Opinion
1546/2003.
Decided October 8, 2004.
HONORABLE ROBERT T. JOHNSON District Attorney, for the People of the State of New York, By: CHRISTOPHER W. McCLURE, ESQ., Assistant District Attorney., KENNETH MURPHY, ESQ., For Daniel Johnson.
Defendant, David Williams, is charged with two counts of Robbery in the First Degree (Penal Law §§ 160.15, [4]) and related offenses. At a combined Huntley/Wade ( see People v. Huntley, 15 NY2d 72; United State v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) hearing, the People called two witnesses: New York City Police Detectives Michael Weiner and Angel Torres. Defendant called no witnesses. The Court finds the testimony of Detectives Francis and Torres to be credible. Defendant's motion to suppress is denied in its entirety.
Additionally, the People move to admit the Grand Jury testimony of Cecilia Sebben as her past recollection recorded. The People argue that because Ms. Sebben is unable to remember some of the events that occurred during this alleged robbery, is unable to refresh her recollection regarding these events by reviewing her Grand Jury testimony, and because the accuracy and reliability of her Grand Jury testimony has been established, it should be admitted. The motion is granted.
Moreover, the defense moves to dismiss the first degree robbery count under either subdivision three, which requires that one of the participants "use or threatens the immediate use of a dangerous instrument" (P.L. § 160.15), or subdivision four, which requires that one of the participants "display what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (P.L. § 160.15), because to find Defendant guilty of one of these counts but not guilty of the other would cause the verdict to be repugnant. The motion is denied.
Lastly, the defense moves to dismiss the first degree robbery count under subdivision three because the People failed to establish that a firearm used or threatened to be used was loaded and operable, and, therefore, it could not be a dangerous instrument. The motion is granted.
Factual Setting
1. The Pre-Trial Hearing The People's Case
Detective Weiner was assigned to investigate the March 9, 2003, robbery at Maggie's Restaurant, located at 2643 Jerome Avenue in Bronx County. On March 11th, at approximately 2:00 p.m., he received a telephone call from the New York County Parole office indicating Defendant was present. He arrested Defendant at that location at approximately 3:00 p.m.
Immediately thereafter, Detective Weiner read Defendant his Miranda ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings. Defendant indicated that he understood them. Detective Weiner then asked Defendant if he knew why he was under arrest, and after Defendant stated that he did not, the detective informed him that it was for the robbery at Maggie's Restaurant. Defendant reacted by stating, in sum and substance, "I was there. I did participate, but I did not have a gun." Moments later, Detective Weiner found a pawn-shop ticket in Defendant's pocket. Defendant informed him that it was for a chain he removed from one of the patrons. He further indicated that he had his cousin sell the chain to a pawn shop, and agreed to take the detective to this shop. Approximately one hour later, Defendant and Detective Weiner arrived at the pawn shop. Detective Weiner retrieved the chain using the recovered ticket. Defendant then identified the chain as the one he removed during the robbery.
On March 12th, Detective Weiner arranged a lineup. He had Detective Torres telephone two of the alleged victims, Margarita Burgos and Cecilia Sebben, as both witnesses only spoke Spanish and Detective Weiner did not. Detective Weiner, through Detective Torres, separately told Ms. Burgos and Ms. Sebben that they would be taken to the stationhouse to view a lineup. After picking up both women, Detective Weiner, through Detective Torres, told them that they were going to view the lineup through a one-way glass and, if they recognized anyone, to indicate who and from where.
At the stationhouse, Ms. Burgos and Ms. Sebben were placed in a waiting room from which they could not see the fillers or Defendant. Defendant and four fillers were brought into the line-up room and Defendant was allowed to choose his seat. He selected seat number three. Detective Weiner placed the two most similar looking fillers on each side of Defendant. Bags were then placed over all clothing so that only faces could be seen. Ms. Burgos viewed the lineup first and identified Defendant as the robber with the gun; she was never told in which position Defendant was seated. Ms. Sebben then viewed the lineup and she too identified Defendant; she also was never told in which position Defendant was seated.
During his arraignment, Defendant was notified that the People intend to offer evidence of his "written statement(s)" to Detective Weiner at the time of his arrest, the sum and substance of which was "I got in the car with my friends 'Low' and 'C.' We went into a bar on Jerome and took some stuff from the patrons. 'C' had the gun. I took a chain from someone at the bar." Defendant subsequently moved to "suppress a statement." More specifically, Defendant claimed that he was served with notice of an "oral statement" and moved to suppress "statements" obtained in violation of his rights. A Huntley ( supra) hearing was granted to determine the admissibility of Defendant's "statements" (Clancy, J.).
Arguments of Counsel
The defense first alleges that Defendant's statement should be precluded because the type and substance of the statement for which notice was given is entirely different from the one testified to at the hearing. The defense also contends that Defendant showing the police the location of the pawn shop is the equivalent of a statement about an entirely separate topic for which no notice was given, and, therefore, it too should be precluded.
The defense additionally claims that the statement should be suppressed because the People have not met their burden of proving voluntariness beyond a reasonable doubt. More specifically, the defense claims that it was the product of custodial interrogation in that Defendant was in custody as he was handcuffed for approximately one hour before Detective Weiner arrested him and the People have failed to demonstrate that nothing impermissible occurred at that time. In addition, the defense contends that Defendant was interrogated because Detective Weiner's informing him why he was arrested was designed to provoke a response.
As to the lineup, the defense contends that it is unknown what was actually said to the witnesses because Detective Weiner does not speak Spanish and the People failed to establish that Detective Torres translated accurately. The defense further alleges that because the substance of the actual conversation with the witnesses is not known, the fellow officer rule does not apply. The defense also claims that it is not possible for the Court to determine if the lineup was fair because the photograph of the lineup is unclear, and, in any event: Defendant does not look like and is younger than the fillers; his pose is awkward; his feet are sticking out; he is wearing different shoes and clothing than the fillers; and he appears to be sitting forward from the fillers.
The People contend that they are not required to give verbatim notice of every single word a defendant states. Rather, they claim that they only have to provide the defense with the sum and substance of the statement, which occurred here. In addition, the People further claim that Defendant's act of voluntarily going to the pawn shop with Detective Weiner is not a statement, and although the People note that Defendant did state that the chain recovered from the pawn shop was the same as the one he removed from a patron during the robbery, the People argue that this was part and parcel of the same continuous statement from the beginning of the arrest. In any event, the People argue that the defense was clearly notified that there was a statement made in this case because motions were filed and a Huntley ( supra) hearing was held.
In addition, the People urge that Defendant's statement was voluntary because he was read his Miranda ( supra) rights immediately after he was arrested and knowingly waived those rights prior to making a statement. Notwithstanding, the People contend that the first portion of Defendant's statement was spontaneous, and, thus, Miranda ( supra) warnings were not required, as it was made after he was informed that he was being arrested for a robbery, which, the People claim, is not a statement that would normally warrant, nor was it designed to elicit an incriminating response.
As for the lineup, the People claim that the photograph establishes that the lineup was not impermissibly suggestive as it did not create a substantial likelihood of a misidentification. The People further argue that: Defendant was not entitled to a lineup of people who look exactly like him; the age of the fillers is irrelevant because Defendant looks older than nineteen; Defendant and the fillers had the same skin tone, hair and body types; Defendant and the fillers were covered from the neck down; Detective Weiner placed the two most similar looking fillers next to Defendant; the witnesses were separated in between their viewings; the witnesses were unable to see Defendant or the fillers prior to viewing the lineup; and Defendant's position was not revealed to the witnesses.
2. Grand Jury Testimony as Past Recollection Recorded
In the course of her testimony, Ms. Sebben stated that although she recalled that both robbers had black pistols, she was unable to remember what the firearms looked like. Ms. Sebben further testified that although she had an opportunity to see both robbers in the course of the robbery, she was not sure that she could identify either of them now due to the passage of time. Ms. Sebben did acknowledge that she viewed a lineup on March 12th, and in that lineup, she recognized the person in position number three from the robbery. However, although she was positive that person was one of the robbers, she did not remember if he was the robber by the door or the one who jumped over the counter. Ms. Sebben also testified that she recalled testifying in the Grand Jury on March 13th, and, at that time, the robbery was still fresh in her mind, that she put her hand on the Bible and swore to tell the truth, and that she did, in fact, testify truthfully and accurately. Ms. Sebben then explained that although she now does not recall the description of the gun possessed by the robber by the door, she does recall testifying about that in the Grand Jury. However, reviewing her testimony, which she had done prior to testifying at trial, would not refresh her recollection. On cross examination, she did not remember indicating in the Grand Jury that only one of the robbers had a weapon, although it was stipulated that such testimony was given. Due to this testimony, the People move to admit, as Ms. Sebben's past recollection recorded, the following:
ASST. DIST. ATTY: And during the lineup or prior to did anyone indicate to you what number to pick?
MS. SEBBEN: No.
ASST. DIST. ATTY: And did you recognize Number Three?
MS. SEBBEN: As the person that held me up.
ASST. DIST. ATTY.: Okay, in the restaurant?
MS. SEBBEN: In the restaurant.
ASST. DIST. ATTY.: And was that person the one with the gun or without the gun?
MS. SEBBEN: The one with the weapon
ASST. DIST. ATTY.: Now I'm going to move to March 9, 2003, in the restaurant. You described the man who had the gun, can you describe the gun?
MS. SEBBEN: It was a machine gun, black.
ASST. DIST. ATTY.: Was it large, small?
MS. SEBBEN: Big.
(Tr. at 200-01; People's Exhibit Number Five).
The People contend that the proper foundation has been laid for the Grand Jury testimony's admission because Ms. Sebben testified that, at the time she gave it, the incident was fresh in her mind, and she testified under oath, truthfully and accurately. Moreover, the People note that Ms. Sebben explained that she now has no recollection as to these portions of the incident despite repeatedly reviewing her Grand Jury testimony. The defense argues that the People have failed to establish the reliability of the past recollection recorded due not only to inconsistencies with her trial testimony, but also because "[i]t's beyond human understanding that anyone could forget having a machine gun pointed at them" (Tr. at 38).
3. Repugnant Verdict
The defense claims that the two first degree robbery counts are possibly repugnant with each other because Defendant could only use or threaten to use a dangerous instrument, that is, a firearm, but not display what appears to be a firearm if it was somehow used as a dangerous instrument in a manner other than firing it, which has not been alleged here. Similarly, the defense contends that it is impossible for Defendant to display what appears to be a firearm, but to not use or threaten to use a dangerous instrument when that instrument is a firearm.
The People argue that to find Defendant guilty of one of the two first degree robbery counts and not guilty of the other would not be repugnant because subdivision three requires the use or threatened use of a dangerous instrument, which is not limited to a firearm, whereas subdivision four requires that the object displayed appear to be a firearm. Therefore, the People claim that Defendant can by guilty of one of the two first-degree robbery counts and not guilty of the other because "dangerous instrument" and "use or threaten to use" (P.L. § 160.15), are different elements than "appears to be a firearm" and "display" (P.L. § 160.15).
4. Firearm as a Dangerous Instrument
The defense argues that the People must prove that a gun was loaded and operable in order to establish that it was a dangerous instrument, and their failure to do so in this case requires that the first degree robbery count under subdivision three be dismissed. Although the defense concedes that a unloaded gun could be a dangerous instrument if not used as a firearm, they argue that no such theory was proffered. The People concede this point.
Discussion
1. The Pre-Trial Hearing
1 (a). Preclusion
Criminal Procedure Law § 710.30 states:
1. Whenever the people intend to offer at trial (a) evidence of a statement made by a defendant to a public servant, . . . they must serve upon the defendant notice of such intention, specifying the evidence intended to be offered. 2. Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial . . . to suppress the specified evidence. . . . 3. In the absence of service of notice upon a defendant as prescribed in this section, no evidence of a kind specified in subdivision one may be received against him upon trial unless he has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied and the evidence thereby rendered admissible.
"[T]he purpose of CPL § 710.30 is to inform a defendant that the People intend to offer evidence of a statement to a public officer at trial so that a timely motion to suppress the evidence may be made." People v. Rodney, 85 NY2d 289, 291-92 (1995). See also People v. Lopez, 84 NY2d 425 (1994). Therefore, "[t]he notice requirement is excused when a defendant moves for suppression." People v. Kirkland, 89 NY2d 903, 904-05 (1996). See also People v. Merrill, 87 NY2d 948 (1996); People v. Bernier, 73 NY2d 1006 (1989).
Based on the holding in Kirkland, ( supra), the First Department has repeatedly held that, in cases similar to this, a preclusion motion for lack of CPL § 710.30 notice is waived. In People v. Garcia, 290 AD2d 299, 300 (1st Dept. 2002), lv. denied, 98 NY2d 730 (2002), although CPL § 710.30 notice was only provided as to five out of six statements, it was held that Defendant's motion to preclude the statement for which no notice was given was waived because he "was granted a suppression hearing at which defendant received a full opportunity to be heard on the voluntariness of all of his written and oral statements." Similarly, in People v. Goss, 281 AD2d 298 (1st Dept. 2001), lv. denied, 96 NY2d 863 (2001), lv. denied, 96 NY2d 866 (2001), because the defendant moved to suppress all of his statements, including an oral statement for which he received no notice, the court held that the lack of notice was excusable because he "received a full hearing on all of his statements, and received the same opportunity to litigate the voluntariness of his oral statements that would have been afforded to him had the People provided timely notice."
Similarly here, in his omnibus motion, Defendant moved to suppress all of his "statements," and despite the People's CPL § 710.30 notice indicating that Defendant's statement was written, Defendant nevertheless noted in his motion that his statement was, in fact, oral. As such, Defendant was granted a Huntley hearing in which the admissibility and voluntariness of all his statements was to be litigated. Therefore, any deficiency in the People's CPL § 710.30 notice has been waived.
In any event, it is well settled that CPL § 710.30 notice of an oral statement is sufficient if it clearly sets forth the sum and substance of its content. See People v. Reed, 84 NY2d 945 (1994); Lopez, supra, at 428 ("Full copies of the statements need not be supplied but they must be described sufficiently so that the defendant can intelligently identify them."); People v. Evans, 258 AD2d 273 (1st Dept. 1999), lv. denied, 93 NY2d 924 (1999). Indeed, in both People v. Cooper, 78 NY2d 476 (1991), and People v. Bennett, 56 NY2d 837 (1982), where the People failed to give notice of an oral statement, but instead, gave notice of only a written statement, the Court of Appeals held that preclusion was not warranted because the two statements were part and parcel of a single interview of defendant and were substantially the same. See also People v. Poole, AD3d, 2004 WL 2187114 (1st Dept. September 30, 2004) ("notice requirement . . . satisfied because defendant's statement to a detective was similar to his other statements to police officers, which were mentioned in the People's voluntary disclosure form"); Garcia, supra (sufficient notice of oral statement for which no CPL § 710.30 notice given because it was made in the same interview and was consistent with noticed written statements); People v. Morris, 248 AD2d 169 (1st Dept. 1998), aff'd, 93 NY2d 908 (1999); People v. Martinez, 203 AD2d 212 (1st Dept. 1994).
Here, although the substance of the statement in the notice differed somewhat from the substance of that statement testified to at the hearing, the notice referred to the same statement and the mere fact that Defendant did not receive a verbatim recitation of the entire statement in the notice does not warrant its preclusion. Furthermore, as Defendant had notice of a statement made at that same date, time and location and to the same police officer, he had notice of the entire statement. Moreover, the notice was sufficient as it included the same inculpatory information and was sufficiently described so as to enable Defendant to intelligently identify it and to timely move to suppress it, which he did. In addition, although the notice indicated that the statement was written, such a mistake is irrelevant because the substance of the statement was the same and, indeed, in his motion, Defendant indicated that the statement was oral, thus indicating that he was clearly able to identify the statement to which the People were referring. It is also noted that even though the last portion of the statement testified to at the hearing occurred an hour later and at another location, it was cumulative to the earlier portion of the statement. Therefore, as there is no appreciable difference in the two summaries of the same statement, preclusion is not mandated.
Furthermore, it has been recognized that where the People offer proof of Defendant's actions, CPL § 710.30 (1) (a) notice requirements are not implicated. See People v. Kinred, 276 AD2d 927 (3rd Dept. 2000), lv. denied, 96 NY2d 802 (2001); People v. Peeso 266 AD2d 716 (3rd Dept. 1999), lv. denied, 94 NY2d 883 (2000). Thus, an appellate court of this State has recognized that CPL § 710.30 notice is not required for a defendant opening a safe, since it was deemed not to be a "statement intended to communicate any information." See People v. Morales, 248 AD2d 731, 732 (2nd Dept. 1998), lv. denied, 92 NY2d 902 (1998). Here, Defendant providing the directions to the pawn shop did not implicate CPL § 710.30 since this was an action by Defendant and, similar to Morales, ( supra), was not a statement intended to communicate any substantive information.
1 (b). Huntley
As to the Huntley ( supra) portion of the hearing, the People have the burden of establishing that the defendant voluntarily waived his privilege against self-incrimination. As explained in People v. Williams, 62 NY2d 285, 288-89 (1984):
To be valid, an accused's waiver of his or her rights must be knowingly and intelligently made . . . [and] [a] court must always ascertain whether the defendant understood how the Miranda rights affected the custodial interrogation.
As explained by the Court of Appeals in People v. Sirno, 76 NY2d 967 (1990), where a defendant indicates he understands his Miranda rights and "promptly after having been administered those rights willingly proceeds to make a statement or answer questions during interrogation, no other indication prior to the commencement of interrogation is necessary to support a conclusion that the defendant . . . waived those rights." Sirno, supra at 968. See generally North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 288 (1979); People v. Davis, 55 NY2d 731 (1981).
Relying on Sirno ( supra), the First Department has repeatedly held in situations similar to the case at bar that a statement is admissible where a defendant waives his Miranda warnings. See People v. Curry, 287 AD2d 252 (1st Dept. 2001), lv. denied, 97 NY2d 680 (2001), lv. denied, 98 NY2d 636 (2002); People v. Diaz, 238 AD2d 214 (1st Dept. 1997), lv. denied, 90 NY2d 857 (1997); People v. Hayes, 213 AD2d 193, 194 (1st Dept. 1995), lv. denied, 86 NY2d 781 (1995). Similarly here, before Defendant gave his oral statement, he was read his Miranda rights from a prepared card and indicated that he understood them. Defendant then gave his statement in which he attempted to minimize his culpability by claiming that he did not have a firearm. In addition, although there is no testimony as to what occurred during the hour while Defendant was at the probation office prior to Detective Weiner's arrival, it is irrelevant because no questioning occurred and Defendant's "subsequent statements to another detective, made after Miranda warnings, were voluntary and sufficiently attenuated" from whatever occurred beforehand. People v. Mack, 4 AD3d 126 (1st Dept. 2004), lv. denied 2 NY3d 802 (2004). See generally People v. Chapple, 38 NY2d 112 (1975); cf., People v. Kollar, 305 AD2d 295 (1st Dept. 2003), app. dismissed, 1 NY3d 591 (2004). Therefore, as there is no evidence that anything tainted Defendant's statements made after Miranda was administered, the lack of evidence as to what occurred before Detective Weiner's arrival does not provide a basis for the statement's suppression. See People v. Daniels, 6 AD3d 245 (1st Dept. 2004) (post- Miranda statements made hours after pre- Miranda statements were sufficiently attenuated); People v. Hines, 289 AD2d 40 (1st Dept. 2001) (no basis to suppress post- Miranda statements as part of a continuous interrogation from his statements made prior to Miranda warnings being administered), lv. denied, 97 NY2d 755 (2002).
In any event, even if Miranda warnings had not been administered, the beginning of Defendant's statement was clearly spontaneous. As explained in People v. Rivers, 56 NY2d 476, 479-80 (1982):
[T]he police [are not required] to take affirmative steps . . . to prevent a talkative person in custody from making an incriminating statement. Volunteered statements are admissible provided the defendant spoke with genuine spontaneity" and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed" ( People v. Maerling, 46 NY2d 289, 302-03 [1978]). . . . The question in such cases is whether the police conduct should reasonably have been anticipated to evoke a statement from the defendant . . . and whether it can be said under the circumstances that the inculpatory statement was "made without apparent external cause" ( People v. Stoesser, 53 NY2d 648, 650 [1981]).
See also People v. Lanahan, 55 NY2d 711 (1981); People v. Lynes, 49 NY2d 286 (1980).
In Rivers, ( supra), the defendant, without any prompting, asked a police officer why he had been arrested and after being informed of the charge, the defendant proceeded to make an incriminating statement. In finding the statement spontaneous and not the produce of any "subtle maneuvering," the Court of Appeals held that:
The officer immediately responded to the defendant's question; there was no hesitation or delay evidencing a desire to exploit the elements of time and place. . . . The answer the officer gave was brief and impersonal; it did not go beyond the question asked. It did not provide a complete evidentiary recital of the circumstances known to the police so as to leave the defendant with the impression that "anything but an open admission would be futile" ( Lanahan, supra, at 714).
Rivers, supra, at 480. See also Daniels, supra ("[S]tatements were spontaneous and not the product of interrogation or its functional equivalent. The detective's innocuous declarative statements, made during a brief conversation with defendant . . . were not reasonably likely to elicit an incriminating response."); People v. Dawkins, 201 AD2d 336, 337 (1st Dept. 1994) ("Defendant's statement . . . was a spontaneous utterance and not the result of any police questioning, express or implied, intended to elicit an incriminating response."), lv. denied, 83 NY2d 851 (1994).
Although not specifically dealt with by the First Department or Court of Appeals, other appellate courts of the State have recognized that informing a defendant of the charges against him is not tantamount to an interrogation. In People v. Sturdivant, 277 AD2d 607 (3rd Dept. 2000), lv. denied, 95 NY2d 970 (2000), after the arresting officer advised the defendant of the charges against him, the defendant stated (at 608), "I wasn't even there. And I didn't rape nobody." As a result, the Third Department held that the defendant "was neither induced nor provoked to make a statement. . . . While [the officer] was constrained from eliciting a response, he was not required to silence this chatterbox." Likewise, in People v. Arch, 265 AD2d 868, 868-69 (4th Dept. 1999), lv. denied, 94 NY2d 860 (1998), the Fourth Department found a defendant's statement spontaneous where, after the arresting officer informed Defendant of the top charge against him, the defendant stated, "robbery first degree required that he have a gun or other weapon and that he had not carried a weapon."
Similarly here, Detective Weiner merely informed Defendant as to the reason for which he was being arrested; statements that were clearly not designed to elicit any type of response, much less an incriminating one. Nevertheless, without any prompting, Defendant responded by admitting his involvement but claiming that he was not armed. Therefore, even had Miranda warnings not been administered, although the inquiry about the origins of the recovered pawn shop ticket, standing alone, may have been impermissible, this initial portion of the statement would still be admissible.
1 (c). Wade
In the Wade ( supra) portion of the hearing, as recently opined by the Court of Appeals in People v. Jackson, 98 NY2d 555, 558-59 (2002):
Identification testimony based on pretrial lineups is properly admitted unless it is shown that the procedure was unduly suggestive ( see People v. Chipp, 75 NY2d 327, 335 [1990], cert. denied, sub nom., Chipp v. New York, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]). Although the People have the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive.
In the present case, the People have met their initial burden of establishing the reasonableness of the police conduct. The Court, having viewed the lineup photograph, which, despite the defense's contention to the contrary, is quite clear, finds it to be fair in that Defendant was not highlighted in any manner. See Chipp, supra, at 336 ("There is no requirement . . . that a defendant in a lineup be surrounded by people nearly identical in appearance."). Rather, a review of the lineup "reveals that the individuals depicted were of similar appearance." People v. Gilbert, 295 AD2d 275, 276 (1st Dept. 2002), lv. denied, 99 NY2d 558 (2002). See also People v. Alexander, 270 AD2d 136 (1st Dept. 2000) (rejecting claim that identification procedure was unduly suggestive because the other five men appeared to be darker-skinned than defendant), lv. denied, 94 NY2d 945 (2000). The Court also credits the testimony of Detective Weiner, in which he explained that he selected the fillers who looked most similar to Defendant and that, of those individuals, placed the two most similar looking on each side of Defendant. Furthermore, the testimony establishes that the complainants never saw Defendant or the fillers prior to the lineup, as they were all kept in separate rooms. In addition, no one suggested whom to select, Defendant selected his own position in the lineup, and all of the individuals in the lineup were covered up to their necks so that any difference in their clothing or body-type would not be observable.
In addition, the accuracy of an officer's translation is a factual question that is to be resolved by the finder-of-fact, see People v. Fabricio, 307 AD2d 882 (1st Dept. 2003), lv. granted, 1 NY3d 603 (2004), which, in the case of a hearing, is the Court. As such, the fellow officer rule is not even at issue. Indeed, in People v. Montero, 273 AD2d 128 (1st Dept. 2000), lv. denied, 95 NY2d 868 (2000), the First Department noted that the finder-of-fact was permitted to credit a detective's testimony that he translated a statement verbatim. In the case at bar, the Court credits Detective Torres' testimony that he translated between Detective Weiner and the alleged victims verbatim, and, in so doing, finds that nothing impermissible was communicated.
2. Grand Jury Testimony as Past Recollection Recorded
The doctrine of past recollection recorded has a long history in New York State. During the antebellum period, Justice Seldon authored two Court of Appeals decisions that still stand today. First, in Halsey v. Sinsebaugh, 15 N.Y.485, 488-89 (1857), relying on Merrill and Alderman v. The Ithaca and Oswego Railroad Company, 16 Wend. 586, 30 Am. Dec. 130 (1837), he noted:
This subject is treated with much learning and ability in the Notes to Phillips' Evidence, by Messrs. Cowen and Hill ( note 528 at p. 290), where the authorities bearing upon it are elaborately reviewed; and I fully assent to the principle there stated," that an original memorandum, made by the witness presently after the facts noted in it transpired, and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts contained in the memorandum, although the witness may have totally forgotten such facts at the time of the trial." . . . To exclude such a record, when shown to have been honestly made, would be to reject the best and frequently the only means of arriving at truth.
Subsequently, in Russell v. The Hudson River Railroad Company 17 NY 134, 139-40 (1858), Justice Selden noted:
[A] witness who says that after refreshing his memory by a written memorandum, made by himself at or about the time of the occurrence, he cannot recollect the facts, but that he is confident that he knew the memorandum to be correct when it was made, is not required to swear to the facts in positive terms, but the memorandum itself is received in connection with and as auxiliary to . . . and not as a substitute for . . . the oral testimony. . . . It is, however, an indispensable preliminary to the introduction of such a memorandum in evidence . . . that the witness is unable to speak from memory as to the facts. . . . It is the duty of the court, in all such cases, to see, before receiving the memorandum in evidence, that it was made at or about the time of the transaction to which it related, that its accuracy is duly certified by the oath of the witness, and that there is a necessity for its introduction on account of the inability of the witness to recollect the facts.
See also Cole v. Jessup, 10 NY 96 (1854); Guy v. Mead, 22 NY 462 (1860); Marcly v. Shults, 29 NY 346 (1864); Howard v. McDonough, 77 NY 592, 593-94 (1879) ("When a witness has so far forgotten the facts that he can not recall them, even after looking at a memorandum of them, and he testifies that he once knew them and made a memorandum of them at the time or soon after they transpired, which he intended to make correctly, and which he believes to be correct, such memorandum . . . may be received as evidence of the facts therein contained, although the witness has no present recollection of them."); Peck v. Valentine, 94 NY 569 (1884); National Ulster County Bank v. Madden, 114 NY 280 (1889); People v. Weinberger, 239 NY 307 (1925); cf., Clark v. National Shoe and Leather Bank, 164 NY 498 (1900); City of New York v. Second Avenue R. Co., 102 NY 572 (1886).
Later, in People v. Caprio, 25 AD2d 145, 150 (2nd Dept. 1966), aff'd, 18 NY2d 617 (1966), the Court of Appeals affirmed the Second Department's holding that "[w]hen a witness is unable to testify concerning facts recited by or through him in a memorandum, the memorandum is admissible as evidence of the facts contained therein if he observed the matter recorded, it was made contemporaneously with the occurrence of the facts recited and the witness is able to swear that he believed the memorandum correct at the time made."
Most recently, the Court of Appeals explained the doctrine in People v. Taylor, 80 NY 1, 8-9 (1992):
The requirement for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information. . . . When such a memorandum is admitted, it is not independent evidence of the facts contained therein, but is supplementary to the testimony of the witness. . . . Admission of the memorandum is a matter for the exercise of the court's discretion in determining whether the proponent has made a sufficient showing of the accuracy of the recording and its reliability.
See also People v. Lewis, 232 AD2d 239 (1st Dept. 1996), lv. denied, 89 NY2d 865 (1996); People v. Somarriba, 192 AD2d 484 (1st Dept. 1993); Prince, Richardson's on Evidence, §§ 6-216, 6-218, 6-220 (Ferrell's 11th ed. 1995); 3 Wigmore, Evidence §§ 734-47 (Chadbourn rev. 1970); Thomas Starkie on Evidence, § 176 (1824).
Recently, in People v. Holmes, 291 AD2d 247, 248 (1st Dept. 2002), lv. denied, 98 NY2d 676 (2002), the First Department held that a "court properly exercised its discretion in admitting a witness's grand jury testimony as past recollection recorded since the People laid a sufficient foundation for such evidence." Similarly here, the portions of Ms. Sebben's Grand Jury testimony regarding the fact that she identified the robber with the gun in the lineup and that the gun he possessed was a large black machine gun, are admissible as her past recollection recorded because the requirements for its admission, as most recently delineated in Taylor, ( supra), have been satisfied. Ms. Sebben explained that: as she was an eyewitness, she observed the robbery; she gave her Grand Jury testimony four days after the robbery and, at that time, the incident as well as the subsequent lineup were still fresh in her mind; she remembers testifying truthfully and accurately in the Grand Jury; and she currently does not remember these selected portions of the incident.
Although Defendant claims that Ms. Sebben's Grand Jury testimony is not sufficiently reliable due to its alleged incredulity and inconsistency with her trial testimony, such factors do not affect its admissibility, but rather, are topics for cross-examination. As explained in 3 Wigmore, Evidence § 734 (Chadbourn rev 1970), past recollection recorded is allowed when a witness "is either devoid of a present recollection or possesses of an imperfect present recollection. . . . It must appear that the witness had a good recollection when it was recorded, but that is all that is required by the canons of recollection." See also 3 Wigmore, Evidence § 738 (Chadbourn rev 1970).
3. Repugnant Verdict
In People v. Tucker, 55 NY2d 1, 4-7 (1981), the Court of Appeals held that:
When there is a claim that repugnant . . . verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged. . . . [A] conviction will be reversed only in those instances where acquittal on one crime as charged . . . is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.
See also People v. Rayam, 94 NY2d 557 (2000); People v. Green, 71 NY2d 1006 (1988); People v. Goodfriend, 64 NY2d 695 (1984); compare, People v. Maldonado, AD3d, 2004 WL 1945558 (1st Dept. September 2, 2004). In Tucker, ( supra), the defendant was convicted of first-degree robbery under subdivision four, but was acquitted of first-degree robbery under subdivision three. The Court of Appeals held that the verdict was not repugnant because since the jury could find that the gun's capability to fire was not proven, subdivision four would still be satisfied as the affirmative defense of non-operability was never proffered, but such non-operability would lead to an acquittal under subdivision three, which requires the firearm to be operable for it to be a dangerous instrument. See also People v. Iglesias, 40 AD2d 778 (1st Dept. 1972) (noting subdivision three "requires more than mere possession of the dangerous instrument," whereas subdivision four deals "with the situation where a gun is merely displayed").
As further explained in People v. Pena, 50 NY2d 400, 407 note two (1980):
Subdivision 3 of section 160.15 of the Penal Law was apparently intended to take into account the gravity of the threat faced by the robbery victim as well as the nature of the force employed by the robber. . . . Thus, only one who commits robbery while carrying a "deadly weapon" upon his person is now guilty of robbery in the first degree. . . . However, if he does not carry a weapon classified as" deadly" but instead a more broadly defined "dangerous instrument,". . . the statute now requires a showing not merely of possession but of "use" or threatened "immediate use," on the theory that it was the employment of such an instrumentality that was significant.
By way of contrast, the Fourth Department in People v. Briggs, 52 AD2d 1053 (4th Dept. 1976) noted that Penal Law § 160.15 (4) was enacted to deal with circumstances in which a firearm is displayed but the proof nevertheless fails "to establish either the operability of the weapon or that it was used or threatened to be used as a dangerous instrument."
Here, in charging the jury with first-degree robbery under subdivision four, as the affirmative defense specific to that charge was not raised, the Court would instruct the jury that the People must prove beyond a reasonable doubt, amongst other things, that defendants displayed what appeared to be a machine gun or firearm, but this does not require that the People prove that the object was a firearm. Rather, the People are required to prove that the person consciously displayed or manifested the presence of something that could reasonably be perceived as a machine gun or firearm. See 2 CJI (NY) 2d P.L. § 160.15 (4), pp. 160-1024-160-1026. By contrast, in charging the jury with first-degree robbery under subdivision three, the Court would instruct the jury that the People must prove beyond a reasonable doubt, among other things, that defendants used or threatened the immediate use of a dangerous instrument. See 2 CJI (NY) 2d P.L. § 160.15 (3), pp. 160-1021-160-1023. Therefore, to find Defendant guilty of one of these charges but not guilty of the other would not cause the verdict to be repugnant because it is possible either to threaten to use but not display an object, or to display but not threaten to use an object. It is also well settled that a dangerous instrument is not limited to a firearm and what appears to be a firearm may not necessarily be a dangerous instrument, particularly if it is unloaded or inoperable.
4. Firearm as a Dangerous Instrument
Penal Law § 160.15 (3) states that "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime uses or threatens the immediate use of a dangerous instrument." Penal Law § 10.00 (13) defines dangerous instrument as "any instrument, article or substance, . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." Therefore, to sustain a conviction for P.L. § 160.15 (3), the defendant must have "possessed a dangerous instrument at the time of the crime." Pena, supra, at 407.
The First Department held in in Iglesias, supra, at 778-79, that "[t]he proof at the trial merely established that . . . one of the defendants displayed a gun. There was no proof that the gun was loaded or that it was used. . . . Since all that was established was that a gun was displayed the court should not have submitted robbery in the first degree to the jury." More recently, in People v. Peralta, 3 AD3d 353, 355 (1st Dept. 2004), lv. denied, 2 NY3d 764 (2004), a first-degree robbery conviction under subdivision three was reduced to third degree robbery as the record was "devoid of evidence that defendant possessed or used a dangerous object . . . [because] an unloaded or inoperable handgun is incapable of causing death or serious injury [and thus] is not a dangerous instrument." See also People v. Hilton, 145 AD2d 352, 354 (1st Dept. 1989) ("[W]here the dangerous instrument alleged is a gun, the People must prove that the gun was loaded and operable. . . . [P]roof that a gun . . . was displayed is insufficient."), app. withdrawn, 73 NY2d 1016 (1989).
Similarly here, the People have offered no evidence tending to establish that either of the objects that appeared to be firearms that Defendant or his accomplice displayed and/or threatened to use were loaded or operable. As such, there is no evidence that either object was a dangerous instrument, and therefore, the first-degree robbery count under subdivision three must be dismissed. Indeed, the only exception to this hard and fast rule is if "the jury could have inferred that the defendant was threatening to use the gun . . . as a club, which would clearly qualify it as a dangerous instrument." Colavito, supra, at 555. See also McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986). However, no such theory of the case has been proffered.
ORDERED, that Defendant's motion to suppress his statement and identification is denied.
ORDERED, that the People's motion to introduce selected portions of Cecilia's Sebben's Grand Jury testimony into evidence as her past recollection recorded is granted.
ORDERED, that Defendant's motion to dismiss the first-degree robbery count under either subdivision three or four as possibly repugnant is denied.
ORDERED, that Defendant's motion to dismiss the first-degree robbery count under subdivision three due to legally insufficient evidence is granted.
The foregoing opinion constitutes the decision and order of the Court.