The opinion of the court was delivered by: Jones, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We are called upon to determine whether the inability to recall an unavailable witness violated defendant's rights under the Confrontation Clause. We find it did not.
In June 2004, defendant and his friend, Carlos Gonzalez, were implicated in the shooting of Robinson Lopez. The victim died from multiple gunshot wounds. Defendant was charged with murder in the second degree and criminal possession of a weapon in the second and third degrees.
At trial the prosecution had relied upon the testimonies of Loraine Ceballo and Tamika Taylor, two witnesses to the shooting. Ceballo, the prosecution's key witness, had close relationships to the victim, Gonzalez and Taylor.
According to Ceballo's testimony, Gonzalez arrived at her apartment building with defendant. She testified that she watched the men approach the victim, saw them both raise their hands and then heard gunshots. She indicated that both men appeared to have objects in their hands, though she could not see what the objects were. After Ceballo heard the shots, she ran towards her building, and Gonzalez and defendant ran past her through the building's lobby.
After Ceballo's testimony, but before Taylor's, Ceballo and Taylor were brought to the District Attorney's Office for an interview. At the interview, Taylor initially denied being present during the shooting. She subsequently admitted to being present but only after being confronted with Ceballo's account. She also informed the interviewers that Gonzalez had given Ceballo a gun. At first, Ceballo denied receiving any gun, but she eventually admitted to the subsequent events which she had omitted from her prior interviews and testimony. These facts were later stipulated to by the parties.*fn1
The next day, Taylor testified that she only saw Gonzalez with a gun, but she could not describe where defendant was positioned. She saw the two men run to the building door, wait for Ceballo to open the door and run into the lobby. Taylor further stated that Gonzalez put "something" in Ceballo's purse. The two women went into the building's elevator, and Ceballo stated: "What am I going to do with the guns . . . I don't want this in my house." Taylor stated that she saw one gun, but was unsure if there was more than one.
After Taylor's testimony, it was revealed that Ceballo had a breakdown and twice attempted suicide. It was concluded that she would be unable to be recalled testify again.
Since Ceballo couldn't be recalled, defendant moved for a mistrial or to strike her testimony. Defendant argued that Ceballo's material omissions and Taylor's subsequent testimony, which brought to light Ceballo's omissions, resulted in the denial of his right to confront his accuser. The court denied defendant's motion. Montes was convicted, after a jury trial, of criminal possession of a weapon in the third degree, but acquitted of murder in the second degree and criminal possession of a weapon in the second degree.
The Appellate Division affirmed, with one Justice dissenting. We too affirm. The trial court did not abuse its discretion in denying defendant's motion for a mistrial or to strike Ceballo's testimony because the inability to recall Ceballo did not violate defendant's rights under the Confrontation Clause.
Pursuant to both the Federal and State Constitutions, an accused has the right "to be confronted with the witnesses against him'" at trial (US Const., 6th Amend; NY Const., art. I, § 6; see Pointer v Texas, 380 US 400 ). The Confrontation Clause "has been held to include the right to cross-examine those witnesses" (Pointer, 380 US at 401). In Delaware v Fensterer (474 US 15 ), the United States Supreme Court explained the two categories within which Confrontation Clause cases fall. Specifically, those "cases involv[e] the admission of out-of-court statements and . . . restrictions imposed by law or by the trial court on the scope of cross-examination" (Delaware v Fensterer, 474 US 15, 18 ). We agree with the concurrence that the Fensterer categories do not encompass all possible Confrontation Clause violations. But no authority holds, and we see no reason to hold, that the right of confrontation includes a right to recall a witness and confront her about things she did or said after her cross-examination, conducted without any restriction of which defendant complains, was already completed.
Here, Ceballo's unavailability was neither imposed by law nor restricted by the trial court. Defendant exercised his right to cross examine Ceballo regarding her direct testimony. Ceballo became unavailable -- due to mental illness -- only after the conclusion of her testimony. Thus, these facts do not result in a violation of defendant's right to cross-examine the witness. Additionally, Taylor's testimony and the parties' stipulation revealed Ceballo's out-of-court statements concerning Gonzalez giving her a "gun or guns." Those statements, however, alerted defendant to the new information that afforded defendant the opportunity to attack Ceballo's credibility. Because those outof-court statements tended to help defendant, he did not challenge them. For those reasons, there is no violation of defendant's right to confront his accuser.
Accordingly, the Appellate Division order should be affirmed. ...