Opinion
5804/95.
Decided February 23, 2005.
Robert S. Dean, Center for Appellate Litigation, New York, NY (Claudia S. Trupp, of counsel), for defendant.
Robert M. Morgenthau, District Attorney, New York County (Warren Murray and Jeanne Olivo, of counsel), for plaintiff.
INTRODUCTION
Defendant and three accomplices, Evelyn Reyes, Pedro Aviles, and Ederick Fabrizio, robbed approximately $200,000 from an apartment used to count and store money acquired from drug selling. During the robbery, an accomplice shot to death the man inside the apartment. At trial, facing charges of felony murder in the second degree and robbery, defendant asserted the non-slayer affirmative defense to felony murder. The jury found her guilty of felony murder in the second degree and of robbery in the first and second degrees.
The principal evidence relevant to the affirmative defense was supplied by statements from defendant and two of her accomplices. Defendant's statement, coupled with other evidence at trial, provided evidentiary support for the defense. The two accomplice statements, a guilty plea allocution and a custodial confession, were admitted into evidence at trial as declarations against penal interest and tended to undermine that defense.
In this motion to vacate judgment, defendant raises two issues related to the declarations against penal interest. Defendant contends that the admission of both declarations violates Crawford v. Washington ( 541 US 36, 124 S Ct 1354), and that Crawford applies retroactively on post-judgment review. Defendant also contends that the trial prosecutor did not disclose to the defense information that the confessing accomplice had recanted his confession during his own trial conducted a few weeks before defendant's trial.
This Court grants defendant's motion to the extent of vacating the judgment of conviction for felony murder. This Court rules that Crawford applies retroactively on post-judgment review, and that the admission of both declarations prejudiced the jury's consideration of the felony murder charge but not the robbery charges. This Court also finds that the prosecutor did not suppress the information about the recantation, and that defendant was not prejudiced by the non-disclosure of the recantation.
FACTS The Crime Scene
At approximately 1:00 a.m. on June 14, 1995, Police Officer Thomas Hovagim and his partner entered 4501 Broadway, located near 193rd Street, in response to a radio call that a man had been shot. On the seventh floor, they found Jose "Kiko" Perez sitting in the hallway in front of the elevator. His torso was exposed and naked, and his lower body was covered with a sheet. A bullet wound was visible in his torso. He had been shot twice, at close range, through the middle to lower part of his back.
The officers entered Perez's apartment, where a trail of blood led down a hallway into a bedroom off the hallway on the right side. In that bedroom, Hovagim saw a pool of blood on the floor by a bed with a bloodstained sheet. The room also contained three discharged shell casings that had been fired from the same 9 millimeter gun.
A second bedroom was located off the hallway on the left. Inside that bedroom, in a corner on the floor, the police found a cardboard box containing approximately $55,000 in cash bundled with rubber bands, and a notebook with names and numbers written inside. On a table near the box, the police found an electric money counter. The room also contained a briefcase containing more notebooks with names and numbers written inside. The notebooks contained numbers as high as $5,000,000. The apartment did not contain a safe or any security or alarm system. The police did not find any weapons or ammunition.
The Arrests
At 1:15 a.m., paramedics arrived to take Perez by ambulance to Harlem Hospital. As Perez was wheeled into the hospital, paramedic Lisette Pena asked Perez in Spanish, "Who did this to you?" He said, "Ellie and Maryelle." Pena asked, "Who shot you," and Perez gave the same answer. Notwithstanding these statements, the prosecution did not contend at trial — and does not now contend — that defendant, known as either "Marian" or "Mariel," had shot Perez or that she had possessed any weapon.
In the morning on June 14, 1995, Detective Gennaro Giorgio interviewed a jailed city prisoner who was in charge of the drug organization that ran the counting house presided over by Perez. The prisoner became upset when shown a photograph of Perez as he lay dead and agreed to help the police with the investigation by calling Ellie and Marien and telling them to cooperate with the police.
Later in the evening, between 10:30 p.m. and 11:00 p.m., the police drove with the prisoner to 260 Valentine Lane in Yonkers, where defendant resided. The prisoner made a telephone call and said in Spanish to the person at the other end of the line, "They killed Kiko, he was like my son." He also told the other person to go to the police or "I'm going to take the police to you." After the telephone call was made, Pedro Aviles and a woman exited 260 Valentine Lane. A few minutes later, defendant exited that building with Evelyn Reyes. All four were apprehended and taken to the 34th Precinct station house.
Defendant's Statements
At the station house, the police placed each person in a separate room. Defendant was interrogated between 1:30 a.m. and 2:40 a.m. She waived her Miranda rights and wrote two false exculpatory statements. During this time, the police also questioned Reyes.
Around 5:00 a.m., Reyes sent defendant a hand written note, via a police intermediary, asking her whether they should tell the truth. After police allowed both women to meet, defendant agreed to speak again to police.
Defendant was interrogated again between 7:20 a.m. and 8:00 a.m. Her interrogator reduced her statement to writing. In this third written statement, she said that she lived with Aviles, who was her brother, and Reyes. At one time, all three had worked counting money at West 193rd Street. At the moment, only defendant and Reyes were working there. Aviles had been arrested and got scared.
She then described how she, Reyes, and Aviles planned to rob the spot where she worked. Her brother recruited someone named "Ederick" from Florida to participate in the robbery. Ederick arrived between 9:00 p.m. and 10:00 p.m. on the night of the robbery. She said that the "plan was made by all of us."
According to the plan, she and Reyes would enter the apartment. Reyes would keep "Kiko" busy in his bedroom by kissing him. Defendant was supposed to leave open the apartment door so Aviles and Ederick could enter and take the money.
On the day of the robbery, she and Reyes worked with "Kiko" at the spot. Two men brought a sum of money to the apartment and left. Later, defendant and Reyes left together in a cab and went to defendant's house.
At around 1:00 a.m. on June 14, 1995, defendant, Reyes, Aviles, and Ederick returned to the spot. Aviles and Ederick remained in the hallway while defendant and Reyes entered the apartment. About ten minutes later, defendant opened the front door, and Reyes entered the bedroom with Kiko.
Aviles and Ederick entered the apartment, and Aviles grabbed a box containing more than $100,000. Ederick entered the bedroom, and defendant heard three gunshots. She heard Kiko yell, "Evelyn, why you do this . . . Help me." Everyone left the apartment. After Aviles departed with the money, defendant, Reyes, and Ederick fled together in the same cab. Defendant and Reyes went to defendant's home, and Ederick went to a motel.
When Ederick went to the motel, he had money and a 9 millimeter gun. He had gotten the gun from defendant's house. The gun belonged to defendant and Reyes. Defendant did not know how Ederick had gotten the gun. She said that the plan had been to "take the money and split it with us later. The plan was never to kill Kiko."
Defendant made no other statements.
The Declarations Against Penal Interest
At 11:30 a.m. on June 15, 1995, a New York City Police Detective contacted Detective Michael Santos of the Metro-Dade Police Department and asked him to apprehend Ederick Fabrizio, who was traveling on a bus scheduled to arrive in Miami that evening. Santos apprehended Fabrizio in Miami at 8:45 p.m. as he departed a bus that had arrived from New York City.
In custody, Fabrizio made a statement that was transcribed and admitted into evidence against defendant at her trial. In the statement, Fabrizio said that he resided in Miami and had been asked by someone who lived outside Miami to help rob a drug-money counting house in New York City. He was told that the $1,000,000 would be taken, and that he would receive about $200,000.
On June 13, 1995, Fabrizio flew to New York City, where he was told "how the robbery would go down. . . . [T]wo people were going to be with the guy, and one of them was supposed to get up and open the door for us." A female participant showed Fabrizio a dark "automatic" pistol, which Fabrizio handled. The plan was a robbery, and Fabrizio told himself that "the person with the gun is going to have to kill him because that person is going to pull a gun and he's going to know that." At the same time, there was discussion about putting something over the guy's head.
Fabrizio and the others traveled by taxicab to the apartment. He carried a lighter that resembled a pistol, which he covered in his front waistband. The woman with the real gun brought it to the apartment. They arrived there around 1:00 a.m. Some members of the group entered the apartment, while Fabrizio and another person waited outside in the stairwell.
Someone opened the door for Fabrizio. He entered the apartment, retrieved a pillow, and entered the bedroom with the victim and the female who had brought the gun. Fabrizio pointed his fake gun at the victim, hiding it behind a pillow, and announced a robbery. He ordered the victim to lay face down on the bed and to place his hands behind his head. The victim complied.
Another participant ran inside the apartment and grabbed a cardboard box. The female with the gun grabbed the pillow from Fabrizio, retrieved her gun from underneath the bed, and shot through the pillow three times. The victim was still moving and yelling, "Ellie, no." Everyone fled the apartment.
The other hearsay statement admitted into evidence against defendant was the statement that Reyes made when she pleaded guilty on February 21, 1996. During her guilty plea, Reyes said that she had worked in the apartment, and had been working there on the day of the robbery. After finishing work and leaving, she returned to the apartment to "take a certain amount of money." She said that "it was all planned out." She admitted that a gun had been involved, and that "it was my gun." The gun was loaded. She had obtained the gun from her home and "gave [the gun] to others so that those other [sic] could steal money from Mr. Perez. . . ."
During the crime, she and another person were in a room, waiting for Mr. Perez to finish bathing "because we were going to go out." He was naked with a towel wrapped around him. She was waiting for other people to rob Mr. Perez. There was knocking at the door, and a person opened the door for those two other people. About $200,000 was taken from the apartment. She saw Mr. Perez get shot. Everybody "ran out" after the shooting.
The Summations and Jury Deliberations
In summation, the prosecutor relied on both declarations against penal interest to urge the jury to find that defendant had not established the affirmative defense to felony murder. He reminded the jury that Reyes had said that she had given the gun to Fabrizio, and that Fabrizio had admitted being shown the gun. He argued that defendant therefore "had to have seen a gun."
After being instructed, the jury in its first note asked for defendant's written statements, and a readback of Reyes' guilty plea allocution and Fabrizio's custodial confession. Thereafter, five of the six jury notes related to consideration of the affirmative defense to felony murder.
The Recantation
Fabrizio was tried separately and proceeded to trial on February 3, 1997, approximately one month before defendant's trial. On February 18, 1997, about two weeks before jury selection began in defendant's case, Fabrizio testified on his own behalf at his trial. He denied participating in the crime or confessing his participation to police in Miami. The trial assistant at Fabrizio's trial was the same trial assistant at defendant's trial.
According to Fabrizio's trial testimony, he had traveled to New York for a drug deal. He did not know anything about a robbery. After the robbery had been completed, Aviles had told Fabrizio about the robbery, how it had been planned, and how the plan had gone wrong. Fabrizio agreed to safeguard some of the stolen money at a motel, where the money was divided up the next day.
On the next day, Fabrizio traveled to Miami by bus, carrying a suitcase that contained $45,000, most of which was to be used for the drug deal. The bus stopped in Palm Beach, at which time the police seized the suitcase. Fabrizio was arrested later when the bus arrived in Miami.
After his arrest, in an interview with a Detective Santos, Fabrizio denied involvement in the robbery. Not wanting to snitch on Aviles, Fabrizio did not reveal what he had been told about the robbery.
Later, Fabrizio made a second statement to Santos. He agreed to make the statement after speaking with his mother and uncle, who said that the police would blame him for the murder if he did not talk. His mother and uncle were present during the second statement.
In the second statement, Fabrizio did not tell Santos that he had been present for the robbery. He did explain the details about the crime, but claimed to have told Santos that the information had been provided by Aviles. Fabrizio denied that he ever said that he had participated in the robbery. After Fabrizio made this second statement, his mother and uncle left the station house.
Later, Santos solicited a third statement from Fabrizio, who repeated the same information that he had provided in the second interview. This statement was transcribed by a court reporter, and made in the presence of another officer. Fabrizio spoke to Santos in Spanish. Neither of the other people who were present ever spoke to Fabrizio in Spanish. The statement was reduced to a writing in English. Fabrizio initialed each page of the statement, not knowing what it said. He relied on Santos' representation about what it said. Fabrizio did not realize, until after he had reached New York and been assigned counsel, that the written statement stated that Fabrizio was present at the time of the robbery.
The jury found Fabrizio guilty of all counts on February 20, 1997.
Defense Counsel's Lack of Knowledge of the Recantation
After Fabrizio's trial had ended, but before defendant's trial began, defendant's trial counsel appeared before the judge who had presided over Fabrizio's trial. The judge informed defense counsel that she would sign an order "for 18-b minutes for those portions of the other trial" that were relevant to defendant's case. The judge did not discuss the trial or the trial evidence in any more detail.
Defendant's Appeal and Post-Judgment Litigation
On direct appeal, defendant argued that introduction of the hearsay statements by Fabrizio and Reyes violated her 6th Amendment right to confrontation. The Appellate Division ruled that the admission of "certain portions" of those statements — blame-shifting portions not relevant to the affirmative defense to felony murder — was harmless error because they "did not serve to undermine defendant's defense" ( People v. Encarnacion, 259 AD2d 309, 310 [1st Dept], lv denied, 94 NY2d 860).
On May 24, 2004, defendant filed her motion to vacate judgment. In the motion, defendant's appellate counsel submitted an affidavit stating that she had learned about Fabrizio's recantation after contacting Fabrizio's appellate attorneys, and that she had obtained a transcript of his trial testimony in April of 2004. In another affidavit, defendant's trial counsel stated that he had been unaware of Fabrizio's trial recantation at the time of defendant's trial, and that he would have used the recantation to impeach Fabrizio's confession admitted against defendant at trial.
On January 7, 2005, this Court conducted a hearing to explore two issues related to Fabrizio's recantation: what efforts, if any, did defense counsel undertake to learn about the recantation and how defense counsel would have used the evidence of the recantation had it been disclosed to him before trial. Defense trial counsel was the lone witness.
Defense trial counsel stated that he did not order any of the minutes from Fabrizio's trial for use at defendant's upcoming trial. He explained that his trial strategy was to rely on the affirmative defense to felony murder, and that he did not believe that any of the testimony from Fabrizio's trial would be relevant to asserting that defense. He also did not speak with Fabrizio's attorney.
Defense trial counsel stated that he would have used the recantation in two ways. Counsel would have used the recantation to oppose the admissibility of Fabrizio's custodial statement to police in Florida as a declaration against penal interest. The prosecution had argued that the custodial statement was reliable, in part, because it had been made while Fabrizio was under oath. Defense counsel stated that he could have cited the recantation to undermine that argument because the recantation also had been made while Fabrizio was under oath. If that argument failed, defense counsel would have sought to admit the recantation at trial as an inconsistent statement to impeach Fabrizio's custodial confession.
The prosecution stated what it would have done if defense counsel had taken that course. The trial assistant would have moved to admit evidence to corroborate the authenticity of the custodial statement, including the testimony of the officers who had interrogated Fabrizio in Florida and who had recovered the evidence mentioned in the statement, as well as evidence to establish Fabrizio's proficiency in the English language.
This Court asked defense counsel if he still would have moved to admit the recantation if this Court had allowed the prosecutor to offer "some or all" of the evidence mentioned above, and defense counsel stated, "Yes."
LAWI. The Retroactive Application of Crawford
Defendant argued on her direct appeal that admission of the two declarations against penal interest had violated the Confrontation Clause, but the Appellate Division rejected them under then existing law ( see People v. Encarnacion, 259 AD2d at 309-310). Post-judgment review of a claim previously determined on the merits on direct appeal is not permitted unless a case decided after the appeal has retroactively changed the law controlling that claim (CPL 440.10 [a]). As explained below, defendant correctly argues that Crawford applies retroactively on post-judgment review.
In Ohio v. Roberts ( 448 US 56, 66), the Supreme Court ruled that a hearsay statement could be admitted at trial if the declarant was unavailable to testify and the court determined that the statement bore adequate "indicia of reliability." The Court ruled that reliability could be inferred if the statement fell within a firmly rooted exception to the hearsay rule or there was "a showing of particular guarantees of trustworthiness" ( id.). This test, the Court reasoned, gave the jury a satisfactory basis to evaluate the truth of the statement even though the defendant could not cross-examine the declarant ( id. at 65-66).
A generation later, in Crawford v. Washington ( 124 S Ct at 1369-1370), the Supreme Court ruled that Roberts and its general reliability test no longer governed the admissibility of testimonial hearsay statements. In Crawford, the Court defined a testimonial statement as " ex parte in-court testimony or its functional equivalent," and ruled that this definition included, among other things, statements made during a custodial police interrogation and an accomplice's statement during a guilty plea ( id. at 1364, 1371, 1374 [internal quotation marks omitted]). Under Crawford, a testimonial statement can be admitted only if the declarant is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the declarant ( id. at 1374). The Court ruled that, for testimonial statements, "the only indicum of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation" ( id.).
In this case, both declarations against penal interest admitted into evidence at defendant's trial would be inadmissible today under Crawford. In that decision, the Court identified custodial statements made in response to police interrogation and guilty plea allocutions as testimonial statements that may not be admitted unless the declarant was unavailable and the defendant had a prior opportunity to conduct cross-examination ( id. at 1365, 1372; accord People v. Hardy, ___ NY3d ___, 2005 NY Slip Op 01263, *5 [2005] [recognizing guilty plea allocution is inadmissible under Crawford]). The prosecution here concedes that these statements are inadmissible hearsay under Crawford, but contends that Crawford does not apply retroactively on post-judgment review.
In New York, the retroactive application of a change in federal constitutional law on post-judgment review under CPL 440.10 is governed by retroactivity principles for federal constitutional law as stated in Teague v. Lane ( 489 US 288 [plurality opinion]) ( see People v. Eastman, 85 NY2d 265, 275). Under Teague, a court first must decide whether a new decision created a new rule of constitutional law ( id.). A decision creates a new rule if the decision "breaks new ground or imposes a new obligation on the States or the Federal Government," or the result of the decision was not "dictated by precedent existing at the time the defendant's conviction became final" ( id. at 275-276).
According to Teague, new constitutional rules are applied retroactively on post-judgment review only if they fall within one of two exceptions ( People v. Eastman, 85 NY2d at 275-276). Under the Teague exception for new rules of constitutional criminal procedure, the only exception that applies here, a new rule applies retroactively if the new rule "alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial" ( People v. Eastman, 85 NY2d at 275). As the Supreme Court recently reiterated, to fall within the second exception, the new rule must be more than "`fundamental' in some abstract sense" ( Schriro v. Summerlin, ___ US ___, 124 S Ct 2519, 2523). The new rule must be one "without which the likelihood of an accurate conviction is seriously diminished" ( id. [quoting Teague v. Lane, 489 US at 313] [emphasis in original] [internal quotation marks omitted]).
The first Teague exception applies to rules that forbid punishment for "certain primary conduct" or "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense" ( Beard v. Banks, ___ US ___, 124 S Ct 2504, 2513 [2004]).
This Court finds that Crawford created a new rule of constitutional law. The decision created a seismic alteration of the legal landscape by overruling Ohio v. Roberts ( 448 US 56), the seminal case that had governed the admissibility of hearsay statements, and replacing it with a different rule. Clearly, then, Crawford was not dictated by prior precedent existing when defendant's conviction was affirmed on direct appeal and became final in March 2000. The retroactive application of Crawford, thus, depends on whether it altered a bedrock procedural rule "central to an accurate determination of guilt or innocence" ( Teague v. Lane, 489 US at 313).
Defendant's conviction became final on or about March 13, 2000, when the time for filing a petition for a writ of certiorari in the United States Supreme Court elapsed ( see Caspari v. Bohlen, 510 US 383, 390 [1994]).
The Crawford decision altered a bedrock procedural element of constitutional criminal procedure. The Supreme Court has long recognized that "the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal" ( Pointer v. Texas, 380 US 400, 405). Indeed, in Crawford, itself, the Court referred to the Sixth Amendment right to confrontation as a "bedrock principle" ( 124 S Ct at 1359). And the Court of Appeals has recognized the bedrock status of the right to confrontation in People v. Eastman ( 85 NY2d at 276), which referred to the Sixth Amendment right of confrontation as "a bedrock procedural element." These explicit and unequivocal pronouncements establish that Crawford implicates a "bedrock principle" under Teague.
Whether a Crawford violation seriously diminishes the likelihood of an accurate verdict ( see Schriro v. Summerlin, 124 S Ct at 2525) depends on the reliability of the evidence excluded by Crawford. The Crawford rule excludes two types of testimonial hearsay statements that had been admissible under Roberts — those admitted under the general reliability test and those admitted under a firmly rooted exception to the hearsay rule. As explained below, under Crawford, both categories of testimonial hearsay must be regarded as presumptively unreliable when not subjected to prior cross-examination. This Court thus rules that admitting presumptively unreliable evidence at trial seriously diminishes the accuracy of the trial process, and that a watershed rule of constitutional criminal procedure that excludes that kind of evidence satisfies the final prerequisite for retroactive application under Teague.
Under the analysis in Crawford, testimonial hearsay that had been admissible under Roberts' general reliability test must be regarded now as unreliable. After all, any hearsay statement that does not fall within a firmly rooted exception to the hearsay rule is presumptively unreliable ( Lee v. Illinois, 476 US 530, 543). And in Crawford, the Supreme Court rejected the very premise of the general reliability test — that judges could accurately assess the reliability of hearsay evidence untested by cross-examination ( see 124 S Ct at 1370-1374). According to basic hearsay principles, any testimonial hearsay whose supposed reliability hinged on a judicial determination of reliability cannot be regarded as anything but presumptively unreliable hearsay.
This analysis, of course, does not apply to hearsay that had been admissible under one of the firmly rooted exceptions to the hearsay rule. These statements are admissible not upon a judicial finding of reliability but upon satisfying the legal criteria for one of the firmly rooted exceptions to the hearsay rule. Although the criteria for each exception are different, the legal underpinnings for the exceptions rest on the same principle — that the statement was made under circumstances that made it as reliable as testimony that had been subjected to cross-examination ( see Idaho v. Wright, 497 US 805, 820 [hearsay rule no barrier to admitting statements if "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility"]).
Nevertheless, Crawford separately analyzed the reliability of testimonial hearsay that fell within a firmly rooted exception to the hearsay rule. In his concurrence, Chief Justice Rehnquist contended that the confrontation clause should not be interpreted to exclude these statements, stating that they were "just as reliable as cross-examined in-court testimony due to the circumstances under which they were made," and their testimonial nature did "nothing to undermine the wisdom of one of these exceptions" ( Crawford v. Washington, 124 S Ct at 1377 [Rehnquist, CJ, concurring]). Responding to the concurrence, the Crawford majority disagreed with the assertion that the testimonial nature of a statement "does nothing to undermine the wisdom of one of these [hearsay] exception" ( 124 S Ct at 1367 n 7). The majority explained that the "[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse," and that "[t]his consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justified in other circumstances" ( id.).
As this analysis shows, after Crawford, even a testimonial statement that happens to meet the criteria for a firmly rooted exception to the hearsay rule must be regarded as presumptively unreliable hearsay. According to Crawford, the potential for abuse that exists when law enforcement participates in producing a statement with an "eye toward trial" constitutes a circumstance that removes the presumption of reliability that attaches to hearsay falling within an exception to the hearsay rule. Crawford thus discredited the other legal principle of admissibility under Roberts — that the reliability of a testimonial hearsay statement could be inferred if it fell within one of the firmly rooted exceptions to the hearsay rule.
Based on this analysis, this Court concludes that Crawford significantly improves the accuracy of the trial process and that a Crawford violation seriously diminishes the risk that an innocent person will be convicted. In every case with a Crawford violation, presumptively unreliable hearsay will have been admitted as direct evidence of guilt and considered by the fact-finder. Indeed, most of those cases inevitably will have involved hearsay that was admitted based upon nothing more than a judicial determination of reliability ( see Crawford v. Washington, 124 S Ct at 1367 [finding scant evidence in the common law that testimonial statements were admitted as exceptions to the hearsay rule in a criminal case]). In any event, regardless of how the evidence was admitted under Roberts, the introduction of presumptively unreliable hearsay into a trial creates a significant risk that an innocent person will be found guilty. Accordingly, Crawford is central to an accurate determination of guilt or innocence and, thus, applies retroactively on post-judgment review.
The conclusion that a Crawford violation seriously diminishes the accuracy of the trial is also supported by the reasoning of two Supreme Court pre- Teague retroactivity cases. In each case, the Court retroactively applied on post-judgment review a decision that had ruled testimonial hearsay to be inadmissible if the defendant did not have an opportunity for cross-examination. In each case, one factor that favored retroactivity was the recognition that admitting testimonial hearsay untested by cross-examination diminished the accuracy of the trial process. In one case, Roberts v. Russell ( 392 US 293, 294), the Court held that admitting a non-testifying co-defendant's statement in violation of Bruton v. United States ( 391 US 123) presented "a serious risk that the issue of guilt or innocence may not have been reliably determined." In the other case, Berger v. California ( 393 US 314, 315), the Court cited Russell in holding that admitting preliminary hearing testimony in violation of Barber v. Page ( 390 US 719) "may have had a significant effect on the `integrity of the fact-finding process.'" The language used in both cases — serious risk and significant impact — supports the conclusion that admitting testimonial hearsay not previously subjected to cross-examination creates a serious risk that an innocent person will be convicted.
See Schriro v. Summerlin ( 124 S Ct at 2525-2526) (finding pre- Teague retroactivity case "germane" for deciding whether a new rule satisfies the accuracy element of the second Teague exception).
But even if these federal precedents did not compel the conclusion that Crawford satisfies the accuracy element of the second Teague exception, that conclusion is required by People v. Eastman ( 85 NY2d 265). In Eastman, the Court of Appeals ruled that Cruz v. New York ( 481 US 186) applied retroactively on post-judgment review under CPL Article 440. In Cruz, the Supreme Court had ruled that the Confrontation Clause barred admitting the interlocking confession of a non-testifying co-defendant when the confession incriminated the defendant and was not admissible as direct evidence against the defendant ( 481 US at 193). In Eastman, after finding that Cruz had altered "a bedrock procedural element," the Court of Appeals concluded that Cruz was "central to an accurate determination of guilt or innocence" ( 85 NY2d at 276). In reaching that conclusion, the Court stated that a co-defendant's incriminating confession is "inevitably suspect," and that its unreliability is compounded when the co-defendant does not testify and his credibility cannot be tested by cross-examination ( id. at 274). In the Court's view, the admission of such evidence with no opportunity for cross-examination was "precisely the type of threat to the accuracy and fairness of a fair trial that the Confrontation Clause was designed to prevent" ( id.).
The same kind of threat to fairness and accuracy exists when testimonial hearsay is admitted in violation of Crawford. Under Crawford, testimonial statements also must be viewed with heightened suspicion because the "involvement of government officers in the production of testimony with an eye toward trial present[s] unique potential for prosecutorial abuse" ( 124 S Ct at 1367 n 7). And, here too, that unreliability is compounded when the statement is admitted, often based on a "mere judicial determination of reliability," without the declarant's being subjected to cross-examination ( id. at 1371). According to the analysis in Eastman, Crawford satisfies the accuracy element of the second Teague exception and applies retroactively on post-judgment review.
In reaching this decision, this Court disagrees with the Second Circuit Court of Appeals' decision in Mungo v. Duncan ( 393 F3d 327, 336 [2d Cir 2004]), which ruled that Crawford does not improve accuracy of the trial process overall enough to satisfy Teague. This Court does not follow Mungo for two reasons. First, Mungo's analysis that Crawford does not sufficiently improve accuracy overall conflicts with the Supreme Court's Teague analysis. Second, Mungo's analysis also conflicts with the New York Court of Appeals' analysis in Eastman, which this Court must follow when presented with such a conflict.
This Court understands Mungo to hold that Crawford does not sufficiently improve the accuracy of the trial process overall because "sometimes" Crawford will exclude evidence that, in fact, is reliable ( see Mungo v. Duncan, 393 F3d at 335-336). The Mungo opinion does not acknowledge the analysis in Crawford explaining that a testimonial hearsay statement is presumptively unreliable. In fact, Mungo renders that analysis irrelevant by ignoring that presumption and measuring accuracy based on a possibility that, in some number of cases, presumptively unreliable evidence, in fact, will be reliable. In other words, Mungo holds that Crawford does not improve accuracy overall even though it excludes evidence legally presumed to be unreliable.
This Court interprets Teague as supporting the conclusion that excluding presumptively unreliable evidence does significantly increase the overall accuracy of the trial process. The accuracy component of the second Teague exception is satisfied if violating the new rule creates an "impermissibly large risk" that an innocent person will be convicted ( Schriro v. Summerlin, 124 S Ct at 2525 [citing Teague v. Lane, 489 US at 312-313]). In this Court's view, that degree of risk exists when presumptively unreliable evidence is admitted at trial, regardless of the possibility that the evidence, in fact, will be reliable in an undetermined number of cases. By permitting a fact-finder to consider and base a verdict upon presumptively unreliable evidence, Mungo subverts Teague's goal of promoting accuracy by ensuring that the fact-finder determines guilt based on competent evidence ( see Caspari v. Bohlen, 510 US 383, 396 [finding that potential new double jeopardy rule would not apply retroactively when violation of new double jeopardy rule merely subjected defendant to another sentencing proceeding that enhanced accuracy "by ensuring that the determination is made on the basis of competent evidence"]).
In any event, this Court may not follow Mungo because it is inconsistent with the Teague accuracy analysis in Eastman. The analysis in Mungo would have required that Cruz not be applied retroactively. Although the interlocking confession of a co-defendant is, as Eastman described, "inevitably suspect," it is also true that "sometimes" those suspect statements, in fact, will be reliable. In those instances, then, Cruz "sometimes" will preclude reliable hearsay from evidence. Yet Eastman still concluded that a Cruz violation presented a serious threat to the accuracy and fairness of the trial process sufficient enough to satisfy the accuracy component of the second Teague exception. Because Eastman's analysis of Teague conflicts with the analysis used in Mungo, this Court must follow Eastman ( see People v. Brown, 235 AD2d 344, 344-345 [1st Dept 1997]).
As the New York Court of Appeals recently stated, Confrontation Clause violations are subject to constitutional harmless error analysis ( People v. Hardy, 2005 NY Slip Op 01263, *5 [citing People v. Eastman, 85 NY2d at 276]). A violation of constitutional law can be harmless error only if the error is harmless beyond a reasonable doubt ( see Chapman v. California, 386 US 18, 24; People v. Crimmins, 36 NY2d 230, 237). To make that determination, a court must evaluate the strength of the case without the erroneously admitted evidence and the causal effect that the error may have had on the jury's verdict ( see id. at 240). Under this standard, reversal is required if there is a "reasonable possibility that the error might have contributed to the defendant's conviction" ( id. at 238; accord People v. Hardy, 2005 NY Slip Op 01263, *5).
In assessing the strength of the evidence for felony murder, this Court finds that defendant's inculpatory statement to the police, when viewed in the light most favorable to the defendant, reasonably supported the non-slayer affirmative defense to felony murder and required it to be submitted to the jury for its consideration ( see People v. Johnson, 169 AD2d 498, 500 [1st Dept 1991] [instruction on affirmative defense to felony murder required if the defense is sufficiently supported by the evidence as viewed in the light most favorable to the defense]). In that statement, defendant said that she and her cohorts had planned to steal the money by stealth rather than by violence. According to her stated version of the plan, the defendant and another woman would enter the apartment and distract Perez with sex while two male cohorts entered and stole money. She stated that the plan did not include killing Perez and that she did not know how Fabrizio had obtained the gun. When viewed in the light most favorable to the defense, these admissions reasonably support the conclusion that defendant had no reasonable grounds to believe that another participant intended to engage in conduct likely to cause death or serious physical injury, or was armed with a deadly weapon or other instrument capable of causing serious physical injury ( see PL 125.25 [c], [d]).
The prosecution does not contend that defendant shot Perez or that she was armed with a deadly weapon, so defendant has established the first two statutory elements for that defense ( see PL 125.25 [3] [a], [b]).
The record also contained additional evidence that reasonably could be interpreted, when viewed in the light most favorable to the defendant, as sufficiently supporting the conclusion that defendant had reason to believe that she and her accomplices could carry out the crime without being armed with a deadly weapon or deadly instrument. Defendant reasonably could have expected to enter the apartment with little difficulty because she and Reyes had worked with Perez and knew him. She also had reason to believe that she and her cohorts could accomplish the theft, after Perez was distracted, without using violence or being armed. The absence of any weapons or weapons paraphernalia tended to show that the apartment was not heavily guarded. The police found no evidence of a security or alarm system that would have prevented defendant from letting in her male accomplices or alerted Perez that someone else was entering. The drug money also lay in open view, in cardboard boxes, in the next bedroom, not inside a safe or other secure container. Defendant worked at that location and presumably was familiar with all of these circumstances.
The best evidence against the affirmative defense came from the testimonial hearsay statements of Reyes and Fabrizio. In his confession, Fabrizio stated that, during the planning of the robbery, one of the female participants had shown him the gun and allowed him to handle it. In her confession, Reyes had stated that the robbery had been "all planned out," and that, as part of that planning, she had retrieved the gun and given it to the others. Each statement tended to establish that the gun was discussed and shown during the planning of the crime and, thus, tended to disprove the affirmative defense to felony murder. Moreover, Fabrizio's account of how the robbery had occurred — his immediately entering the bedroom and announcing a robbery — was not consistent with the nonviolent plan that defendant had described. On this record, there is a reasonable possibility that these statements might have contributed to the jury's rejection of the affirmative defense to felony murder ( see People v. Eady, 134 AD2d 362, 363 [2nd Dept 1987] [finding co-defendant's erroneously admitted confession, that he received gun from defendant, not harmless beyond a reasonable doubt because it tended to disprove the affirmative defense based on defendant's statement to police that he thought co-defendant was armed with a toy gun]; see also People v. Thompson, 156 AD2d 961, 961-962 [4th Dept 1989] [erroneous admission of non-testifying co-defendant's confession was harmless doubt because defendant's statement negated felony murder affirmative defense]). Indeed, the prosecutor's reliance on both statements during summation to urge the jury to reject the affirmative defense, and the jury's request during deliberations for a readback of Reyes' plea allocution and Fabrizio's confession, provide further support for the conclusion that these statements might have contributed to the guilty verdict for felony murder ( see People v. Hardy, 2005 NY Slip Op 01263, * 6 [citing prosecutor's use of plea allocution in summation and jury's request for the allocution in finding that Crawford error was not harmless beyond a reasonable doubt]).
This Court concludes, however, that the Crawford violation is harmless for defendant's convictions for robbery. She may have had reasonable ground to believe that none of her accomplices were armed or intended to engage in conduct likely to cause death or serious physical injury, but she surely entered the apartment knowing and intending for some lesser degree of force to be used to complete the crime if the plan went awry, and she willingly assisted in that endeavor. Her conduct therefore overwhelmingly establishes accessorial guilt for second-degree robbery (PL 160.10) and first-degree robbery (PL 160.15). She is guilty of first-degree robbery even if she lacked knowledge that an accomplice possessed a gun during the robbery ( see People v. Lewis, 277 AD2d 1010, 1011-1012 [4th Dept 2000]). Consequently, the motion based on Crawford grounds is denied for defendant's convictions of robbery in the first and second degrees.
II. The Non-Disclosure of the Recantation Did Not Violate Due Process In Brady v. Maryland ( 373 US 83, 87), the Supreme Court ruled that the prosecution violates due process by suppressing evidence favorable to the defendant if the evidence is material either to guilt or to punishment, regardless of good or bad faith by the prosecution. The prosecution's duty to disclose favorable evidence includes not only exculpatory evidence but impeachment evidence ( United States v. Bagley, 473 US 667, 676-677). Under the Brady rule, favorable evidence is material if there is a reasonable probability that the outcome of the trial would have been different if the suppressed evidence had been disclosed ( id. at 682; but see People v. Vilardi, 76 NY2d 67, 77 [adopting "reasonable possibility" standard as a matter of state constitutional law if defendant makes specific discovery request]). New York has long recognized that a prosecutor has a duty to deal fairly with the defendant at trial ( People v. Savvides, 1 NY2d 554, 557).
To obtain reversal for a Brady violation, the defendant must make three showings. First, the undisclosed evidence must have been favorable to the defense, either because it was exculpatory or impeaching ( Strickler v. Greene, 527 US 263, 281-282). Second, the evidence must have been suppressed by the prosecution ( id. at 282). Third, the suppression of the evidence must have been prejudicial, i.e., the evidence must have been material to guilt or punishment ( id.).
Defendant has shown that the undisclosed evidence was favorable to the defense. The recantation was standard impeachment. Under the rules of evidence, defendant would have been permitted to admit Fabrizio's recantation to impeach the evidence that he had confessed his participation in the crime to Miami police ( see People v. DelValle, 248 AD2d 126, 127 [1st Dept 1998]; People v. Jackson, 2002 WL 1798837 [Sup Ct, Kings County 2002]). Indeed, the prosecution does not dispute that the evidence was favorable and, thus, subject to disclosure under Brady. Rather, the prosecution contends that the evidence was not suppressed and not material.
In deciding whether the evidence was suppressed by the prosecution, this Court must examine the conduct of not only the prosecution but the defense. The Brady rule ensures defense access to exculpatory evidence unknown to the defense ( see United States v. LeRoy, 687 F2d 610, 619 [2d Cir 1982] [ Brady rule designed "not to supply a defendant with all the evidence in the Government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government"]). So evidence is not considered suppressed under Brady, regardless of the prosecution's conduct, if the defendant knew or reasonably should have known that the exculpatory evidence existed ( see People v. LaValle, 3 NY2d 88, 110).
This Court finds that the recantation was not suppressed here because defense counsel reasonably should have known about the recantation. The record establishes that defense counsel had been aware that Fabrizio's trial had commenced and knew when it had completed. Although this information did not put defense counsel on notice that the proceedings contained any specific information or evidence favorable to his client, defense counsel should have been aware that, in all probability, the trial would have produced some evidence that could be defined as favorable for his client. In that context, defense counsel had an obligation to pursue that probability by contacting the trial attorney for Fabrizio to find out what evidence had been disclosed at his trial, and this Court concludes that defense counsel would have discovered the recantation if counsel had taken that step. Notably, nothing in the record suggests that Fabrizio's attorney would have been unavailable for such consultation or not cooperated with defense counsel in his effort to find out what the evidence had shown at Fabrizio's trial.
This Court disagrees with defense counsel that the evidence at Fabrizio's trial would not be relevant to raising the non-slayer affirmative defense for defendant at her trial. Defense counsel would be relying on defendant's pretrial statements to police to provide a factual basis for that defense, and defense counsel should have wanted to review the trial record for any testimony or evidence that corroborated the information in defendant's statements or otherwise supported her defense. For example, the responding police officers and crime scene detectives testified about the layout of the apartment, the contents of the apartment, and the overall low security at the apartment, all of which was testimony that tended to support defendant's version of events and a belief that nobody would be armed during the robbery. Counsel preparing for trial should want to know, before going to trial, how much of this evidence would be supplied by the prosecution's case.
In reaching this conclusion, this Court cautions the prosecution against presuming that evidence will not be considered suppressed under Brady simply because the evidence is revealed in a public legal proceeding ( see United States v. Payne, 63 F3d 1200, 1208-1209 [2d Cir 1995] [government's duty to disclose document containing exculpatory information is not eliminated merely because document was in a public court file]). The legal proceeding must be one likely to produce evidence favorable to the defense ( see United States v. Locke, 1999 WL 558130, *3 [ND Ill 1999] [defense counsel knew that co-defendant was pleading guilty, but had no reason to know that co-defendant would exculpate defendant during a guilty plea]). Defense counsel has no duty to monitor the legal proceedings of a co-defendant because of the possibility that they might produce favorable evidence ( see id. [rejecting that Brady imposes blanket rule demanding defense counsel to attend or obtain costly transcripts of every court proceeding involving a co-defendant]). And prosecutors should not assume that co-defendants always have a relationship that facilitates the sharing of evidence and information between defense counsel. Consequently, this Court reminds the District Attorney's Office that if the prosecution possesses evidence favorable to the defense, the Brady rule requires that the evidence be disclosed.
Nevertheless, even if the recantation had been suppressed, this Court still would find no Brady violation because defendant cannot establish that she was prejudiced by the non-disclosure. Recantations are notoriously unreliable ( see People v. Shilitano 218 NY 161, 170), particularly when made by someone seeking to avoid the consequences of self-incrimination. Fabrizio's trial recantation had little, if any, impeachment value; it was patently implausible and self-serving. Moreover, the prosecution at defendant's trial would have been permitted to introduce a certain amount of highly credible and believable evidence to rebut the recantation and corroborate the authenticity of the confession. Under these circumstances, no reasonable possibility existed that the jury would have accepted Fabrizio's recantation as truthful. In this instance, the recantation was not material to defendant's guilt.
Nor must the motion to vacate judgment be granted on the basis of People v. Behling ( 26 NY2d 651). In Behling, the prosecutor had argued in summation that the co-defendant had made statements implicating the defendant in the crime, but had failed to advise the jury that the co-defendant had recanted those statements some time after making them. The Court ruled that the prosecutor's conduct was improper regardless of whether the defense knew about the recantation or whether the prosecutor believed that the statements were untruthful ( id. at 652). Without discussing the facts of the case or engaging in any formal harmless error analysis, the Court ruled that the prosecutor's impermissible conduct required reversal ( id.).
This Court disagrees with defendant's argument that a Behling violation requires reversal regardless of harm. Defendant correctly argues that the misconduct that occurred in Behling violated the prosecutor's duty to deal fairly with the defendant a trial, and that the Court of Appeals had suggested in Savvides that such misconduct might require reversal "regardless of the quantum of guilt or the asserted persuasiveness of the evidence" ( 1 NY2d at 557). Nevertheless, the Court of Appeals has since ruled that harmless error analysis applies to cases decided on Savvides principles ( see People v. Steadman, 82 NY2d 1, 8-9 [recognizing that the applicability of harmless error analysis to a violation of Savvides principles had "been open to some question" and expressly holding that such errors are subject to harm analysis). For the reasons stated earlier, the prosecutor's conduct here — even if in violation of Behling — did not prejudice the defense.
Although Behling did not cite Savvides, Behling did cite People v. Ahmed ( 20 NY2d 958 [1967]), which explicitly cited and relied on Savvidis.
Lastly, this Court denies that part of the motion alleging that suppression of Fabrizio's recantation precluded this Court from properly determining the admissibility of Fabrizio's custodial statement. Although technically relevant to that determination, the recantation did not render the custodial statement inadmissible as a declaration against penal interest under the case law that existed at the time ( see People v. Thomas, 68 NY2d 194). The recantation provided a contrary account of the interrogation that affected its weight but not its admissibility.
CONCLUSION
When this Court conducted defendant's trial eight years ago, the two declarations against penal interest were admitted into evidence in compliance with the then existing law and properly considered by the jury that found her guilty. Seven years after the jury returned that verdict, the Supreme Court altered the constitutional rule governing the admissibility of those statements, and the law requires that the new rule be applied retroactively to defendant's case on post-judgment review. Unlike in other cases that have ruled Crawford applies retroactively on post-judgment review, in this case, the erroneously admitted evidence potentially affected the outcome of the trial. Under these circumstances, defendant is entitled to have another jury decide her guilt on the charge of felony murder in the second degree.
See People v. Dobbin, 2004 WL 3048648, 2004 NY Slip Op 24534 (Sup Ct, NY County 2004); People v. Watson, 5 Misc 3d 1013(A), 2004 NY Slip Op 51364(U) (Sup Ct, NY County 2004).