[*1]
People v Walls
2014 NY Slip Op 51546(U) [45 Misc 3d 1212(A)]
Decided on October 14, 2014
Supreme Court, Bronx County
Best, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 14, 2014
Supreme Court, Bronx County


The People of the State of New York

against

Christopher Walls, Defendant.




1412/2013



Kristin Bruan, Esq.



Attorney for Defendant



Assistant District Attorney Gabrielle Martin


Miriam R. Best, J.

For the reasons that follow, if defendant demonstrates that his codefendant is unavailable to testify as a defense witness, he may introduce the codefendant's post-arrest statement to a police officer as a declaration against penal interest. If defendant chooses to introduce that statement, the People will then be permitted to introduce a redacted version of the codefendant's plea allocution on their rebuttal case. If these statements are received in evidence, the Court will instruct the jury on both declarations against penal interest and inconsistent statements.

Background

Defendant is charged in a 43-count indictment with Robbery in the First Degree, Burglary in the First Degree, and related crimes for his alleged role in a home-invasion robbery that occurred at 750 Grand Concourse, Bronx, New York, on April 11, 2013.[FN1] Defendant is accused of acting in [*2]concert with Joshua Perry, who pled guilty on June 4, 2014, to one count of Robbery in the First Degree (PL § 160.15[4]) in full satisfaction of the indictment and in exchange for a promised sentence of five years' incarceration and five years' post-release supervision (P 3, 4-5, 7, 10).[FN2] Defendant has moved in limine for an order permitting him to introduce at trial Perry's post-arrest statement, on the ground that it exculpates defendant. Defendant claims that Perry's statement qualifies for admission as a declaration against penal interest under the four-prong test of People v Brensic, 70 NY2d 9 (1987), and that its exclusion would deprive defendant of due process. The People argue that the statement is not truly a declaration against penal interest because, rather than admitting that what occurred was a home invasion robbery, Perry tried to distance himself from culpability by denying that he entered the apartment (H2 15, 16).[FN3] Therefore, the statement should not be admitted. In the alternative, the People argue that admission of Perry's statement to the police will open the door to the admission of statements he made during his plea allocution, admitting that he acted in concert with defendant when he robbed the victim.[FN4] To resolve the issues presented, this Court conducted a hearing on October 7, 2014.



Findings of Fact

On April 12, 2013, Detective Finbarr Fleming of the Bronx Robbery Squad was assigned to



the investigation of a home invasion robbery that took place in an apartment at 750 Grand Concourse, Bronx, New York. He learned that defendant and Perry had been taken into custody and thereafter he and Detective St. Hillaire interviewed Perry in the juvenile room at the 44 Precinct (H2 3-6).[FN5] Fleming administered Miranda warnings to Perry from a sheet of paper. Perry acknowledged that he understood his rights, waived them, and agreed to answer questions, although he refused to make a written statement (H2 4, 7-9). Fleming asked Perry "if he robbed, if he was involved, and if he was involved in this robbery. And I asked him if he knew anyone else involved in the robbery and why the robbery was committed" (H2 10-11). Fleming took contemporaneous notes of Perry's [*3]answers, which Fleming wrote down as follows:



[Perry] had a beef with Barry opposite the building but does not know anything about the old man, which he said was the father.[FN6] Barry had one phone, the ones with no backs are mine. The three bags of weed and money is [sic] mine. I even had money in my socks. I did rob him but I didn't go in his house. I robbed him when we were fighting. He knows me.



(H2 10; PX 2.)[FN7] Fleming asked Perry if anyone else was involved, but he did not recall if Perry said that anyone else was involved (H2 11, 12). According to Fleming, Perry "was taking the blame for himself" (H2 11). Had Perry implicated anyone else, however, Fleming would have written it in his memo book (H2 12).



Anaylsis

In People v Clinkscaleas, 78 AD3d 1069 (2d Dept 2010), the court summarized the law regarding the admission of declarations against penal interest when offered by a criminal defendant:



"[B]efore statements of a nontestifying third party are admissible as a declaration against penal interest, the proponent must satisfy the court that four prerequisites are met: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be 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 Brensic, 70 NY2d 9, 15 [1087]). "Declarations against penal interest offered to inculpate a defendant are subject to a higher standard of exacting scrutiny' for their admission than are declarations offered to exculpate a defendant (see, People v Thomas, 68 NY2d 194, cert denied 480 US 948). Third-party statements used against the accused may be admitted only when competent independent evidence is presented to establish that the declaration was spoken under circumstances which renders it highly probable that it is truthful (People v Brensic, 70 NY2d 9, 14-15). Declarations which exculpate a defendant, however, . . . are subject to a more lenient standard. Supportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true' (People v Settles, 46 NY2d 154, 169-70 . . .)" (People v Fonfrias, 204 AD2d 736, 738 [1994]). In addition, "[d]epriving a defendant of the opportunity to offer into evidence another person's admission to the crime with which he . . . has been charged, even though that admission may only be offered as a hearsay statement, may deprive a defendant his . . . fundamental right to present a defense" (People v Gibian, 76 AD3d 583, 585 [2010], citing Chambers v Mississippi, 410 US 284, 302 [1973]).



Clinckscaleas, 78 AD3d at 1070-71 (emphasis in original); see also People v Sheppard, 119 AD3d 986, 989 (3rd Dept 2014); People v Soto, 113 AD3d 153, 160 (1st Dept 2013); People v Deacon, 96 [*4]AD3d 965, 968 (2d Dept), lv granted, 19 NY3d 1025 (2012), app dism'd, 20 NY3d 1046 (2013).

Defendant argues that each of the four prongs of the Brensic test are satisfied here. Perry would face prosecution for perjury if he testified at defendant's trial that defendant did not act in concert with him when Perry robbed Clarke, in contrast to what Perry told the court when he pled guilty (Bruan Aff of Sept. 8, 2014, at p 6), and Perry's lawyer has told defendant's lawyer that counsel will instruct Perry to invoke his Fifth Amendment right not to testify if he is called as a witness at this trial (H2 17-18). If Perry is in fact called as a witness and he refuses to testify on Fifth Amendment grounds, he will be unavailable, satisfying the first prong of the test.[FN8]

The second and third prongs of the test are also satisfied. Perry was arrested in possession of the stolen property by police who encountered him "really running" through Franz Sigel Park, opposite 750 Grand Concourse, within minutes of their having received a radio run about the crime. Perry was wearing a red hoodie and black jacket, as described in the radio run, and he was promptly identified at the scene of the stop by Clarke, Sr. (Decision of August 22, 2014, pp. 2-3, 5). Thus, Perry, who was on misdemeanor probation at the time of this crime (see P 4), must have known when he spoke with Fleming that admitting he robbed "Barry" was against his penal interest. Perry also plainly had personal knowledge of the underlying facts of the crime.

The People's argument that the fourth prong of the test is not satisfied does raise valid concerns. Perry's statement to Fleming that he did not know anything about "the old man" (presumably, Barrington Clarke, Sr.), and did not go into the "house" appear to be false, and therefore untrustworthy and unreliable. This is because, as established by the evidence at the suppression hearing, Barrington Clarke, Sr., called 911, then flagged down the police, immediately went on a canvass into the park where defendant and Perry were stopped, and "started yelling, That's them. That's them. They're the ones who robbed me.'" It was also clear by the time of the point-out identification that the crime was a home invasion robbery (Decision of August 22, 2014, pp. 3-4). Finally, when he pled guilty, Perry admitted that he robbed Barrington Clarke, Sr., while acting in concert with others including defendant. See People v Valette, 88 AD3d 461, 462 (1st Dept 2011) ("[T]o the extent the statement asserted the codefendant's exclusive possession of the contraband, it did not bear sufficient indicia of reliability, particularly given the codefendant's sworn statement at his plea proceeding that he and defendant jointly possessed the drugs and weapon"), lv denied, 18 NY3d 887 (2012). Thus, Perry's statement appears to be incomplete at a minimum, and untrue in [*5]some of its details.[FN9]

Nevertheless, the standard for admission of a hearsay statement as a declaration against penal interest to exculpate a defendant is not as exacting as the standard applicable when the People seek to introduce the statement to inculpate a defendant. See People v Shabazz, 22 NY3d 896, 898-99 (2013) (trial court "erred by focusing on the inconsistency between the female codefendant's trial testimony [at her own, separate trial, where she denied that she possessed the firearm] and her pretrial statement to [codefendant] Perrington's [former] lawyer [admitting that she possessed the firearm]," and therefore defendants' application to introduce her statement to Perrington's former lawyer at their joint trial as a declaration against penal interest should have been granted; proof was sufficient that the woman was unavailable to testify). Here, there is clearly at least a reasonable possibility that Perry's admission to robbing Barrington Clarke, Jr., of at least one phone is true.[FN10] Moreover, denial of defendant's motion may deprive him of his right to present a defense. The People told the Court at oral argument on this motion that they intend to introduce evidence that stolen property was found on Perry (H2 35), and under People v Thomas, 17 NY3d 923 (2011), they may also introduce evidence that Clarke, Sr., identified Perry at the same time that he identified defendant.[FN11] Under these circumstances, and where the detective who questioned Perry testified that he asked Perry who if anyone else was involved, that he would have written down Perry's answer if Perry had named anyone, and where the detective's contemporaneous notes of Perry's statement do not contain the name of any other participant in the crime, this Court holds that defendant should be allowed to introduce Perry's statement implicating only himself in the crime, subject to proof that [*6]Perry is actually unavailable.

As the cases make clear, if defendant introduces Perry's statement to Fleming as a declaration against penal interest, the Court will instruct the jury on how to evaluate that statement, see People v Brensic, 70 NY2d at 16 ("when the trial court decides to admit a declaration against penal interest through the testimony of a third party, it should give a proper limiting instruction at the time such testimony is introduced and it should also instruct on the use of the evidence during its final charge [citations omitted].);" People v Davis, 250 AD2d 776, 776 (2d Dept) (court's use of pattern jury instruction regarding evaluation of declarations against penal interest [1 CJI(NY) 7.40] was in accord with established legal principles and did not impermissibly shift burden of proof to defendant), lv denied, 92 NY2d 895 (1998); People v Jacobsen, 135 AD2d 1118, 1119 (4th Dept 1987) (where evidence included a statement of a codefendant, given in hospital just prior to his death, tending to exonerate defendant, court's instructions closely following pattern jury instruction on declarations against penal interest [1 CJI(NY) 7.40] were in accord with established legal principles), lv denied, 71 NY2d 969 (1988).[FN12]

Defendant's Use of Perry's Oral Statement Will Open the Door


On Rebuttal to His Subsequent Inconsistent Statement

It is axiomatic that a defendant may not use a ruling as both a sword and a shield. See, eg, People v Marable, 33 AD3d 723, 725 (2d Dept 2006) (Sandoval ruling "is intended as a shield for the defendant, not a sword by which to advance the case for the defense"), lv denied, 8 NY3d 882 (2007); People v Hill, 284 AD2d 193, 194 (1st Dept) (after obtaining pre-trial ruling precluding People from introducing evidence about defendant's drug-trafficking relationship with codefendant, Hill was "warned . . . not to use this ruling as a proverbial sword rather than a shield. However, defendant did precisely that," thus opening door to curative instructions "appropriate to undo the damage caused to the People's case"), lv denied, 96 NY2d 919 (2001). Relying on People v Delvalle, 248 AD2d 126 (1st Dept), lv denied, 92 NY2d 896 (1998), habeas corpus denied, 2004 WL 1661075 (SDNY 2004), aff'd, 129 Fed.Appx. 646 (2d Cir 2005), the People urge that, if defendant is permitted to introduce Perry's statement to Fleming as a declaration against penal interest, they should be permitted to introduce his subsequent statement to Justice Boyle admitting that he robbed Clarke, Sr., while acting in concert with others, including defendant. For the reasons that follow, the People's application is granted to the extent indicated.

In Delvalle, the First Department held that



[t]he court properly admitted, as a prior inconsistent statement to impeach a hearsay declarant's credibility, the rebuttal testimony of a prosecution witness who stated that he overheard the unavailable hearsay declarant implicating defendant in the murders. This statement directly contradicted the hearsay declarant's statement exonerating defendant, which defendant had placed in evidence as a declaration against penal interest.



248 AD2d at 127. Delvalle is virtually on all fours with this case, and stands for the proposition that, if the jury hears that Perry implicated only himself on the night of the crime, they should also hear that he later stated that he acted in concert with others to commit the crime.

"[A] defendant can open the door to the admission of testimony that would otherwise be inadmissible under the Confrontation Clause of the United States Constitution." People v Reid, 19 NY3d 382, 384-85 (2012). Obviously, Perry's plea allocution is inadmissible on the People's case, as it would clearly violate defendant's Sixth Amendment right to confront and cross-examine. People v Hardy, 4 NY3d 192 (2005). But



if evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, a defendant could attempt to delude a jury "by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context" (citation omitted). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts . . . the admission of testimony that violates the Confrontation Clause may properly be admitted if the defendant opened the door to its admission.



People v Reid, 19 NY3d at 388. Here, if defendant offers Perry's statement to Fleming as a declaration against penal interest, the People should be allowed to introduce rebuttal evidence that, at another time, he made statements inconsistent with that post-arrest statement.[FN13]

Because the Court's final instructions to the jury will direct them not to speculate about anyone whom the People contend acted in concert with defendant but who is not on trial, which would obviously include Perry (see CJI2d[NY] Final Instructions: Accessorial Liability), I hold that the People may not introduce the fact that Perry pled guilty to Robbery in the First Degree, unless defendant also opens the door to that fact. Moreover, although defendant's introduction of Perry's post-arrest statement will constitute a waiver of his Confrontation Clause rights, it should not allow the People to introduce that part of Perry's plea allocution in which he specifically named defendant as an accomplice, unless, again, defendant opens the door. Therefore, the People will have to remove the reference to defendant, although they may retain the reference to "others." See People v Maschio, 117 AD32d 1234, 1234 (3rd Dept 2014) ("no such violation [of the right to confront witnesses] occurs where . . . the [non-testifying] codefendant's statement incriminates the defendant only in light of other evidence produced at trial [citations omitted]."). Finally, should the redacted allocution be received in evidence, the Court will instruct the jury that inconsistent statements are not admitted for the truth of the matter asserted in the statements, but only for the jury's use in evaluating the believability and accuracy of the declarant (see CJI2d [NY] Final Instructions: Inconsistent Statements). See People v Delvalle, 248 AD2d at 127.



Conclusion

The foregoing constitutes the decision and order of this Court.



Dated:October 14, 2014

Bronx, New York



__________________________________________



Miriam R. Best



Acting Supreme Court Justice

Footnotes


Footnote 1:The indictment originally contained 50 counts, but the Honorable Denis J. Boyle dismissed seven counts on August 16, 2013. On August 22, 2014, following a hearing, this Court denied defendant's motion to suppress physical and identification evidence.

Footnote 2:Parenthetical references preceded by a "P" refer to the minutes of Perry's guilty plea before Justice Boyle.

Footnote 3:Parenthetical references preceded by "H2" refer to the minutes of the hearing and oral argument conducted on this motion on October 7, 2014.

Footnote 4:When Perry pled guilty, Justice Boyle told him that "in pleading guilty to Robbery in the First Degree, you are admitting that on or about April 11, 2013, when acting in concert with other individuals, including Mr. Christopher Walls, together you did use force to steal personal property from B[a]rrington Clarke, Sr., and that in the course of the commission of this crime, in concert, you displayed what appeared to be a firearm. Do you understand that you are admitting that criminal conduct?" Perry replied, "Yes" (P 7). Although Perry agreed to answer Justice Boyle's questions honestly (P 5), he was not put under oath.

Footnote 5:Defendant and Perry were in the cells together at the 44 Precinct. The detectives interviewed Perry first (H2 5, 12).

Footnote 6:The statement, "which he said was the father," does not appear in Fleming's notes (PX 2).

Footnote 7:It was established at the suppression hearing that, when he was arrested, Perry possessed several cell phones, some United States currency, a white metal necklace with stones and a white metal ring with stones (Decision of August 22, 2014, p. 3).

Footnote 8:Although defendant plainly considers it unlikely that Perry will testify in his defense, the Court will not rely on the hearsay statement attributed to Perry's counsel or speculation as to what Perry will actually do if brought to court. Defendant must actually demonstrate that Perry is unavailable, People v Valette, 88 AD3d 461, 461 (1st Dept 2011) (codefendant's statement to police officer that "everything in the trunk was his" not declaration against penal interest where, inter alia, defendant did not demonstrate that codefendant, who had already pleaded guilty and been sentenced, still intended to invoke Fifth Amendment privilege or was otherwise unavailable to testify), lv denied, 18 NY3d 887 (2012). The Court will sign an order to produce Perry to the Bronx Hall of Justice from whatever Correctional Facility currently houses him, and direct his counsel to be present for an examination outside the presence of the jury.

Footnote 9:This Court can think of reasons why Perry might falsely claim to have been the only person involved in the robbery. See, eg, People v Mitchell, 57 AD3d 1308, 1309 (3rd Dept 2008) (victim admitted on cross-examination that, while in jail, he wrote a letter falsely implicating defendant's brother as shooter to avoid being known as a snitch, because victim was concerned for his safety); People v Edwards, 261 AD2d 260, 261 (1st Dept) (witness testified that other inmates called him a "snitch" for cooperating with prosecution and he feared reprisals), lv denied, 93 NY2d 1017 (1999); People v C.M., 161 Misc 2d 574 (Sup Ct, New York County 1994) (granting defendant's application to seal courtroom during his testimony to protect his identity as police informer, to protect his life and to preserve his right to present full defense).

Footnote 10:Indeed, the indictment contains four counts of Robbery in the First Degree pertaining to Barrington Clarke, Jr., and the final paragraph of the Criminal Court complaint alleges that Clarke, Jr., told Police Officer Richard Young "that he is the lawful custodian of one cellular telephone, a sum of United States Currency, and a silver necklace and that he did not give the defendants or separately unapprehended males permission or authority to take or remove said items."

Footnote 11:See People v Thomas, 17 NY3d at 926-27 (robbery victim could properly testify to show up identification of codefendant who possessed the stolen property, who had already pled guilty, because victim's "accuracy in identifying the person who, it turned out, had his cell phone was relevant to whether the conditions on the landing at [the crime scene] were conducive to observing the other attacker and accurately identifying him at trial.").

Footnote 12:A copy of 1 CJI(NY) 7.40 is attached to this decision as Exhibit 1.

Footnote 13:Perry's statement to Justice Boyle therefore will not be received for its truth as a declaration against penal interest, see People v Blades, 93 NY2d 166, 175-77 (1999) (portion of non-testifying codefendant's plea allocution implicating defendant was not against former's penal interest, but its erroneous admission on People's case was harmless error), but only as an inconsistent statement.