Opinion
2015-06-09
The PEOPLE of the State of New York, Respondent, v. Donnie JONES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Nicolas Schumann–Ortega of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Nicolas Schumann–Ortega of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered August 13, 2013, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
The court properly exercised its discretion in precluding evidence that defendant's friend allegedly told witnesses that he, rather than defendant, assaulted the victim. This hearsay evidence did not satisfy the reliability requirement for admissibility under the exception for declarations against penal interest ( see People v. Settles, 46 N.Y.2d 154, 167–170, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978] ), or under a due process theory ( see Chambers v. Mississippi, 410 U.S. 284, 298–302, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ). Defendant's friend told defense counsel that he neither committed the assault nor made the alleged statements, the statements were contradicted by trial witnesses who testified that the friend was nearby but did not participate in the assault, the statements were allegedly made to persons closely aligned with defendant, and recorded phone calls raised suspicion that defendant had made efforts to manufacture exculpatory evidence. All these factors undermined any reliability this hearsay evidence may have had ( see e.g. People v. Thanh Giap, 273 A.D.2d 54, 55, 709 N.Y.S.2d 62 [1st Dept. 2000], lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375 [2000] ), and it was far removed from the trustworthy third-party confessions at issue in Chambers.
The court properly denied defendant's application for a material witness order since he failed to establish “reasonable cause to believe” that the proposed witness possessed “information material to the determination” of the case (CPL 620.20[1][a]; see People v. Parsons, 18 A.D.3d 317, 795 N.Y.S.2d 37 [1st Dept.2005], lv. denied 5 N.Y.3d 792, 801 N.Y.S.2d 813, 835 N.E.2d 673 [2005] ).
We perceive no basis for reducing the sentence.