People v. Velez

• Decision Date: 14 February 1995
• Citation: 623 N.Y.S.2d 490,164 Misc.2d 94
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Roman VELEZ, Defendant.
• Court: New York Supreme Court

Page 490

623 N.Y.S.2d 490

164 Misc.2d 94

The PEOPLE of the State of New York, Plaintiff, v. Roman VELEZ, Defendant.

Supreme Court, Bronx County Part 35.

Feb. 14, 1995.

Martin L. Fisher, for defendant.

Robert T. Johnson, Dist. Atty. of Bronx County (Jennifer J. Decastro, of counsel), for plaintiff.

DAVID STADTMAUER, Justice.

The People move, pursuant to CPL Section 670.10, for permission to use the transcribed testimony of the complaining witness, previously given at defendant's preliminary parole revocation hearing, as evidence-in-chief at the instant criminal trial for rape and sodomy. The nineteen-year-old complaining witness is now deceased and there is no evidence against the defendant (who was the witness's stepfather) other than the previous testimony.

The use of prior testimony of a now unavailable witness as evidence-in-chief in a criminal proceeding (including the nature of such testimony and the circumstances under which this testimony is admissible) is governed by CPL Article 670. Pursuant to CPL section 670.10[1], said testimony consists of "testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to [CPL] section 180.60, or (c) an examination of such witness conditionally, conducted pursuant to [CPL] article six hundred sixty...." In the case at bar, it is clear that a preliminary parole revocation hearing, conducted before an Administrative Law Judge pursuant to the Executive Law, does not fall within the three categories of admissible evidence set forth in CPL 670.10[1]. The People, nevertheless, take the position that even though such a proceeding is not specifically mentioned, this Court should recognize the similarity of the parole proceeding to a hearing upon a felony complaint conducted pursuant to CPL Section 180.60 (CPL 670.10[1][b].

The People contend that the parole testimony of the witness was made under oath, that the defendant was represented by counsel at the parole hearing, that the defendant had a full and fair opportunity to cross-examine at that hearing, and that the earlier proceeding was the functional equivalent of a hearing before a judicial tribunal. Furthermore, the People urge that all of the parties are essentially the same (although the District Attorney did not appear at the preliminary parole hearing), that the subject matter of the revocation hearing concerned the same issue that would have been litigated at defendant's criminal trial (the allegedly forcible rape and sodomy of the witness on December 14, 1993), and that the parole testimony is virtually identical to that which would have been given at the trial of this indictment.

The People's argument is compelling but unavailing. In People v. Green, 78 N.Y.2d 1029, 1030, 576 N.Y.S.2d 75, 581 N.E.2d 1330 [1991], the Court of Appeals, in denying the trial admissibility of previously given grand jury testimony, held that "the statute's 'three carefully worded and enumerated exceptions' are exclusive...." Of course, it is true that Green dealt with testimony before a grand jury rather than at a parole revocation hearing and that those two proceedings are distinguishable since grand jury proceedings do not involve cross-examination of a witness by the defense. The Court of Appeals, however, did not look to whether the testimony was subjected to the test of cross-examination in determining the issue of admissibility. Rather, the decision to exclude the prior testimony was based on the fact that the grand jury proceeding was not one of the "three carefully worded and enumerated exceptions" and because of undue prejudice to the defendant. (See, also, People v. Peterson, 160 A.D.2d 563, 564, 554 N.Y.S.2d 521 [1st Dept., 1990].) It is therefore unclear, in view of the appellate recognition...