Mr. Hillmon," and "a man by the name of Hillmon" on a trip from Wichita. In Walters' letter to his fiancée he told her that Hillmon's purpose was "to start a sheep ranch, and as he promised me more wages than I could make at anything else I concluded to take it." The defendant insurers sought to introduce the letters in support of their defense that Hillmon induced Walters to accompany him to some remote place where he would be killed in order to provide a corpse on which to base Mrs. Hillmon's fraudulent claim to the proceeds of the policies insuring her husband's life.
The Hillmon trial court excluded the letters on the ground that they were hearsay. A jury found in favor of Hillmon's wife. The United States Supreme Court reversed and ruled that upon retrial, the letters would be admissible under the state of mind exception to the hearsay rule. The Court held that a declarant's extra-judicial statement of intention can be admitted into evidence under that exception "whenever the intention is of itself a distinct and material fact in a chain of circumstances" (145 US, at 295). In support of the admissibility of Walters' declarations, Justice Gray, writing for the Court, pointed to factors in the case of the kind that Wigmore and other scholars identify as justifying most common-law hearsay exceptions, i.e., "a circumstantial probability of trustworthiness, and a necessity, for the evidence" because of the unavailability of the declarant (5 Wigmore, op. cit., § 1420, at 251). Justice Gray wrote: "Letters from [Walters] to his...
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