The defendant, IVAN RIVERA was charged under Indictment #210-03 and arraigned on November 19, 2003 with Burglary in the 2d Degree in violation of Penal Law Section 140.25(2). The defendant had been arrested in the late evening hours of November 11, 2003 in nearby Ellenville, Ulster County, New York and charged with the residential burglary in the Village of Liberty, Sullivan County, New York allegedly committed that same day at approximately 11:00 a.m. The defendant had been identified to the Liberty police that morning by a neighbor ^[FN1]. The following day in the Village of Liberty Court the defendant was arraigned and assigned the Sullivan Legal Aid Panel Inc. Following Omnibus Motion practice on the indictment, Sandoval, Ventimiglia, Huntley and Wade hearings were held by this Court and the matter then scheduled for jury selection. The defendant, IVAN RIVERA, is a multiple felony offender, having three felony convictions, and faces possible persistent felony offender treatment if convicted of any felony under the present Indictment.

After jury selection and immediately prior to opening statements, the People requested clarification from the defendant's attorney ^[FN2], from the Sullivan Legal Aid Panel Inc., as to whether or not the defendant would be seeking to introduce any testimony regarding an alleged admission the defendant's brother, FRANK RIVERA, (hereinafter called "the declarant") allegedly made to another Legal Aid attorney after defendant's arrest on the present charges. The defendant's trial [*2]attorney now indicated for the first time that he would be seeking to introduce the hearsay testimony of the defendant's decedent brother ^[FN3] at trial. Accordingly, this Court indicated that the defense attorney ought to make a Motion In Limine and that a hearing be held out of the presence of the jury.

The defendant now makes application to introduce the hearsay declarations of FRANK RIVERA, decedent brother of the defendant as an admission against interests through the testimony of Mr. Efrain Rivera, the defendant's father, and his prior Legal Aid attorney, Mr. Havas, a senior trial attorney with the Sullivan Legal Aid Panel, Inc.

The admissibility of declarations against penal interest is predicated upon the theory that their reliability can generally be presumed because a person does not ordinarily reveal facts which jeopardize(s) his penal interest.

However, in this instant case there is a substantive issue regarding whether or not the proposed hearsay is against the declarant's penal interests. Based upon the clear and unequivocal testimony of all three witnesses provided by the defendant for the purpose of this Motion In Limine Hearing held out of the presence of the jury, there are serious questions as to whether the declarant was making a declaration predicated upon the theory that he was revealing facts which would jeopardize his penal interest(s).

Although, the defendant argues that the declarant admitted to the burglary, the declarant didn't admit any specific facts. What declarant admitted to is more of a concern for the decedent's brother not to go to jail and to simply say he did it because he was dying of AIDS and did in fact die a few weeks thereafter.

The clear and unequivocal testimony of Mr. Havas, a very experienced defense attorney ^[FN4] clearly demonstrates that the declarant chose not to provide a statement to his brother's attorney that would jeopardize his penal interest(s) after Mr. Havas told him he would have to himself consult with an attorney first.

Assuming arguendo that what declarant said to his father and to the defendant's attorney may be considered an admission against his own penal interest(s), there are nonetheless certain considerations heretofore present, that are fatal to the reliability of that alleged admission. Firstly, the declarant's motivations are suspect since the declarant has a family relationship with the defendant on trial. This suspicion is highlighted by the fact, that when confronted by the defendant's attorney about putting something in writing, he declined to do so. Also, the motivation here, although perhaps laudatory in the sense that he was trying to help his brother, is clearly suspicious, given the family relation and state of Frank Rivera's fatal illness. Here as in People v. Shortridge, Jr., 65 NY2d 309, the statement is also clearly designed, and calculated to exculpate a loved one, that is defendant's brother.

Also important to be noted and absent from this record is any evidence of the declarant's pathology, i.e. whether he suffered from psychological or emotional instability or whether or not he was a chronic or pathological liar. In addition, the declarant was a convicted criminal, and [*3]was dying of AIDS, and not only died of AIDS before the trial but before the prosecution was put on notice of the alleged admission.

Also as noted by our Court of Appeals, in People v. Shortridge, Jr., supra, the declarant's spontaneity or hesitancy is another important factor to be considered. In this case spontaneity is somewhat suspect. The defendant was arrested at his home in Ellenville, Ulster County, New York in the presence of or with knowledge of the declarant's brother and his father, and at that time there was no spontaneous reaching out for the police or those in authority to exculpate his allegedly innocent brother. The hesitancy of this defendant in that he "needed the next day" to speak to his father" is highly suspect. There is no spontaneity but there is calculation on the part of the declarant. There's an absence of promptness in this case, and indeed the tardiness extends throughout the short remaining life of Frank Rivera because during the next several weeks Frank Rivera failed to make anyone else aware of his "admission" as did the defendant's attorney.

The coherence and consistency of the declarations made are also in question. It is clear from the home owner's sworn statement that a cell phone was missing from the burglarized residence. However, the declarant's father, Efrain Rivera was repeatedly consistent in his testimony that his son Frank said he "took nothing". The availability of supporting evidence, some proof independent of the declaration of and by itself is totally absent in this instant case and indeed, what is present is Frank Rivera's refusal to give a written declaration against his penal interests after he was initially advised to speak to his own attorney first.

Another matter of deep concern to this Court is that neither the defendant's father nor the Legal Aid attorney could testify with any specificity when Frank Rivera uttered his alleged declaration ^[FN5] and that the defendant's attorney failed to memorialize it in any way and failed to put the Court or the District Attorney's office on notice so that further investigation or further review by a Grand Jury could be done.

In conclusion, the alleged "admission" is inadmissable as a matter of law since the issue here suffers from several fatal defects.

What clearly emerges from the ambiguity and uncertainty of the alleged statements made by Frank Rivera is that as a brother dying of AIDS, he was intent upon exculpating his brother, Ivan

and there is nothing upon this record other than defendant's trial tactic to keep the alleged declaration secret until after the trial began. Accordingly, the defendant's application to put into evidence the hearsay declaration is denied.

DATED: April 30, 2004

Monticello, New York

HONORABLE FRANK J. LABUDA

Sullivan County Court Judge [*4]

And Surrogate

Decision Date: April 30, 2004