People v. Ortiz
| Decision Date | 05 May 1998 |
| Citation | 672 N.Y.S.2d 327,250 A.D.2d 372 |
| Parties | , 1998 N.Y. Slip Op. 4288 PEOPLE of the State of New York, Appellant, v. Julio ORTIZ, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Stanley R. Kaplan, for Appellant.
Elliot H. Fuld, for Defendant-Respondent.
Before MILONAS, J.P., and ROSENBERGER, NARDELLI, TOM and SAXE, JJ.
Order, Supreme Court, Bronx County (Dominic Massaro, J.), entered October 7, 1997, which granted defendant's motion pursuant to CPL 330.30 to set aside a jury verdict rendered March 13, 1997, finding him guilty of robbery in the first degree, unanimously reversed, on the law, the jury verdict reinstated, and the matter remanded for sentencing.
The trial court erred in holding that its evidentiary ruling at trial, precluding proposed cross-examination of prosecution witness Omer Hodzic regarding inconsistent statements or omissions of material facts, was error of a type that required reversal as a matter of law.
At trial, the testimony of the victims, Esperanza Bautista and her sister Juana Bautista, established that at approximately 8:30 a.m. on October 29, 1994, after hearing a knock on the door of their apartment, Esperanza looked through the peep hole and saw two men standing outside the door, one light-skinned and the other dark-skinned, dressed to look like police. The light-skinned man displayed a police badge and told her to open the door because they were looking for someone named Gonzalez. When she opened the door, the light-skinned man pushed his way in, pointed a gun at her and demanded "the drugs and the money". The light-skinned man hit Esperanza with his gun and threatened to kill her if she did not find the money. The victims were tied up and their heads were covered, and the apartment was ransacked. The victims later determined that jewelry and cash were taken.
Although neither sister was able to identify the robbers, their testimony dovetailed with that of Omer Hodzic, the building superintendent, who observed the portion of the events occurring outside the apartment, and was able to positively identify defendant. Specifically, Hodzic testified that his apartment, like that of the victims, is on the second floor of the building. It was established through the use of photographs that Hodzic's door was on the same side of the hall and one door (10 to 15 feet) to the right of the victims' apartment. Hodzic stated that he saw a dark-skinned man and defendant, whom he described as light-skinned, get out of a white car parked in front of the building and enter the building's vestibule. Hodzic returned to his apartment for a moment, and when he left his apartment he saw defendant standing in front of the door to the victims' apartment and saw the dark-skinned man coming up the stairs.
Hodzic became suspicious and went back to his apartment a second time. Through the peep hole he saw defendant knock on the victims' door and hold up his hand with his palm facing the door; he then heard defendant say "Police". Hodzic stated at trial that he then left to answer his telephone but quickly ended the conversation and resumed looking out of the peep hole in his door. In response to specific questioning from the prosecutor and the court, Hodzic stated that he saw defendant enter the apartment. Because he felt something was going to happen, he went straight to his window and took down the license plate of the white car--which was ultimately found to be registered to defendant. He then went downstairs to double check the license plate number and again encountered defendant, who was leaving the building as Hodzic re-entered. Hodzic also saw the dark-skinned man. According to Hodzic, the dark-skinned man was coming down the steps from the second floor, but reversed direction and walked up the stairs to an upper floor when he saw Hodzic.
Following his conviction at trial, defendant moved to set aside the verdict pursuant to CPL 330.30, contending that the court improperly prohibited defense counsel from impeaching Hodzic based upon two different prior statements. In one, made to police shortly after the crime, he apparently failed to state that he saw defendant enter the apartment; in the other, testimony given before the Grand Jury, Hodzic was asked if he saw the victims' door open and he responded "I didn't see the door open because right at that moment when he put up his hand and said police, I went to answer my phone."
With respect to the statement made by Hodzic to the police,
a witness may not...
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