People v. Raja

• Decision Date: 24 November 1980
• Citation: 77 A.D.2d 322,433 N.Y.S.2d 200
• Parties: The PEOPLE, etc., Respondent, v. Tonin RAJA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 200

433 N.Y.S.2d 200

77 A.D.2d 322

The PEOPLE, etc., Respondent, v. Tonin RAJA, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 24, 1980.

Bronstein & Davis, Mineola (Jay J. Davis, Mineola, on brief), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Michael T. Conacchia, III, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

Before HOPKINS, J. P., and RABIN, COHALAN and WEINSTEIN, JJ. WEINSTEIN, Justice.

Late in the evening of September 7, 1978, Suffolk County police officers responded to a report of a suspicious vehicle parked on a residential street in Smithtown. Upon arriving at the scene, the officers found the defendant, Tonin Raja, sitting in a parked automobile. In the car with him were Gloria Perez, his girlfriend (by the time of trial, his fiancee), and Olindo Caporale. The officers also observed one John Brecevich sitting in a van parked nearby. The officers made some preliminary inquiries as to these individuals' purpose in being where they were.

A detective spotted two handguns on the lawn of a residence some eight feet from the car in which Raja, Perez and Caporale were sitting. The officers thereupon took all four individuals into custody.

Raja was tried on a charge of criminal possession of a weapon in the third degree. The only direct evidence offered at trial to connect Raja with possession of the handguns found on the lawn were written, signed statements given to the police the morning after the arrest by Perez and Brecevich, and admitted at trial as exhibits. The contents of these statements were highly inculpatory as to Raja. Perez stated that on the night in question, the defendant "had a brown and black gun with him. It was tucked in his belt on the left side." Brecevich said "Olindo and Tonin both had guns with them in the car. I think one was a revolver and one an automatic * * * I have been shown two guns by Det. Heinssen, one revolver and one brown automatic. Both of the guns-seem to be the guns that Olindo and Tonin had when we left the City." Raja was ultimately convicted of the crime charged.

Since the propriety of the court's ruling allowing these statements to be admitted is the central issue on this appeal, it would be appropriate to set forth further facts concerning the circumstances of their admission. Gloria Perez testified on direct examination that she did not recall seeing any guns on the night of September 7, 1978. She was then shown the written statement she gave to the police, but after reading it, stated that it did not refresh her recollection. She admitted that she answered the questions upon which the statement was based, that she intended those answers to be accurate and honest at the time, and that she signed the statement twice and initialed it six times. However, she maintained that she never actually read it; rather, her testimony was that she was "very upset" at the time, and that she "was told that if (she) signed it, that (she) could go home and not stay in jail. That's why (she) did it." Subsequently, during cross-examination, Ms. Perez maintained that she did not know whether the statement was indeed accurate, and that although she recognized her signature, she did not recall signing the statement.

At this point, the court orally announced certain findings of fact and rulings of law: "that she did make this writing; that she signed it, and she initialed it; that she said it was true at the time, and now she has no present recollection of the events, but you can still show it to her for the purpose of refreshing her recollection * * * and then following that, if she doesn't, then you can mark it as a Court Exhibit * * * and you can read it to the jury." After Perez again testified that the statement did not refresh her recollection, but that her answers, upon which the statement was based, were truthful and honest to the best of her knowledge, the statement was admitted and read to the jury.

The circumstances surrounding the admission of Brecevich's statement were not substantially different. He also testified that he did not recall seeing guns on the night in question, and after reading his statement, stated that it did not refresh his recollection. However, he admitted signing the statement, which he "imagine(d)" to be an accurate and honest statement of what he knew at the time. He stated that one factor that induced him to sign the statement was the threat of prosecution if he did not sign it. His statement was also ruled admissible, and read to the jury.

At this juncture, it would be well to review the pertinent legal principles upon which the disposition of this appeal must turn. If a witness, not necessarily a party to an action, has made, prior to trial, a written or oral statement contrary to his testimony at trial, there are essentially two devices whereby the earlier statement may be introduced at trial without running afoul of the hearsay rule. The less complex method is simply to introduce the earlier statement as a prior inconsistent statement (see People v. Di Napoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449; 65 N.Y.Jur., Witnesses § 74). However, when this procedural route is chosen, the statement may be used solely to impeach the credibility of the witness; it may not be offered as substantive proof of the truth of its contents (see People v. Freeman, 9 N.Y.2d 600, 217 N.Y.S.2d 5, 176 N.E.2d 39; Matter of Roge v. Valentine, 280 N.Y. 268, 20 N.E.2d 751). In the case at bar, the statements of Perez and Brecevich were used as proof, indeed the only direct proof, of Raja's commission of a felony; clearly, then, they cannot be classified as mere prior inconsistent statements. Rather, their admissibility will be determined by application of the more demanding rules associated with the concept of past recollection recorded.

The exact formulation of the rules regarding past recollection recorded has been stated in many different ways and by many different authorities (see 3 Wigmore, Evidence (Chadbourn rev.), §§ 744-748; 22 N.Y.Jur., Evidence, § 507; Richardson, Evidence (Prince, 10th ed.), §§ 469-473; 1 Bender's New York Evidence, § 26.05(1)). The principle of past recollection recorded has been part of the common law of this State for well over a century (see Cole v. Jessup, 10 N.Y. 96; Halsey v. Sinsebaugh, 15 N.Y. 485; Howard v. McDonough, 77 N.Y. 592). Essentially, the principle is as follows: when a witness is either unable or unwilling to testify as to the contents of a memorandum, written by him or at his direction prior to trial, the memorandum may be shown to the witness. If his memory is thereby refreshed, he may testify orally to its contents, and the memorandum itself retains no value as evidence (this is commonly referred to as "present recollection revived"). If, however, even after reading the memorandum, the witness remains unable or unwilling to testify as to its contents, the memorandum itself is admissible as substantive evidence of the truth of its contents, provided that otherwise competent testimony establishes that (1) the witness once had knowledge of the contents of the memorandum, (2) the memorandum was prepared by the witness, or at his direction, (3) the memorandum was prepared when the knowledge of the contents was fresh in the...