The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Defendant, a former member of the New York City Police Department, was charged with twelve counts of perjury in the first degree (Penal Law § 210.15). The charges arose after defendant falsely answered questions posed to him on cross-examination during the criminal trial of Erik Crespo.
Defendant was the lead investigator in the case against Crespo, who was suspected of shooting and severely injuring another man in the Bronx. Defendant questioned Crespo inside a precinct interrogation room regarding the shooting. Among other questions, defendant asked Crespo where he procured the gun used in the shooting and what he did with it. During this interrogation, which lasted approximately 80 minutes, defendant never read Crespo his Miranda warnings. Crespo answered defendant's questions and confessed to the shooting. Unbeknownst to defendant, Crespo had recorded the entire interrogation on his MP3 player.
After the interrogation, defendant allowed Crespo's mother and aunt into the interrogation room. Crespo then told his mother "He wants to know why I shot him." The admissibility of this statement was at issue at a pretrial hearing in the Crespo case; the court ruled that it was admissible as a spontaneous declaration.
At Crespo's trial, defense counsel, who had, by then transcribed the recorded interrogation, asked defendant numerous questions regarding the interrogation. As relevant to this appeal, defendant testified as follows:
"[Q]uestion: Now, you said on direct examination that you never asked [Crespo] any questions when you were alone with him in the room on December 31, 2005, isn't it true? Answer: "That's correct. He wasn't questioned."
"[Question]: Did you ever ask him, where did you get the gun?"
"[Question] Did you ever ask him, what did you do with the gun?"
Throughout the Crespo trial, defendant denied ever interrogating Crespo about the shooting. He testified that the only statement made by Crespo was his spontaneous statement to his mother. When confronted with a transcript of the entire interrogation, defendant denounced the transcript as a fabrication. Because of defendant's false testimony at Crespo's trial, the People agreed to a reduced plea offer for Crespo.
A bench trial was held on the perjury charges against defendant. He was found guilty of three counts of perjury in the first degree and of one count of perjury in the third degree.
As relevant to this appeal, the Appellate Division modified(76 AD3d 456 [1st Dept 2010]), by finding that although the evidence was legally sufficient to establish defendant's intent to commit perjury, the two answers pertaining to the gun were not material to the Crespo prosecution(id. at 460). Thus, it reduced the convictions on those two counts of perjury in the first degree to perjury in the third degree, and affirmed as to the other counts on which defendant was convicted (id.).
A Judge of this Court granted the People and defendant leave to appeal. Their primary contentions concern whether defendant's statements ...