Opinion
December 30, 1970
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered December 31, 1969, convicting him of murder and of attempted robbery in the first degree, upon a jury verdict, and sentencing him to concurrent terms of 15 years to life on the murder charge and a maximum of 15 years on the attempted robbery charge. Judgment reversed, on the law, and new trial ordered. Defendant was charged with a murder committed while engaged in an attempted robbery on March 4, 1969, at a plastics factory in East Farmingdale. In opening to the jury, the prosecutor stated that he was going to produce a witness "to show you that he was in on the planning of this [the robbery] but [he] didn't go. He will identify Price for you as being one of the two who did go." The witness referred to was Charles McDaniel Drayden. It appeared that on March 7, 1969, Drayden gave a sworn statement to the police wherein he averred that about a week prior thereto he was walking toward the Club 8 in Amityville when he saw defendant in an automobile which he later entered; that when the car reached the Club 8 defendant told him that they were going to pull a stickup in a plastics factory in East Farmingdale and asked Drayden if he wanted to participate; that Price told him the job would be done on a Tuesday; and that he told Price he could not participate and he never saw him again. The attempted robbery and the homicide took place on a Tuesday (March 4, 1969). At the trial the People introduced into evidence a confession by Price. Thereafter Drayden was called as a witness by the People. He admitted he knew Price. However, when he was asked if he had seen Price on March 1, 1969 at the Club 8 he answered in the negative. He denied having seen Price at all on that day and he denied getting into an automobile with him that day. He also denied having a discussion with Price concerning a robbery of a plastics factory but, when shown the statement with his signature on it, admitted the signature might be his. He was allowed to read the statement and he then denied he had told the police what was contained in it. Drayden was then declared a hostile witness on the application of the prosecutor and the statement was marked for identification. On cross-examination he testified that he had seen the prosecutor prior to the trial and had told him that he would not testify against Price. A detective was then called and he testified that Drayden's written statement was the latter's prior oral statement to this witness, reduced to writing, and that Drayden signed it in his presence. The People offered the statement in evidence and the trial court, over objection, permitted the prosecutor to read the statement in its entirety to the jury after advising the jury that the statement was received solely for the purpose of impeaching Drayden's testimony and that it could not be considered proof on the issue of defendant's guilt or innocence. The statement was to some extent corroborative of Price's confession. In its charge to the jury the trial court cautioned them again that the statement did not constitute affirmative evidence against defendant but that it did go to the credibility of the witness. The court noted that the prosecutor in his opening had described the witness and that the witness, when taking the stand, claimed to have known nothing even after being confronted with the statement. The court charged that it was a question for the jury whether Drayden was telling the truth and that the jury was to decide whether he was truthful when he said he did not know the things contained in the statement. Following the commencement of its deliberations, the jury sent a note to the court requesting that three items of evidence be sent to it. Among these items were Drayden's statement and defendant's confession. The court complied with the request. The only competent evidence tending to connect defendant with the commission of the crimes with which he was charged was the confession. We are of the view that in the context of this case it was error to read the statement to the jury and that this error was compounded by the act of sending the statement into the jury room during their deliberations. There is no doubt that such a statement could only be used to impeach Drayden's credibility and that it could not be considered on the issue of defendant's guilt or innocence ( People v. Ferraro, 293 N.Y. 51, 56; see Code Crim. Pro., § 8-a). However, before a prior inconsistent statement may be used to impeach a witness it must be shown that the statement is inconsistent with the witness' testimony (see People v. Welch, 16 A.D.2d 554). Here Drayden was not asked in detail as to the specifics of the various statements contained in the statement in an effort to probe his recollection (see Bullard v. Pearsall, 53 N.Y. 230; People v. Troche, 32 A.D.2d 1055, affd. 26 N.Y.2d 820). He was merely asked if he had made a statement regarding a discussion he allegedly had had with Price and, after he denied having done so, the statement was read to the jury. Here there was nothing to impeach, because Drayden said nothing which bore on the guilt or innocence of Price. However, the statement could have been used to show why Drayden was called and to probe his recollection ( Bullard v. Pearsall, supra). To go beyond this by reading the statement and then allowing the jury to have it during its deliberations along with Price's confession was error. The sole conclusion favorable to the People to which they were entitled was that Drayden lied when he said he had not given a statement to the police. The identification of the statement by the detective having been established, the jury could properly conclude that Drayden had lied. However, in the context of this case, there was no reason to permit the entire statement to be read to the jury, for the statement, unless corroborated by Drayden from the witness stand, was mere hearsay and could not have been considered for the truth of the matter asserted in it. In People v. Welch ( 16 A.D.2d 554, 559, supra), the court noted the danger inherent in this type of case when it said: "The vice of conducting the examination, as was done here, is that the cautionary instructions of the court, if they had been given, would have been without meaning to the jury because the quotations from the affidavits were contradictory of nothing. The result of the method adopted was that the jury of necessity considered the portions of the affidavit as read and the entire statement as received in evidence as having substantial, independent, testimonial value." Despite the court's charge that the statement was to be considered only on the issue of Drayden's truthfulness, its act of sending the statement to the jury, upon their request, along with Price's confession, effectively destroyed the prior warning. The jury had no right to see the statement and its request clearly indicates that it improperly considered the statement on the issue of defendant's guilt. We have considered all the other issues raised by defendant and have found them to be without merit; and thus, were we not reversing for the reasons set forth above, we would affirm the judgment. Rabin, Acting P.J., Martuscello and Benjamin, JJ., concur. Munder, J., dissents and votes to affirm the judgment, with the following memorandum, in which Kleinfeld, J., concurs: As I see it, the majority finds reversible error in that Drayden's statement was read to the jury and that the jury was thereafter permitted to examine it firsthand. I find no error in either regard. There is specific statutory authority for the admission into evidence of a statement such as the one made by Drayden. Section 8-a of the Code of Criminal Procedure provides that such a statement may be introduced for impeachment purposes. That was what was done here. At the time the statement was introduced, the trial court made clear to the jury that it was to be considered solely to impeach Drayden's testimony and not as proof of defendant's guilt. This caution was again emphasized in the court's charge. This procedure is "`so firmly imbedded in our law of evidence that the citation of authority is scarcely required'" ( People v. Freeman, 9 N.Y.2d 600, 605; see, also, People v. Askew, 19 A.D.2d 130). Interestingly, the majority points to no particular portion of the statement which it claims is hearsay or prejudicial and therefore should have been excluded (see, e.g., People v. Welch, 16 A.D.2d 554, 558-559). Drayden was asked at the trial whether he had seen defendant on March 1, 1969 at the Club 8, whether he had seen defendant at all on that day, whether he had been in an automobile with him on that day and whether he had discussed a robbery of a plastics factory with him. The witness responded in the negative to all these questions. Only then was his statement offered by the People. Under these circumstances, the entire statement was properly admitted and considered (see People v. Troche, 32 A.D.2d 1055, affd. 26 N.Y.2d 820, cert. den. 400 U.S. 837). Once the statement was admitted into evidence, albeit for a limited purpose, the jury was free to examine it just as it would any other exhibit offered as proof.