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People v. Shabazz

Court of Appeals of New York

October 15, 2013

The PEOPLE of the State of New York, Respondent,
v.
Omar SHABAZZ, Appellant. The People of the State of New York, Respondent,
v.
Donald Perrington, Appellant.

[977 N.Y.S.2d 142] Robert S. Dean, Center for Appellate Litigation, New York City (Barbara Zolot of counsel), for appellant in the first above-entitled action.

David K. Bertan, Bronx, for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Susan Gliner and Britta Gilmore of counsel), for respondent in the first and second above-entitled actions.

Page 897

OPINION

MEMORANDUM.

[999 N.E.2d 505] The order of the Appellate Division should be reversed and a new trial ordered.

Defendants and a female codefendant were passengers in an automobile that was stopped by the police. All the occupants were charged with second-degree weapon possession after the officers observed a loaded handgun protruding from a handbag near the rear seat of the vehicle where the woman had been sitting.

During the course of pretrial proceedings, the female codefendant had a conversation with Perrington's lawyer in which she stated that the gun belonged to her. At her separate trial, however, the woman testified that the firearm was not hers and she was acquitted of weapon possession.

Page 898

Defendants were tried jointly and they requested that Perrington's (now-former) attorney be allowed to testify about the female codefendant's acknowledgment of gun ownership under the declaration against penal interest exception to the hearsay rule. Supreme Court held that the statement was inadmissible because the woman's unavailability had not been proven and the statement lacked reliability. Defendants were subsequently convicted of second-degree weapon possession. The Appellate Division affirmed ( 89 A.D.3d 529, 932 N.Y.S.2d 472 [1st Dept.2011] ) and a Judge of this Court granted leave to appeal (19 N.Y.3d 1000, 1001, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012] ).

We now reverse. The declaration against penal interest exception to the hearsay rule " recognizes the general reliability of such statements ... because normally people do not make statements damaging to themselves unless they are true" ( People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226 [1987]; see e.g. People v. Maerling, 46 N.Y.2d 289, 297, 413 N.Y.S.2d 316, 385 N.E.2d 1245 [1978] ). The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability ( see e.g. People v. Brensic, 70 N.Y.2d at 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978] ). The fourth factor is the " most important" aspect of the exception [999 N.E.2d 506] [977 N.Y.S.2d 143]( People v. Thomas, 68 N.Y.2d 194, 200, 507 N.Y.S.2d 973, 500 N.E.2d 293 [1986] ). Assuming that the other elements are satisfied, such statements can be admissible if there is " a reasonable possibility that the statement might be true" ( People v. Settles, 46 N.Y.2d at 169-170, 412 N.Y.S.2d 874, 385 N.E.2d 612).

We conclude that the courts below erred by focusing on the inconsistency between the female codefendant's trial testimony and her pretrial statement to Perrington's lawyer. Knowledge that a declaration is against penal interests must be assessed " at the time" it was made ( People v. Osorio, 75 N.Y.2d 80, 86, 550 N.Y.S.2d 612, 549 N.E.2d 1183 [1989] ), and later recantations generally affect the weight and credibility that a factfinder should ascribe to the statement. Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case: the handgun was found in a handbag located in the rear of the automobile directly adjacent to the female codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement

Page 899

was against her interests. Contrary to the dissent's contention, there was also sufficient proof that the woman was not available to testify. Finally, the exclusion of the statement cannot be deemed harmless because the People's case was not ...


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