People v. Robles

• Decision Date: 30 April 2010
• Citation: 72 A.D.3d 1520,899 N.Y.S.2d 780
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis R. ROBLES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 780
72 A.D.3d 1520

The PEOPLE of the State of New York, Respondent,
v.
Luis R. ROBLES, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 30, 2010.

899 N.Y.S.2d 781

Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

72 A.D.3d 1520

Defendant appeals from a judgment convicting

72 A.D.3d 1521

him, upon a jury verdict, of two counts of murder in the second degree (Penal Law § 125.25[1], [3] ). Contrary to the contention of defendant, Supreme Court properly admitted the testimony of one of his accomplices pursuant to the coconspirator exception to the hearsay rule. The People established a prima facie case of conspiracy " 'without recourse to the declarations [of that accomplice]' " ( People v. Caban, 5 N.Y.3d 143, 148, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Salko, 47 N.Y.2d 230, 238, 417 N.Y.S.2d 894, 391 N.E.2d 976, rearg. denied and remittitur amended 47 N.Y.2d 1010, 420 N.Y.S.2d 223, 394 N.E.2d 292). Indeed, the People established the existence of a conspiracy through "the acts and declarations of defendant" ( Salko, 47 N.Y.2d at 240, 417 N.Y.S.2d 894, 391 N.E.2d 976). Contrary to the further contention of defendant, the court properly allowed the accomplice to testify with respect to statements made by defendant to him following defendant's arrest "inasmuch as those statements constituted evidence of consciousness of guilt" ( People v. McCullen, 63 A.D.3d 1708, 1710, 881 N.Y.S.2d 577, lv. denied 13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019).

In addition, the testimony of the girlfriend of another accomplice (second accomplice) concerning a conversation between the second accomplice and defendant did not violate defendant's right of confrontation because the statements of the second accomplice during that conversation were not themselves testimonial in nature ( see People v. Adames, 53 A.D.3d 503, 862 N.Y.S.2d 80, lv. denied 11 N.Y.3d 895, 873 N.Y.S.2d 271, 901 N.E.2d 765; see generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177; People v. Goldstein, 6 N.Y.3d 119, 128-129, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834). We further note that the statements of the second accomplice also were...