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People v. Kass

December 9, 2008


APPEAL by the defendant from a judgment of the Supreme Court (Mark H. Spires, J.), rendered February 25, 2005, in Queens County, convicting him of conspiracy in the second degree and criminal solicitation in the second degree, upon a jury verdict, and imposing sentence.

The opinion of the court was delivered by: Fisher, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


(Ind. No. 86/03)


In this extraordinary case, we find that the defendant was deprived of a fair trial by the combination of the trial court's mishandling of hearsay objections and its refusal to give a missing witness charge as to a registered jailhouse informant. Accordingly, we reverse the judgment and order a new trial.

While incarcerated and awaiting trial on an embezzlement charge, the defendant allegedly asked a fellow inmate to introduce him to people who, for money, would be willing to kill two witnesses who were expected to testify against him. The inmate turned out to be a registered jailhouse informant who, at the time, was working with police on another case in which he reported that a different prisoner had also solicited his help in hiring a hit man. In the words of the lead detective in that case, in return for his help, the informant was looking for a "get out of jail free card."

After the informant alerted the police to the defendant's alleged request, an investigation was begun involving undercover police officers posing as contract killers. The investigation ultimately led to the defendant's arrest. At trial, the position of the defense was that it was the informant who had first suggested, and then insisted, that the defendant speak with "hit men," and that the defendant had done so only because he was afraid of the informant. Remarkably, the defendant's claim that he feared the informant was supported at trial, not only by his own testimony and the testimony of a fellow inmate, but also by the testimony of three Correction Officers, one a Captain, who, among other things, confirmed that the defendant had urgently requested an immediate transfer to a different part of the jail to get away from the informant.

The prosecution offered evidence at trial that, after learning of the defendant's alleged interest in arranging a murder-for-hire, undercover officers posing as hit men made contact with him through the informant. The defendant agreed to speak with them over the telephone and to meet one face-to-face at Rikers Island. Notably in that regard, the Correction Officers testified that, when asking for a transfer, the defendant had explained that the informant was insisting that he speak with someone on the phone and meet with a stranger at the jail, and wanted him to say something that he did not want to say. According to one Correction Officer to whom the defendant described his situation in greater detail, the defendant told him specifically that he did not want to hire anyone to make a "hit." Significantly, the defendant's conversations with the Correction Officers occurred before he was given any reason to believe that he was under investigation.

The undercover police officers tape recorded all of their conversations with the defendant. Many extended portions of the tapes were inaudible, but the prosecution claimed that the audible portions confirmed that the defendant wanted the witnesses killed and was willing to pay someone to do it. The defendant, on the other hand, offered a different interpretation of the recorded conversations. He testified that not only did he have no intention of harming the witnesses but also, having been told that the "hit men" would take no action without first receiving partial payment, he stalled them by never paying them anything despite their persistent demands for money. The tapes confirm that the defendant repeatedly assured the undercover officers that his cousin was flying to New York with the money to pay them, but there was no evidence that the defendant even had a cousin, much less that any cousin of his was planning to come to New York with money. And it is undisputed that no money ever changed hands.

The jury nevertheless convicted the defendant of conspiracy in the second degree and criminal solicitation in the second degree. On appeal, the defendant argues, inter alia, that the police engaged in egregious misconduct which, in effect, manufactured the crime and thereby violated his due process rights. He also argues that the trial court made a number of erroneous rulings that collectively deprived him of a fair trial.

We reject the defendant's contention that the conduct of the police violated his due process rights. To the contrary, the reaction of the police to the information they received was entirely appropriate. A registered informant reported that an inmate in a City jail was attempting to arrange the murder of two witnesses. Upon receiving such information, the police were duty bound to protect the alleged targets and pursue an investigation (see People v Moe, 227 AD2d 253). They did the first by notifying the targets and offering them police protection; they did the second by using undercover officers to make contact with the defendant to explore his intentions. Contrary to the defendant's contentions, there is no showing here of a due process violation as there was no evidence that the police set out to manufacture rather than investigate a crime, or that they engaged in criminal or improper conduct repugnant to a sense of justice, or that they persistently solicited the defendant to commit the crime in the face of his unwillingness to do so, or that their desire was solely to obtain a conviction rather than to prevent the crime and protect the alleged targets (see People v Isaacson, 44 NY2d 511, 521; People v Spence, 39 AD3d 673; People v Colon, 289 AD2d 253, 253-254; People v McDougal, 221 AD2d 374). We turn, then, to the defendant's claim that a combination of trial errors deprived him of a fair trial.

To convict the defendant of the charged crimes of conspiracy in the second degree and criminal solicitation in the second degree, the People were required to prove beyond a reasonable doubt, inter alia, that the defendant actually intended that the named targets be killed (see Penal Law ** 100.10, 105.15). The defendant testified that he harbored no such intent and that he agreed to speak with the "hit men" only because the informant had continually pressured him to do so, at one point warning him that "if you jerk my friends, I will snap your head like a twig."

The principal issue at trial, therefore, was whether the defendant had the requisite intent for the commission of the charged crimes, that is, whether he actually intended that the witnesses be killed, or, instead, having no such intent, had agreed to speak to the "hit men" only because of unrelenting pressure exerted on him by the informant. We do not quarrel with our dissenting colleagues' assertion that, on the audible portions of the tapes, the defendant is heard responding to statements made by the undercover officers in ways that might well be construed as consistent with an intent to arrange a contract killing. As our dissenting colleagues correctly observe, for example, the recorded conversations "included, inter alia, the defendant's affirmative agreement . . . that the victims be 'taken care of,' that one victim will get 'two in his head' and the other taken some place to 'put him out' in ways to make them look like victims of random crime, and that the defendant's 'problems are going to be eliminated.'" Those words certainly were spoken, but not by the defendant.

Posing as a hit man, Detective James MacDonald had a telephone conversation with the defendant on January 17, 2003. In pertinent part, the exchange was as follows:

"Detective MacDonald: [W]e're good to go, we're all set up.

"Defendant: Ok.

"Detective MacDonald: Ok. 'Cause what do you call it, let me tell you somethin'. Dave is takin' care of one, I'm takin' care of the other.

Defendant: Ok.

"Detective MacDonald: And then your cousin's going to give us the money? As soon as I get the money in hand, Dave's gonna make his visit, I'm gonna make my visit.

"Defendant: Ok.

"Detective MacDonald: Your problems are going to ...

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