People v. Thomas

• Decision Date: 21 October 1986
• Citation: 68 N.Y.2d 194,507 N.Y.S.2d 973,500 N.E.2d 293
• Parties: , 500 N.E.2d 293 The PEOPLE of the State of New York, Respondent, v. Dennis THOMAS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 973

507 N.Y.S.2d 973

68 N.Y.2d 194, 500 N.E.2d 293

The PEOPLE of the State of New York, Respondent, v. Dennis THOMAS, Appellant.

Court of Appeals of New York.

Oct. 21, 1986.

Andrew C. Fine, Charles L. Finke and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Ann M. Donnelly and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

Statements contained in a plea allocution of a codefendant may, in limited circumstances, be received in evidence as a declaration against penal interest to establish an element of the crime charged against defendant.

After two chain-snatching incidents on 44th Street near Seventh Avenue in Manhattan, defendant and his codefendant (James Rucker) were indicted for robbery and attempted robbery in the second degree. One month later, while incarcerated and awaiting trial, Rucker agreed to plead guilty to attempted robbery in satisfaction of both charges and in consideration of a promise of a deferred sentence and probation. In his plea allocution, Rucker described how both crimes were accomplished, including the fact that he had held the victims while defendant took their chains. His plea was accepted and he was paroled pending sentence.

At defendant's trial six months later, Barry Stelboum, Carolyn Berk and Steven Levy, three high school students, testified that they had come into Manhattan to attend a matinee, and were walking on 44th Street near Seventh Avenue when a tall man stopped Stelboum, stepped on his foot, and pulled a gold chain from his neck. Both Levy and Berk (who identified defendant as the tall man) testified that during the incident they observed a second, shorter man standing behind Stelboum; after defendant took Stelboum's chain, he walked past them and the shorter man followed. Berk testified that she stopped to call the police, and then watched defendant and the shorter man approach another individual. Again she saw the shorter man stand behind the victim with arms extended while defendant grabbed the chain from his neck. The second victim, however, shouted at defendant, punched him in the face, reclaimed his chain and ran away. Berk saw defendant and the shorter man walk away, talking together as they went. She pointed defendant out to the police, who arrested him at the scene. Neither Stelboum nor Levy observed the second incident.

After telling the court he would not testify against defendant, Rucker at a hearing outside the presence of the jury refused to answer any questions and asserted his Fifth Amendment privilege. The People then moved to have him declared unavailable and his plea allocution admitted as a declaration against penal interest in order to establish an element of second degree robbery--that defendant was "aided by another person actually present" (Penal Law §§ 110.00, 160.10[1] ). Over defense objection, the trial court declared Rucker unavailable and admitted the portion of the allocution recounting that he held two individuals as "another person" (deleting defendant's name) took the chains from their necks. Immediately after that testimony was read into the record, and again in its charge, the court instructed the jury that Rucker's statements were to be considered solely with respect to the issue whether more than one person participated in the crime, and not as evidence of defendant's identification. A stipulation between counsel was read to the jury to the effect that Rucker's counsel had, prior to the plea, advised him of the consequences of pleading guilty--both the loss of rights and future risks, and the fact that if he were tried and convicted he would be subject to a substantial mandatory prison sentence. Additionally, defense counsel argued in summation that Rucker's statements should be discredited because of his favorable plea bargain. Defendant was convicted of robbery in the second degree, and the Appellate Division, 115 A.D.2d 1019, 495 N.Y.S.2d 878, affirmed, without opinion.

Rucker's statements constituted hearsay evidence, as they were made out of court and offered for the truth of the matter asserted. Accordingly, the testimony was admissible only if the People demonstrated that it fell within an exception to the hearsay rule (People v. Nieves, 67 N.Y.2d 125, 131, 501 N.Y.S.2d 1, 492 N.E.2d 109). The People contend that Rucker's statements were admissible as a declaration against penal interest. ¹

Hearsay evidence is admissible as a declaration against penal interest only if four prerequisites are met: (1) the declarant must be unavailable to give testimony, whether by reason of absence from the jurisdiction, refusal to testify on constitutional grounds or death; (2) the declarant must have been aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability (People v. Shortridge, 65 N.Y.2d 309, 312, 491 N.Y.S.2d 298, 480 N.E.2d 1080; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; see also, Proposed New York Code of Evidence § 804[b][4]; Fed.Rules Evidence, rule 804[b][3] ). Defendant does not dispute Rucker's unavailability or his knowledge of the underlying facts. ² Thus, we must consider whether the People have demonstrated that in the plea allocution Rucker was aware that his statements were contrary to his penal interest--the second element of the test--and whether there was sufficient independent evidence of the statement's reliability--the fourth element. These two prerequisites in particular involve a "delicate balance of diverse factors * * * entrusted to the sound judgment of the trial court, which is aptly suited to weigh the circumstances surrounding the declaration and the evidence used to bolster its reliability" (People v. Settles, 46 N.Y.2d, at p 169, 412 N.Y.S.2d 874, 385 N.E.2d 612, supra ).

The hearsay exception for declarations against penal interest was first accepted in this State in 1970 (see, People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 [statement exculpating accused] ), and ever since has been embraced cautiously. While conceptually we have recognized that declarations against penal interest can be admitted against an accused--admissions of guilt may in fact be "among the most disserving of declarations" (People v. Maerling, 46 N.Y.2d 289, 297, 413 N.Y.S.2d 316, 385 N.E.2d 1245)--inculpatory declarations of witnesses unavailable for cross-examination are subject to even more exacting scrutiny than others. The interest compromised must be of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify; within practical limitations, only the portion of the statement opposed to declarant's interest should be admitted; and defendant should be allowed to prove, if possible, that compliance with the criteria for admissibility was illusory (id.; Richardson, Evidence § 260 [Prince 10th ed., 1972-1985 Supp.]; see also, People v. Geoghegan, 51 N.Y.2d 45, 49, 431 N.Y.S.2d 502, 409 N.E.2d 975, where we determined that a custodial confession was inadmissible because these assurances of probative value were not present, and additionally because the confession "was not restricted to self-inculpation, but as well inculpated defendant").

Not all plea allocutions, or statements contained in plea allocutions, meet these criteria for admission as declarations against penal interest. As a category, therefore, statements in plea allocutions are neither admissible nor inadmissible as declarations against penal interest.

On one level, a declarant by pleading guilty to a felony is plainly acting contrary to his or...