People v. Simmons

• Decision Date: 19 February 1975
• Citation: 365 N.Y.S.2d 812,325 N.E.2d 139,36 N.Y.2d 126
• Parties: , 325 N.E.2d 139 The PEOPLE of the State of New York, Respondent, v. John SIMMONS, also known as John White, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 812

365 N.Y.S.2d 812

36 N.Y.2d 126, 325 N.E.2d 139

The PEOPLE of the State of New York, Respondent, v. John SIMMONS, also known as John White, Appellant.

Court of Appeals of New York.

Feb. 19, 1975.

Susan E. Hofkin and William E. Hellerstein, New York City, for appellant.

Nicholas Ferrarro, Dist. Atty. (Bruce E. Whitney, Howard Beach, of counsel), for respondent.

JASEN, Judge.

The principal issues presented for our review are, first, whether the admission into evidence at an identification hearing and at trial of the deceased victim's preliminary hearing testimony violates defendant's constitutional right of confrontation; and, second, whether the failure by the District Attorney, through inadvertence or negligence, to disclose exculpatory material in his control, constitutes a denial of due process to the defendant.

The defendant was convicted, after a jury trial, of robbery in the first degree. Subsequent to testifying against the defendant at a preliminary hearing, the 85-year-old victim of the crime, Harry Wankoff, died of causes not related to the burglary. At the identification hearing and at the trial, the court received in evidence, over defense counsel's objection, a transcript of Wankoff's preliminary hearing testimony. The testimony was to the effect that the defendant and two others forced their way into the Wankoff apartment, terrorized him and his wife for about an hour, and stole money and jewelry. The testimony continued that several days later, the defendant and another returned to the apartment and again gained forced entry. The defendant denied any part in the robbery and testified that at the time he was at his home or his mother's home about a block away from the victim's apartment.

Upon this evidence, the defendant was convicted. Subsequent to the trial, it was discovered that Wankoff's testimony before the Grand Jury concerning the identification of the two intruders who returned to his apartment a few days after the initial robbery did not correspond with Wankoff's preliminary hearing testimony on this point. The People now concede that, based on Wankoff's Grand Jury testimony, his preliminary hearing testimony identifying the defendant as one of the two intruders who returned to his apartment several days after the robbery was mistaken. ¹ Although the Grand Jury minutes were in the trial folder of the Assistant District Attorney assigned to the trial, the discrepancy was not discovered until after the trial. ²

Defendant contends that his right of confrontation was violated by the trial court when, pursuant to CPL 670.10, ³ the deceased victim's preliminary hearing testimony was read into evidence at the identification hearing and at trial. The application of this statute, defendant argues, violated his right to confront the only witness against him, since his counsel's opportunity to cross-examine the witness on the crucial issue of his identification of defendant was severely restricted at the preliminary hearing.

While the right of a defendant in a criminal case to confront adverse witnesses is guaranteed by the Federal and State Constitutions (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6; see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923), a well-recognized exception to this right authorizes the use at a later proceeding of a then unavailable witness' prior testimony provided that the defendant at the prior proceeding has been represented by counsel who has been afforded the opportunity to adequately cross-examine the witness (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; People v. Hines, 284 N.Y. 93, 29 N.E.2d 483; People v. Qualey, 210 N.Y. 202, 104 N.E. 138; People v. Malcolm, 35 A.D.2d 1037, 316 N.Y.S.2d 906; see, also, 5 Wigmore, Evidence (3d ed.), §§ 1395--1398, 1402).

Where there is an adequate opportunity to cross-examine the witness at the prior proceeding and especially if counsel for the defendant availed himself of that opportunity, the prior testimony bears sufficient 'indicia of reliability' and affords the trier of facts at the later proceeding a satisfactory basis for evaluating the truth of the prior testimony. (Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 33 L.Ed.2d 293; Dutton v. Evans, 400 U.S. 74, 89, 89 S.Ct. 862, 21 L.Ed.2d 770.)

Thus, the question posed is whether defense counsel had an opportunity to adequately cross-examine the witness at the preliminary hearing. It is necessary to scrutinize the prior proceeding to determine the adequacy of defense counsel's opportunity to cross-examine the witness on the issues for which the testimony is offered, since the focus of a preliminary hearing is ordinarily narrower than that of a trial. Here, the Judge presiding at the preliminary hearing restricted defense counsel's cross-examination to challenging 'reasonable cause' and to laying a foundation for an identification hearing. While this is proper for the purpose of a preliminary hearing, the effect of this ruling restricted defense counsel's ability to adequately test the reliability of complainant's identification of the defendant. By way of example, objections were sustained to questions bearing on the correctness of the identification, the extent of the lighting at the scene of the crime, a description of the defendant's clothing and facial features, and the complainant's visual acuity.

We believe that defense counsel's inability at the preliminary hearing to test the reliability of the witness' identification of the defendant constitutes sufficient basis to find that the defendant was denied the opportunity to adequately cross-examine the now deceased witness. Since this testimony was the sole basis for defendant's conviction, its admission into evidence was not harmless error.

That is not to say that an absent witness' preliminary hearing testimony may never be used at trial pursuant to CPL 670.10 (see Barber v. Page, 390 U.S. 719, 725--726, 88 S.Ct. 1318, 20 L.Ed.2d 255 Supra; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 Supra; see, also, Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 44 L.Ed. 1150; cf. West v. Louisiana, 194 U.S. 258, 266--267, 24 S.Ct. 650, 48 L.Ed. 965); it is enough to say that where, as here, the opportunity for cross-examination on a crucial issue is unduly restricted by the court, then the use of that testimony at trial is precluded by the confrontation clauses (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6).

Although we hold that the witness' preliminary hearing testimony must be excluded at a new trial as being violative of the confrontation clauses, we believe the second question posed--whether the failure by the District Attorney, through inadvertence or negligence, to disclose exculpatory material in his control, constitutes a denial of due process to the defendant--requires discussion.

We conclude that the People's inadvertent or negligent failure to disclose the erroneous identification of the sole witness against the defendant denied him due process of law.

There can be little doubt that the People have a duty to disclose exculpatory material in their...