On December 7, 1984, at approximately 5:00 P.M., a 20-year-old taxi driver met his friend who spent the evening with him riding in the front seat of his cab. At about 8:30 P.M. he proceeded to Union Place pursuant to a radio dispatch and picked up two young men, the accused and the co-accused. A New York Criminal Lawyer said that although the taxi driver did not know the pair, his companion recognized them from the neighborhood. The taxi driver was directed by the men to take them to Yonkers. During the trip, which took approximately four minutes, no one spoke.
When they arrived at the destination, the accused told the taxi driver that he was going inside the building to find some friends and asked to wait for him. The co-accused remained in the back seat of the taxi while the accused went inside. Shortly thereafter, the accused returned, accompanied by another male, and asked the taxi driver to drive them back to Union Place.
As the taxi was travelling down the hill that approached Union Place, the accused placed a gun to the taxi driver’s neck and told him to give his money. He saw the gun and felt it pressed to his neck. In response to the demand, he gave the robbers approximately $20 he had in his shirt pocket and an additional sum of approximately $100 from his wallet. The three men then exited the taxi and ran off into the darkness. During the robbery, the co-accused pushed the driver’s companion forward in the front seat to keep her head down.
After the robbery, the taxi driver and his friend returned to the Cab Service station, which was only about three minutes away from the scene of the robbery, and called the police. Two police officers arrived within five minutes, and a detective interviewed both of the victims at length. The taxi driver informed the detective that he had been robbed by three males between 18 and 19 years old and that one of the men had an unusual looking right eye. The taxi driver’s friend said she recognized the man with the unusual looking right eye since she had seen him on a daily basis in the neighborhood. She also recognized the accused as another of the robbers, knowing him to be the brother of a girl she knew in the neighborhood. She did not know the third male.
The detective then drove along with the taxi driver and his friend to the area in which the robbery took place, after which they proceeded to the accused man’s apartment house since the taxi driver’s friend knew where he lived. The detective went into the building and returned with one of the accused man’s brothers, but the victims said he was not the one who had robbed them. A Manhattan Criminal Lawyer said the three thereupon continued their search and headed in the direction of the apartment building where the co-accused lived.
When they reached the building at about 10:00 P.M., the building was on fire and there was a crowd of people milling around. The taxi driver’s friend saw one of her cousins, who told her that the accused and the co-accused had been there just a few minutes earlier. The detective and the two victims continued their search and several minutes later they spotted the pair standing on a street corner. The detective stopped the car, got out, and arrested the accused and the co-accused.
The robbers were tried jointly. Prior to the trial, a hearing was held. The accused brought to the court’s attention his prior verdict in 1983 as a youthful offender in an attempted robbery, and his resentence for violation of probation in 1984. The court disallowed prosecutorial inquiry into the facts underlying the offense.
The hearing also revealed that the co-accused had been arbitrated a juvenile delinquent in 1979 and that he had been convicted of attempted robbery after a plea of guilty in 1984. The court ruled that the Jury would not be permitted to inquire into the underlying facts of the co-accused man’s prior conviction. In the event that the co-accused was to take the stand, the prosecution would be limited to asking whether he had been convicted of attempted robbery in the second degree.
The accused testified at the trial that he had been home at the time of the robbery, playing backgammon with the co-accused until approximately 8:30 P.M., when his brother and the co-accused left the apartment. The accused remained at home until his brother, the co-accused, and a third person returned. The accused and the co-accused then went out to buy some beer, and were then arrested. He denied being involved in the robbery and claimed that he learned about it for the first time when he was in the city jail. He testified that the co-accused had told him that the three of them committed the robbery and that the girl knew them. He did not tell him who had the gun.
The co-accused was called by his attorney to testify as a rebuttal witness. He testified that he and the accused had had two conversations on the night in question, one at the police station and the other in jail. He recalled speaking to the accused about how they had been at his house and that they had gone to see the fire. He denied ever telling the accused that he had participated in the robbery. The co-accused was also asked about his prior conviction for attempted robbery in the second degree.
On cross-examination, counsel for the accused informed the court that he intended to go into the facts of the co-accused man’s felony conviction and his juvenile delinquency judgment. The trial judge, however, told him that he may intend to go into that, but he is not going to go into it because the judge is limiting him the same as he have limited the District Attorney.
The jury returned a verdict of guilty on each count of the indictment with respect to the accused and the co-accused.
Based on the appeal, the accused takes the position that the trial court committed reversible error by depriving him of his constitutional right of confrontation when it applied its ruling to him and restricted his cross-examination of the co-accused. He contends that it was essential to his defense to impeach the co-accused man’s credibility in order to establish that the robbery was committed by the co-accused, the accused man’s brother and the third man, and that he was not involved in the criminal act.
Records revealed that no motion for severance was made by the accused and therefore he has not preserved the issue for appellate review. In any event, although the trial court erred when it ruled that the accused man’s cross-examination was restricted by the prior ruling which precluded any inquiry into the underlying facts of the co-accused man’s prior conviction for robbery, under the circumstances of the case the court’s ruling did not constitute reversible error.
The accused man’s right to confront and cross-examine his accuser takes precedence over the interest of a co-accused in a ruling. However, the trial court may exercise its discretion to restrict the scope of the cross-examination as to the prior conviction of any witness when that witness is also an accused. The court’s discretion to limit the cross-examination of a witness as to the underlying facts of prior convictions is to be used to ensure those standards of fairness which are required, and to which every accused and society as a whole is entitled.
It was not an abuse of discretion to limit the examination of the co-accused by the defense counsel to the fact of the conviction and to exclude the underlying acts. An exploration of the underlying acts of the prior robbery would create a danger that the jury would apply the evidence in the prior case against the co-accused. The criminal act was similar to the one for which the accused and the co-accused were being tried and thus bore its own prejudice. More importantly, the very theory of the accused man’s case rested on the fact that it was the co-accused and two others who committed the robbery. This is what he set out to prove in his defense and therefore to a great degree he was acting as a prosecutor against the co-accused in order to vindicate his defense.
Accordingly, in the absence of a timely motion for severance, the Trial Judge did not abuse his discretion in limiting the cross-examination of the co-accused. The difficulty which the accused had in toeing the line between impeaching credibility and proving the predisposition of the co-accused to commit the crime in question is demonstrated by the questions which he in fact asked the co-accused in his cross-examination. They tended towards the latter goal and thus were improper, especially in a joint trial.
The accused further contends that the trial court committed reversible error when it precluded his investigator from testifying as to conversations he had with the third man in which the said third man allegedly made statements against his penal interest. It is claimed that the third man stated that he was one of the three who were in the cab at the time of the robbery but that he did not know that his two companions were planning to commit the robbery. The third man was also alleged to have stated in that conversation that the third person was the accused man’s brother and not the accused.
The rule permitting declarations against penal interest to be admitted as an exception to the hearsay rule was introduced in 1970 by the Court of Appeals. The rule states that declarations against penal interest constitute an exception to the rule against admission of hearsay evidence because such statements bear a particular degree of reliability based upon the assumption that a person would not falsely utter a remark that could subject him to penal sanctions. Thus, to qualify for admission into evidence as a declaration against the maker’s penal interest, the declarant must be unavailable as a witness at trial and when the statement was made, the declarant must be aware that it was adverse to his penal interest.
Furthermore, the declarant must have competent knowledge of the facts underlying the statement and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.
There is no question that the third man, by invoking his right to remain silent, had become unavailable for the purposes of the rule. Quite clearly, if he declared that he was in the taxicab during the robbery, but that he did not know of the plans beforehand, he must have been aware that this would place him in a position adverse to his penal interest. Two of the perpetrators had already been arrested for the robbery but because of a lack of identification the third had not been apprehended. His statement that he was in fact the third person at a time when the other two were incarcerated must have been made knowing the consequences of his admission.
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