People v. Simmons

• Decision Date: 17 May 2011
• Citation: 924 N.Y.S.2d 273,2011 N.Y. Slip Op. 04282,84 A.D.3d 1120
• Parties: The PEOPLE, etc., respondent,v.Derek SIMMONS, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1120
924 N.Y.S.2d 273
2011 N.Y. Slip Op. 04282

The PEOPLE, etc., respondent,
v.
Derek SIMMONS, appellant.

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

May 17, 2011.

Randall D. Unger, Bayside, N.Y., for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Karen Wigle Weiss of counsel), for respondent.

[84 A.D.3d 1120] Motion by the appellant for leave to reargue an appeal from a [84 A.D.3d 1121] judgment of the Supreme Court, Queens County (Lewis, J.), rendered November 19, 2008, which was determined by a decision and order of this Court dated February 1, 2011.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

ORDERED that the motion is granted, and upon reargument, the decision and order of this Court dated February 1, 2011 ( People v. Simmons, 81 A.D.3d 668, 917 N.Y.S.2d 218), is recalled and vacated, and the following decision and order is substituted therefor:

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis J.), rendered November 19,

[924 N.Y.S.2d 274]

2008, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In order for a statement to be admissible under the exception to the hearsay rule for declarations against penal interest, a four-part test must be satisfied: (1) the declarant must be unavailable to testify at the defendant's trial, (2) the declarant must have competent knowledge of the facts, (3) the declarant must have known at the time the statement was made that it was against his or her penal interest, and (4) there must be independent supporting proof indicating that the statement is trustworthy and reliable ( see People v. Ennis, 11 N.Y.3d 403, 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915, cert. denied 556 U.S. ––––, 129 S.Ct. 2383, 173 L.Ed.2d 1301; People v. Brensic, 70 N.Y.2d 9, 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Toussaint, 74 A.D.3d 846, 902 N.Y.S.2d 165; People v. Singh, 47 A.D.3d 733, 734, 849 N.Y.S.2d 606, cert. denied 555 U.S. ––––, 129 S.Ct. 570, 172 L.Ed.2d 429). Here, the Supreme Court properly declined to admit a statement offered by the defendant because the statement, made by a nontestifying witness, that the witness “did what he had to do,” was too...