People v. Tapia

• Decision Date: 02 April 2019
• Docket Number: No. 19,19
• Citation: 124 N.E.3d 210,33 N.Y.3d 257,100 N.Y.S.3d 660
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos TAPIA, Appellant.
• Court: New York Court of Appeals Court of Appeals

33 N.Y.3d 257

124 N.E.3d 210

100 N.Y.S.3d 660

The PEOPLE of the State of New York, Respondent,

v.Carlos TAPIA, Appellant.

No. 19

Court of Appeals of New York.

April 2, 2019

OPINION OF THE COURT

DiFIORE, Chief Judge.

The issue presented in this appeal is whether a portion of a testifying witness's prior grand jury testimony was properly admitted as a past recollection recorded to supplement his trial testimony. We hold that the trial court did not abuse its discretion in admitting the grand jury testimony as a past recollection recorded as there was a proper foundation for receipt of the evidence. We further hold that, since the declarant of that out-of-court statement was a live witness at trial, defendant's Sixth Amendment right to confrontation was not violated.

I.

At trial, Sergeant Charlie Bello¹ testified that, on November 2, 2008, he was driving Lieutenant James Cosgrove back to the police precinct at about 3:30 a.m. when he saw defendant "body slam" the victim in the street outside a bar and drag him between two parked cars. The officers exited their vehicle and, while Cosgrove pulled defendant off the victim, Bello stopped another man who was running toward the altercation. Bello testified that, after Cosgrove separated the victim from defendant, he noticed the victim was "bleeding profusely from his face and neck." Defendant and the other man were arrested.² Bello observed a shattered beer bottle on the ground where the victim had been assaulted, but did not collect the pieces of glass as evidence.

The victim sustained multiple injuries consistent with being cut by a dangerous instrument. He testified at trial that he was attacked from behind – punched and kicked – and only realized he was bleeding just before the police intervened. The victim identified defendant as one of his assailants. The physician who treated the victim at the emergency room testified that the five lacerations to the victim's face and neck were "consistent with being struck with a sharp cutting instrument," such as a piece of glass. The physician explained that the victim's neck lacerations were "potentially life threatening" because of their proximity to the carotid artery and the vena cava.

During the People's case, defense counsel timely notified the court and the People that she would be seeking a missing witness charge if Lieutenant Cosgrove was not called as a witness. In response, the People produced Cosgrove, who had retired from the police department. Because Cosgrove could not independently recall the incident, the People, outside the ken of the jury, sought to have his prior grand jury testimony admitted as a past recollection recorded. Defense counsel objected, asserting that Cosgrove could not be cross-examined due to his claimed lack of memory and that admitting the grand jury testimony would therefore violate defendant's Sixth Amendment right to confrontation. Counsel also contended that the grand jury testimony was inadmissible under CPL 670.10, which governs the use of prior testimony of a "witness ... unable to attend" trial. The People indicated that, although the witness was available, if the missing witness charge was denied, Cosgrove would not take the stand. Defense counsel declined to withdraw her request for a missing witness charge, inconsistently asserting that Cosgrove was available for purposes of the latter charge but, due to his memory loss, was unavailable for confrontation purposes. The court found that the witness was available for confrontation as "[h]e is literally subject to cross-examination by being on the witness stand under oath and passed to [the defendant] as a witness for cross[-]examination." The trial court held that, if the People established the appropriate evidentiary foundation, the prior grand jury testimony would be admissible as a past recollection recorded, because Cosgrove was in attendance and subject to cross-examination.

The People called Cosgrove to the stand, who testified that on November 2, 2008 he had been working an 11:00 p.m. to 7:45 a.m. shift, in uniform, with his partner, Officer Bello. Based on his review of police paperwork, Cosgrove was also able to testify that he assisted in arresting two individuals at the scene, but could not independently recall the circumstances leading to defendant's arrest. The People then sought to introduce Cosgrove's grand jury testimony as a past recollection recorded. Cosgrove testified that he appeared before the grand jury just days after the offense, that the event was fresh in his mind at that time, that he testified truthfully and accurately before the grand jury and that his review of the stenographic transcript of his prior testimony did not refresh his present recollection of the events. Finding the appropriate evidentiary foundation established, the court allowed a portion of Cosgrove's testimony to be read into the record.

Cosgrove's grand jury testimony, which was consistent with Bello's trial testimony, was brief and not particularly detailed. The testimony added the fact that Cosgrove saw defendant kick the victim in the head. The court immediately gave the jury the limiting instruction that "a memorandum of a past recollection is not of itself independent evidence of the facts contained therein. It is auxiliary to the testimony of the witness."

On cross-examination, defense counsel questioned Cosgrove about several routine matters including his partnership with Officer Bello and the circumstances surrounding his grand jury testimony. Cosgrove testified that he had been to the area of the assault, which was located close to the police precinct, on various occasions "to intervene in bar fights." Cosgrove readily admitted that he did not recall the details of those particular altercations, explaining that he "did midnights for most of [his] career and a fight outside of a bar [did not] really stick out in [his] mind [because he] responded to a lot of them." Defense counsel focused on the witness's lack of present recollection but also elicited that Cosgrove's grand jury testimony that he had been a passenger in a "parked police department vehicle" was probably supposed to read "marked" police vehicle. In addition, Cosgrove admitted that he did not review a copy of the grand jury minutes other than in preparation for trial and that, based on his lack of independent recollection, he could not swear that the official court reporter's transcription of his testimony – although certified – was accurate.

The following day, after the close of evidence, defendant moved to strike Cosgrove's grand jury testimony, asserting that the officer's inability to independently verify the accuracy of the stenographer's transcription removed the foundation for itsadmissibility as a past recollection recorded. In response to the People's argument that the motion was untimely, the court initially observed that it could still give a curative instruction but, ultimately held that defendant's argument was "untimely and thereby is waived." The court went on to reject the argument on the merits.

Three counts of the indictment were submitted in the alternative to the jury under a theory of acting in concert – assault in the first degree, attempted assault in the first degree and assault in the second degree. In its final charge, the court expounded upon how the jury should consider Cosgrove's grand jury testimony as a past recollection recorded. In addition to a second instruction that the evidence of past recollection recorded was auxiliary to the witness's trial testimony and not independent evidence of the facts, the jury was further instructed that

"you may consider the witness had knowledge at the time the testimony was taken of the events he testified to and whether he saw the reported testimony at or near the time the testimony was taken and recognized it at the time as containing a true statement of facts within his own knowledge.

‘‘You may consider the witness's testimony on this issue in deciding what weight to give the statements contained in the former testimony. You are at liberty to accept as much as you think accurate and disregard the rest or accept or disregard it in its entirety."

The jury acquitted defendant of assault in the first degree, but convicted him of attempted assault in the first degree.

The Appellate Division affirmed, holding that it was a proper exercise of discretion for the trial court to admit Lieutenant Cosgrove's grand jury testimony as a past recollection recorded ( 151 A.D.3d 437, 439, 56 N.Y.S.3d 78 [1st Dept. 2017] ). The Court held that the People laid a proper foundation for the admission of the testimony and that there was no violation of the Confrontation Clause because Cosgrove testified at trial and was subject to cross-examination. The Court also held that the evidence was legally sufficient to support the conviction. Two Justices dissented in part and would have reduced defendant's conviction to attempted second degree assault, on the ground that the evidence was not legally sufficient because it did not establish beyonda reasonable doubt that defendant, alone or acting in concert, cut the victim with a dangerous instrument. One of the dissenting Justices granted defendant leave to appeal and we now affirm.³

II.

At trial, when a witness testifies in the presence of defendant and before the trier of fact, the evidentiary doctrine of past recollection recorded allows "a memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection [to] be received in evidence as a supplement to the witness's oral testimony" People v. Taylor, 80 N.Y.2d 1, 8, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992]. The foundational requirements for the admissibility of a past recollection recorded are: 1) the witness must have observed the matter recorded; 2) the recollection must have been fairly fresh at the time when it was recorded; 3) the witness must currently be able to testify...