People v. Pappalardo

• Decision Date: 14 November 1991
• Citation: 576 N.Y.S.2d 1001,152 Misc.2d 364
• Parties: The PEOPLE of the State of New York v. Joseph PAPPALARDO, Defendant.
• Court: New York Supreme Court

Page 1001

576 N.Y.S.2d 1001

152 Misc.2d 364

The PEOPLE of the State of New York v. Joseph PAPPALARDO, Defendant.

Supreme Court, Criminal Term,

Kings County, Part 4.

Nov. 14, 1991.

Richard Sgarlato, Staten Island, for defendant.

William Murphy, Dist. Atty., Richmond County by William E. Garnett, Asst. Dist. Atty., for plaintiff.

Lemole, Murphy & McCarthy by John M. Murphy, Staten Island, for Witness, Iris Lerman.

CAESAR CIRIGLIANO, Justice.

Joseph Pappalardo is charged with murder in the second degree for the shooting death of Vincent Guarna on June 15, 1989. Iris Lerman, the sole eyewitness to this homicide, is an indispensable witness for the People. Iris Lerman gave a detailed account of the shooting to a detective on the day of the homicide and testified fully before the grand jury. Now, nearly two years later, Lerman claims that she is suffering from amnesia and cannot remember what happened on the day of the homicide. She cannot remember giving statements to the authorities. Her memory is otherwise intact.

The People seek to introduce Iris Lerman's grand jury testimony on their direct case at trial and may do so providing they are able to clearly and convincingly establish that the witness is unavailable in that she is unlawfully refusing to testify and that the defendant is involved in procuring the witness' unavailability. See Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dept.1983).

The use of a witness' grand jury testimony under the guidelines established in Hellenbrand is not new. However, the witness' claim of amnesia raises a question that has not yet been decided by the courts of the state: Does amnesia render a witness unavailable, thus satisfying the prerequisite for the use of hearsay in the form of the witness' grand jury testimony?

A showing that this witness is unavailable is an absolute prerequisite for the admission of her grand jury testimony. The use of this hearsay evidence, like the use of other forms of hearsay such as former testimony, dying declarations, and declarations against interest, is premised upon the fact that the evidence is necessary for a proper resolution of the matter, but the testimony of the witness cannot be procured. See, e.g., People v. Settles, 46 N.Y.2d 154, 166-167, 412 N.Y.S.2d 874, 385 N.E.2d 612 (1978). See also Richardson, Evidence, Sect. 258, supplement to 10th ed, at 113-114 [Prince 10th ed]; McCormick, Evidence [3rd Ed.] (1984) Sect. 253, p. 753.

Although federal courts applying the Federal Rules of Evidence and state courts in other jurisdictions have held that amnesia satisfies the requirement of unavailability, I have found no New York cases that have considered and decided this question. See Fed.R.Evid. Rule 804(a)(3); United States v. Garris, 616 F.2d 626 (2d Cir.1980), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119; United States v. Palumbo, 639 F.2d 123 (3rd Cir.1981), cert. denied 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90; Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979); Commonwealth v. Jones, 344 Pa.Super. 420, 496 A.2d 1177 (1985); State v. Young, 20 Ohio App.3d 269, 485 N.E.2d 814 (1984).

In New York, the cases have traditionally listed "death, absence from the jurisdiction, and invocation of privilege as establishing unavailability, see, e.g., People v. Shortridge, 65 N.Y.2d 309, 313, 491 N.Y.S.2d 298, 480 N.E.2d 1080 (1985)." Richardson, Evidence, Sect. 258, supplement to 10th ed, at 113-114 [Prince 10th ed]. However, commentators have suggested that other factors creating "practical unavailability" should also be able to satisfy the unavailability requirement. Id. See also Fisch on New York Evidence [2d Ed.] (1977) Sect. 893, p. 521.

The Second Department has recently endorsed this view, finding that other factors do create "practical unavailability" and holding that this determination should be made on a case-by-case basis. People v. Carpenito, 171 A.D.2d 45, 574 N.Y.S.2d 218 (2d Dept.1991).

In this case, Iris Lerman has adamantly and repeatedly insisted that she is unable to recall the events surrounding this homicide. She has maintained this position though threatened with contempt and imprisonment. She reiterated her claim of amnesia even after being offered the inducement of complete immunity from prosecution.

My assessment of this witness, who testified at this hearing on a number of occasions, is that she will not, under any circumstances, retreat from her claim of amnesia and will not allow her testimony to be taken. I therefore find that the People have established that the testimony of this witness is unavailable.

However, this finding does not end the inquiry. Under the guidelines formulated in Hellenbrand where, as here, a witness is present in the jurisdiction and amenable to court process, the People must do more than merely show that the witness' testimony is unavailable. The People must show that the witness' refusal to testify is unlawful. Holtzman v. Hellenbrand, supra, 92 A.D.2d at 414, 460 N.Y.S.2d 591.

A refusal to testify based upon a claim of amnesia is unlawful only if the amnesia is feigned. See, e.g., Matter of Second Grand Jury v. Cirillo, 12 N.Y.2d 206, 237 N.Y.S.2d 709, 188 N.E.2d 138 (1963) (feigned loss of memory constitutes a wrongful refusal to testify); People v. Schenkman, 46 N.Y.2d 232, 237, 413 N.Y.S.2d 284, 385 N.E.2d 1214 (1978) (a witness who feigns memory loss in order to avoid giving testimony is guilty of criminal contempt).

Accordingly, the People must, as a threshold matter, demonstrate that Iris Lerman is feigning memory loss. If the People are then able to show that the defendant is involved in this unlawful refusal to testify through "knowledge, complicity, planning or in any other way." Holtzman v. Hellenbrand, supra, 92 A.D.2d, at 414, 460 N.Y.S.2d 591, the witness' grand jury testimony is admissible because the defendant, by his wrongful conduct, is deemed to have waived his right to confront this witness and to object to the hearsay nature of this testimony. Id. See also United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982), cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343; Steele v. Taylor, 684 F.2d 1193 (6th Cir.1982),cert. denied, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 reh. denied, 461 U.S. 940, 103 S.Ct. 2113, 77 L.Ed.2d 316.

Findings and Conclusions as to the Witness' "Amnesia"

I conducted a lengthy hearing in this matter. ^* Based upon all of the credible evidence adduced at this hearing, I find that Iris Lerman's professed amnesia is nothing other than a subterfuge she is employing in order to avoid testifying in this case. Several factors strongly support this conclusion.

Most significant is the fact that this witness did not reveal her condition until she was compelled to appear and testify at this hearing. This is a witness who cooperated fully with the prosecution at the commencement of this investigation; gave lengthy, detailed statements to the police, the grand jury and the court; maintained a close relationship to the assistant assigned to prosecute the case, confided her fears to the Assistant District Attorney and sought her help in insuring that the defendant would not harm her.

Under these circumstances, it is inconceivable to this court that a genuine loss of memory would not have been divulged immediately to the Assistant District Attorney and the court. Instead, with the defendant's assistance, she retained an attorney and effectively shielded herself from having to discuss this case with the prosecution.

Lerman then consulted with a psychiatrist in an effort to give her claim of amnesia a plausibility that it otherwise lacked. Indeed, her attorney requested a letter from the psychiatrist in an effort to document her treatment.

It is very clear to this court, however, that Iris Lerman did not seek the advice of a psychiatrist for the purpose of being treated. She did not pursue the course of treatment recommended by the doctor and saw him only at her convenience when it seemed necessary to give the impression that she was continuing treatment. Indeed, she visited the doctor for the first time in seven months shortly after this court announced that it would receive additional evidence concerning her unlawful refusal to testify.

The very selective nature of this witness' amnesia provides further evidence that her amnesia is feigned. This court finds it most incredible that this witness was able to give detailed statements about this homicide in the immediate aftermath of this traumatic event and at a time when she professed to be in fear of the defendant and yet was unable to recall the events of this case and only those events that relate to this case, long after the fear and trauma had undoubtedly been dissipated by the passage of time and her renewed relationship with the defendant.

Moreover, I have had an extensive opportunity to observe this witness. I observed her demeanor very closely and listened to her testimony very carefully. Her testimony as to her "amnesia" simply did not ring true. It was hollow, wooden and very obviously rehearsed.

In sum, whether I consider the psychiatrist's testimony, the differential diagnosis contained in the psychiatric literature, or a plain common sense evaluation of the witnesses and the evidence, the conclusion is inescapable that this witness is feigning memory loss.

Accordingly, I hold that the People have clearly and convincingly established that this witness is feigning memory loss and is thereby unlawfully refusing to testify.

Findings and Conclusions as to The Defendant's Wrongdoing

The sole remaining question is whether the proof adduced at the hearing clearly and convincingly establishes that this defendant was involved in the witness' unlawful refusal to testify through "knowledge,...