People v. Vasquez

• Citation: 631 N.Y.S.2d 322,214 A.D.2d 93
• Parties: The PEOPLE of the State of New York, Respondent, v. John VASQUEZ, Defendant-Appellant.
• Decision Date: 19 September 1995
• Court: New York Supreme Court Appellate Division

Page 322

631 N.Y.S.2d 322

214 A.D.2d 93

The PEOPLE of the State of New York, Respondent, v. John VASQUEZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Sept. 19, 1995.

Daniel R. Williams, for defendant-appellant.

Pamela Tishman, of counsel (Norman Barclay, on the brief), Robert M. Morgenthau, for respondent.

Before ROSENBERGER, J.P., and ELLERIN, ROSS, WILLIAMS and TOM, JJ.

ROSS, Justice.

On this appeal we are presented with, inter alia, two novel issues. The first, apparently an issue of first impression in our courts, involves the question of whether a corrupt police officer's knowledge of his own illegal conduct, which was collateral to and uninvolved with this defendant's prosecution, can be imputed to the prosecution for the purposes of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The second concerns whether the present sense impression exception to the hearsay rule, which has been recently adopted in this State (People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369, applies to allow the admission of a hearsay declaration, where the hearsay declaration itself does not explicitly recite that it was based on a contemporaneous or near contemporaneous observation, but where such facts can be inferred from the circumstances. With regard to the first issue we conclude that, under the circumstances of this case, where, inter alia, the corrupt officer's illegal conduct was in no way related to defendant's prosecution and the People had no knowledge of the corrupt officer's so called "bad acts" until after the trial, the officer's knowledge of his own prior illegal conduct should not be imputed to the People. Moreover, we find that the information regarding the officer's prior illegal conduct, even if disclosed would not have had a "reasonable probability" of changing the result. At most the information would have functioned only as impeachment evidence in a case where the testimony of this officer was duplicated by, and less essential than, the testimony of the other arresting officer who also testified at the trial. With regard to the second issue, we find no requirement in People v. Brown, (supra ), that a declaration submitted as a present sense impression, itself recite that it is based upon a contemporaneous or near contemporaneous observation. Furthermore, there is ample evidence in this case to corroborate that the statement was both spontaneous and contemporaneous with the event described. Based upon the above findings and those made, infra, regarding the other issues raised on appeal by the defendant, we affirm the defendant's conviction and the denial of his post trial motions to vacate same.

The defendant was arrested on the afternoon of June 20, 1992 and thereafter indicted and charged with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1][4]. The circumstances of defendant's arrest were as follows:

On the date in question, police officers Michael Kennedy and Matthew Barrett, while driving south on Broadway, observed a large crowd of people at the southwest corner of Broadway and 143rd Street. When the officers stopped their car and approached the crowd, it dispersed. Both officers observed defendant walking quickly toward the building located at 3495 Broadway. Officer Kennedy testified at trial that as the defendant walked toward the entrance of the building, his right hand was under the front portion of his shirt in a manner which indicated to Kennedy that defendant was either holding or placing what the officer thought was a gun, into his waistband. Officer Barrett testified that he saw defendant looking back at them while clutching something in his waistband. Both officers stated that they watched the defendant for five or ten seconds as he approached the building's entrance. At approximately the same time, a woman, who was described as a heavy-set Hispanic woman with gray hair, walked up to P.O. Kennedy, pointed to the defendant and stated, "officer, he's got the gun". Thereupon Kennedy yelled to Barrett and pointed to the defendant who then began to run into the building with his hand still at his waistband.

With Officer Barrett leading, the officers followed the defendant into the building and up a staircase to the second floor. Officer Barrett testified that he drew his weapon as he ran up the staircase and then, upon reaching the second floor, saw that defendant initially had keys in one hand about to open the door. The officer then saw defendant reach down and grab the butt of a semiautomatic handgun, which he pulled slightly out of his waistband and then let go as he entered the apartment. The officers, who were about fifteen feet away when the defendant entered the apartment, reached the door as it was closing. They were about to touch the door, which was left ajar, when they heard a gunshot from inside the apartment. The officers immediately radioed for backup. A few moments later the defendant came out of the apartment and was arrested. The officers entered the apartment and immediately saw and smelled smoke from the discharge of a weapon and observed that there was a hole in the hallway wall near the door, through which they had just entered the apartment. The hole appeared to the officers to be the size typically made by a .38 caliber or 9mm bullet.

No weapon was found in the apartment, however large holes were discovered in the walls of the apartment which led to spaces between the walls leading down to the basement. While the investigating officers attempted to see down into these holes, the walls of the apartment were left intact. P.O. Kennedy found 5 rounds of live .38 caliber ammunition on the bedroom floor. These rounds were found to be made for a semiautomatic pistol. The defense presented only the testimony of an investigator, who stated that the lighting conditions on the second floor of 3495 Broadway were poor at 11:10 am on the date he visited the location. While the investigator did not recall the specific weather conditions on the date of his visit, he stated that the hallway lights were dim. Defendant was acquitted of the top count of the indictment charging him with criminal possession of a weapon with intent to use same unlawfully against another (second degree possession), but was convicted of the two third degree weapon possession counts.

The judgment of conviction was rendered against defendant on April 13, 1993. Thereafter on or about March 22, 1994 defendant filed a motion to vacate the judgment of conviction pursuant to CPL 440.10 based, inter alia, upon the claim that information concerning the corrupt activities of Officer Michael Kennedy was known to the People, was newly discovered evidence, and constituted exculpatory evidence which should have been disclosed to the defense pursuant to Brady v. Maryland, (supra,). That motion was denied on or about June 29, 1994 and a justice of this Court granted leave to appeal and consolidation with the defendant's direct appeal from the judgment. The issue presented by the appeal from the denial of defendant's March 22, 1994 CPL 440.10 motion is apparently one of first impression in our Court.

Police Officer Michael Kennedy was one of the officers arrested in a "sting" operation involving corrupt officers in the Thirtieth Precinct in August of 1993, some four months after defendant was sentenced. The record in this matter does not contain any information as to the exact nature of the charges filed against Officer Kennedy or the disposition of those charges. Defendant's motion in the trial court relied entirely on news media accounts of the Mollen Commission investigation into the Thirtieth Precinct which mentioned Officer Kennedy's arrest. Based upon the media reports, the defense contended that P.O. Kennedy and others at the Thirtieth Precinct conducted illegal searches, and committed thefts and acts of routine brutality against suspects, and that this valuable impeachment evidence was improperly withheld by the People.

The prosecution responded to the defendant's motion and maintained that at the time of defendant's trial, which commenced on March 3, 1993, it had been investigating a civilian complaint alleging misconduct against both officers, Kennedy and Barrett. The Internal Affairs Division of the Police Department had informed the District Attorney's Office of the complaint in February of 1993. On March 23, 1993, after investigating the matter, the Internal Affairs Division ruled the complaint unsubstantiated. The prosecution averred that this was the only complaint against Officer Kennedy that it was aware of prior to Kennedy's arrest in August 1993. However, the People did not deny the fact that P.O. Kennedy may have been involved in corrupt activity known only to himself. In reply papers on the CPL 440.10 motion, the defense argued that as part of the prosecution team, Kennedy's knowledge of his own misconduct should be imputed to the People, regardless of whether any prosecutor could have known about Kennedy's secret corrupt activity.

We note initially that the defense advanced no suppression claim regarding any exculpatory evidence relating directly to the defendant's guilt or innocence of the charges in this matter. The defendant's claim is limited to P.O. Kennedy's collateral "bad acts" and their potential use to impeach his credibility. Furthermore, defendant alleged no facts to prove that any member of the prosecution team other than Kennedy himself, had knowledge of Kennedy's corrupt activities prior to the trial. The evidence relied upon by the defendant to support his allegations consisted entirely of media reports of the ongoing investigation into the Thirtieth Precinct. In response to the motion, the People provided uncontroverted affirmations that their knowledge of Kennedy's activities...