People v. Prince

• Decision Date: 17 December 1984
• Citation: 483 N.Y.S.2d 57,106 A.D.2d 521
• Parties: The PEOPLE, etc., Respondent, v. Errol PRINCE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 57

483 N.Y.S.2d 57

106 A.D.2d 521

The PEOPLE, etc., Respondent, v. Errol PRINCE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 17, 1984.

Howard Finkelstein, New York City, for appellant and appellant pro se.

John J. Santucci, Dist. Atty., Kew Gardens (David M. Berck, Fresh Meadows, of counsel), for respondent.

Before TITONE, J.P., and WEINSTEIN, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 31, 1979, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The only issue of substance on this appeal is whether CPL 670.10 permits former testimony taken at a preliminary hearing to be introduced into evidence at a subsequent trial on a related, but separate, crime when the statutory conditions precedent have either been satisfied or have been waived. We hold in the affirmative.

Subdivision 1 of CPL 670.10, which is largely a codification of common-law principles (People v. Arroyo, 54 N.Y.2d 567, 569, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. den. 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855; but cf. People v. Harding, 37 N.Y.2d 130, 371 N.Y.S.2d 493, 332 N.E.2d 354), permits testimony given by a witness to "be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness * * * cannot with due diligence be found" (emphasis supplied). There can be little doubt that the proceedings are related and, hence, the former testimony was admissible (see People v. Moshell, 287 N.Y. 9, 38 N.E.2d 108; Richardson, Evidence §§ 277, 278; 5 Wigmore, Evidence §§ 1373, 1375; Ann. 159 A.L.R. 1240).

It is evident from a review of the minutes of the preliminary hearing that defendant was given ample opportunity for cross-examination. Consequently, there was no denial of any right of confrontation (People v. Arroyo, supra; cf. People v. Simmons, 36 N.Y.2d 126, 365 N.Y.S.2d 812, 325 N.E.2d 139). Moreover, we note that defendant did not challenge the use of the former testimony either on the ground that the People failed to exercise due diligence to locate the witness or that the charge which formed the predicate for the judgment of conviction now before us was not pending at the time of the preliminary hearing. Such issues are thus deemed waived (cf. People v. Fish, 125 N.Y. 136, 26 N.E. 319).

The testimony taken at...