People v. Ortiz

• Decision Date: 23 November 1981
• Parties: , 429 N.E.2d 794 The PEOPLE of the State of New York, Respondent, v. David ORTIZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 116

445 N.Y.S.2d 116

54 N.Y.2d 288, 429 N.E.2d 794

The PEOPLE of the State of New York, Respondent, v. David ORTIZ, Appellant.

Court of Appeals of New York.

Nov. 23, 1981.

Brian Sheppard and William E. Hellerstein, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Amyjane Rettew and Robert M. Pitler, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Defendant was convicted of three counts of murder in the second degree (Penal Law, § 125.25), one count of robbery in the first degree (Penal Law, § 160.15) and one count of burglary in the first degree (Penal Law, § 140.30). His convictions were affirmed by the Appellate Division, 441 N.Y.S.2d 758, without opinion. On this appeal, defendant seeks reversal of his convictions on the basis of the prosecutor's actions at the trial, which are claimed to have made him an "unsworn witness" against defendant. As we find no merit in defendant's argument, there should be an affirmance.

On December 2, 1977, three persons were murdered in their Lower East Side apartment. Defendant was arrested six months later for his part in these murders, which were believed to have occurred during the course of a robbery. After being advised of his Miranda rights, defendant initially denied having taken any part in the crimes. Some time later, however, defendant changed his mind and asked to speak to a homicide detective. Defendant then confessed to his participation in the robbery of the victims, explaining that his accomplice actually shot the three victims during the course of the crime. The detective took down the confession in longhand.

Some time after defendant made this statement, Assistant District Attorney Cooper and a stenographer arrived at the station house to record defendant's confession. This second confession was essentially the same as the first statement defendant had given to the detective, with some additional details.

Defendant's pretrial motion to suppress his confessions was denied. The defendant was tried before a jury, but a mistrial was ultimately declared when it was found that information not in evidence had been inadvertently shown to the jurors during their deliberations.

At the start of defendant's retrial, on the voir dire of the jury, Assistant District Attorney Cooper, who had taken defendant's second confession, asked the prospective jurors the following question: "Will any of you have any problem with the fact that I took the statement?" The following day, defense counsel moved for a mistrial, because the jury had been informed of the prosecutor's role in taking the confession, explaining that he had intended all along to request that this information be kept from the jury. ¹ Defense counsel argued that the fact that Mr. Cooper had taken the second confession created a risk that he would become an unsworn witness at trial. The court denied the motion, but declared its intention to keep references to Mr. Cooper's pretrial involvement to a minimum, inasmuch as the voluntariness of the confession would be an important issue at trial.

During the trial, Assistant District Attorney Cooper did make reference to the fact of his presence during defendant's second confession. On direct examination, he asked a witness, without defense objection, "did I or anybody else yell at the defendant?" In addition, again without objection, Mr. Cooper read the defendant's confession to the jury, including its references to himself as the questioner.

Defendant's convictions were affirmed by the Appellate Division, without opinion. On the present appeal, defendant argues that he was deprived of due process and the right to confront the witnesses against him when the prosecutor informed the jury that he had taken the stenographically recorded confession. As a result of the trial court's denial of defendant's motion for a mistrial, it is claimed that the prosecutor effectively became an unsworn witness against defendant.

We believe it appropriate to apply the rule announced in People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S.2d 119, 429 N.E.2d 797, as the present case involves the similar problem of the prosecutor's becoming an unsworn witness against defendant, although the case does not arise in precisely the same procedural posture. ² We begin by noting that the decision to grant or deny a motion for a mistrial is within the trial court's discretion (Hall v. Potoker, 49 N.Y.2d 501, 427 N.Y.S.2d 211, 403 N.E.2d 1210; People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 37, 394 N.E.2d 1134; Matter of Napoli v. Supreme Ct. of State of N. Y., 40 A.D.2d 159, 338 N.Y.S.2d 721, affd. 33 N.Y.2d 980, 353 N.Y.S.2d 740, 309 N.E.2d 137). That we will not interfere with this decision unless it amounts to an abuse of discretion is clear (Hall v. Potoker, supra).

We conclude that, on the showing made by defense counsel, the trial court did not abuse its discretion in denying the motion for a mistrial. ³ It was not established that the prosecutor would be called as a witness, nor...