Summary
In Shu, the defendant, who had been charged with criminal possession of a gun, induced another person to hire an attorney and to tell the attorney that he wanted to confess that he had been the gun's sole possessor.
Summary of this case from People v. NormanOpinion
June 8, 1995
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
While the evidence supporting each defendant's conviction of criminal possession of a weapon was overwhelming, the evidence of offering a false instrument for filing (Penal Law § 175.35) was legally insufficient. The evidence established that, with intent to escape corruptly liability for possession of a weapon, defendants induced a coconspirator to retain an attorney and to advise this attorney of his desire to confess sole responsibility for the weapon that defendants were charged with possessing, whereupon the attorney, on his own initiative, directed the coconspirator to put his confession in the form of an affidavit, which the attorney then forwarded to defendant Chin's attorney, who, in turn, forwarded it to the prosecutor, neither attorney being aware of the falsity of the affidavit. While the crime of offering a false instrument for filing may be accomplished through an innocent intermediary ( People v. Bel Air Equip. Corp., 39 N.Y.2d 48, 55; Penal Law § 20.05), the guilty party must, at the very least, contemplate or understand that a writing of some sort will be involved ( see, People v. Gurino, 143 A.D.2d 362). In the instant case, while there was evidence that defendants may have foreseen that the coconspirator's false confession might, at some point, be reduced to writing and "filed" with the prosecutor, defendants could just as easily have contemplated that the coconspirator could accomplish his corrupt mission by making a purely oral confession, which would not satisfy the elements of offering a false instrument for filing. Accordingly, this count must be dismissed, rendering academic the various other issues raised by defendants specifically relating to that count.
Defendant Chin's speedy trial motion was properly denied. The period from April 15 to June 16, 1991 was excludable because defendant Chin made an explicit written request for the Grand Jury presentation to be delayed for the People to investigate his claim of innocence, and because the People made reasonably diligent efforts to investigate that claim during that time period ( see, People v. Azcona, 180 A.D.2d 690, lv denied 80 N.Y.2d 828). Since there was no includable time following September 23, 1991, when the People simultaneously filed the indictment and a statement of readiness in Criminal Court, where the case was still pending ( cf., People v. Kendzia, 64 N.Y.2d 331, 337), there was not enough includable time to require dismissal.
Defendants' motion to suppress physical evidence was properly denied on the basis of the "automobile exception" ( People v Belton, 55 N.Y.2d 49), there being ample probable cause, supplied by a citizen-eyewitness and corroborated by other information, to arrest defendants and to search their vehicle for a weapon.
Defendant Shu's motion to suppress a statement was properly denied. The record supports the court's finding that even assuming the continued effectiveness of a cooperation agreement giving Shu use immunity with respect to statements he might make in his continuing capacity as a confidential informant, that agreement did not cover a false, self-serving statement concerning a new crime. In any event, any error in this regard would be harmless beyond a reasonable doubt because of the overwhelming evidence of guilt and lack of impact of the statement.
The court did not abuse its discretion in receiving various evidence that merely suggested possible gang affiliation and other uncharged criminal activity, and was not without relevance ( see, People v. Boyd, 164 A.D.2d 800, 802, lv denied 77 N.Y.2d 904). In any event, any error in this regard would be harmless because of the overwhelming evidence of guilt.
When, on cross-examination, the defense accused a witness of proprosecution bias and implied that the witness was tailoring his testimony to match that of the police, the People were properly permitted to rebut this claim of recent fabrication by showing that the witness made a prior consistent statement at a time when he would have had no way of knowing what the police account of the incident would ultimately be ( see, People v McDaniel, 81 N.Y.2d 10, 18).
When, during a readback of testimony, some jurors evinced a reluctance to continue, the court properly offered the jury the option to cut the readback short. The jury's note requesting the entirety of certain testimony was not irrevocable, and the court was circumspect in reminding the jury of its absolute right to complete the readback, and in ascertaining that the abridged readback was satisfactory ( People v. Hawkins, 173 A.D.2d 358, lv denied 78 N.Y.2d 1076).
We have reviewed each defendant's remaining contentions concerning the weapon possession convictions and find them without merit.
Concur — Murphy, P.J., Rubin, Kupferman, Ross and Mazzarelli, JJ.