36 N.Y.2d 126 | NY | 1975
The principal issues presented for our review are, first, whether the admission into evidence at an identification hearing and at trial of the deceased victim’s preliminary hearing testimony violates defendant’s constitutional right of confrontation; and, second, whether the failure by the District Attorney, through inadvertence or negligence, to disclose exculpatory material in his control, constitutes a denial of due process to the defendant.
The defendant was convicted, after a jury trial, of robbery in the first degree. Subsequent to testifying against the defendant at a preliminary hearing, the 85-year-old victim of the crime, Harry Wankoff, died of causes not related to the burglary. At the identification hearing and at the trial, the court received
Upon this evidence, the defendant was convicted. Subsequent to the trial, it was discovered that Wankoff’s testimony before the Grand Jury concerning the identification of the two intruders who returned to his apartment a few days after the initial robbery did not correspond with Wankoff’s preliminary hearing testimony on this point. The People now concede that, based on Wankoff’s Grand Jury testimony, his preliminary hearing testimony identifying the defendant as one of the two intruders who returned to his apartment several days after the robbery was mistaken.
Defendant contends that his right of confrontation was violated by the trial court when, pursuant to OPL 670.10,
While the right of a defendant in a criminal case to confront adverse witnesses is guaranteed foy the Federal and State Con-situations (U. S. Const., 6th Amdt.; N. Y. Const., art. I, § 6; see Pointer v. Texas, 380 U. S. 400, 403), a well-recognized exception to this right authorizes the use at a later proceeding of a then unavailable witness’ prior testimony provided that the defendant ait the prior proceeding has been represented by counsel who has been afforded the opportunity to adequately cross-examine the witness (Barber v. Page, 390 U. S. 719; People v. Hines, 284 N. Y. 93; People v. Qualey, 210 N. Y. 202; Pepple v. Malcolm, 35 A D 2d 1037; see, also, 5 Wigmore, Evidence [3d ed.], §§ 1395-1398, 1402).
Where there i.s an adequate opportunity to cross-examine the witness at the prior proceeding and especially if counsel for the defendant availed himself of that opportunity, the prior testimony bears sufficient “ indicia of reliability ” .and affords the trier of facts at the later proceeding a satisfactory basis for evaluating the truth of the prior testimony. (Mancusi v. Stubbs, 408 U. S. 204, 216; Dutton v. Evans, 400 U. S. 74, 89.)
Thus, the question posed is whether defense counsel had an opportunity to adequately cross-examine the witness at the preliminary hearing. It is necessary to scrutinize the prior proceeding to determine the adequacy of defense counsel’s opportunity to cross-examine the witness on the issues for which the testimony is offered, since the focus of a preliminary hearing is ordinarily narrower than that of a trial. Here, the Judge presiding at the preliminary hearing restricted defense counsel’s cross-examination to challenging “ reasonable cause ” and to laying a foundation for an identification hearing. While this is proper for the purpose of a preliminary hearing, the effect of this ruling restricted defense counsel’s ability to adequately test the reliability of complainant’s identification of the defen
We believe that defense counsel’s inability at the preliminary hearing to test the reliability of the witness’ identification of the defendant constitutes sufficient basis to find that the defendant was denied the opportunity to adequately cross-examine the now deceased witness. Since this testimony was the sole basis for defendant’s conviction, its admission into evidence was not harmless error.
That is not to say that an absent witness’ preliminary hearing testimony may never be used at trial pursuant to CPL 670.10 (see Barber v. Page, 390 U. S. 719, 725-726, supra; Pointer v. Texas, 380 U. S. 400, supra; see, also, Motes v. United States, 178 U. S. 458, 474; cf. West v. Louisiana, 194 U. S. 258, 266-267); it is enough to say that where, as here, the opportunity for cross-examination on a crucial issue is unduly restricted by the court, then the use of that testimony at trial is precluded by the confrontation clauses (U. S. Const., 6th Amdt.; N. Y. Const., art. I, § 6).
Although we hold that the witness’ preliminary hearing testimony must be excluded at a new trial as being violative of the confrontation clauses, we believe the second question posed — whether the failure by the District Attorney, through inadvertence or negligence, to disclose exculpatory material in his control, constitutes a denial of due process to the defendant — requires discussion.
We conclude that the People’s inadvertent or negligent failure to disclose the.erroneous identification of the sole witness against the defendant denied him due process of law.
There can be little doubt that the People have a duty to disclose exculpatory material in their control. (Giglio v. United States, 405 U. S. 150, 153-154; Brady v. Maryland, 373 U. S. 83, 87; People v. Savvides, 1 N Y 2d 554, 556.) The duty arises out of considerations of elemental fairness to the defendant and as a matter of professional responsibility. (Brady v. Maryland, supra, at p. 87; People v. Savvides, supra, at p. 556; see
Here, the People’s case depended entirely on Harry Wankoff’s testimony.
While the rule may seem unduly harsh on the prosecution in this case, the office of the District Attorney is an entity and the individual knowledge of a case possessed by assistants assigned to its various stages must, in the final analysis, be ascribed to the prosecutorial authority. (Giglio v. United States, supra.)
In sum, we hold that the defense counsel was denied the opportunity to adequately cross-examine the sole witness against the defendant at the preliminary hearing, thereby precluding the use of the testimony at trial, and that the inadvertent or negligent failure of the District Attorney to disclose the erroneous identification of the defendant on the second occasion by the sole witness against the defendant, denied him due process of law.
Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
Order reversed, etc.
. Apparently it was the two other burglars who returned. They were arrested on complaint of the victim, identified by him and subsequently pleaded guilty in satisfaction of both incidents.
. Nor had the defendant moved for discovery of Wankoff’s Grand Jury testimony.
. Section 670.10 reads in part:
«1. * * * [Testimony given by a witness at * * * (b) a hearing upon a felony complaint conducted pursuant to section 180.60 * * * may, where otherwise admissible, be received and read into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death * * *
“2. The subsequent proceedings at which such testimony may be received in evidence consist of:
“ (a) Any proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness’s testimony and to which such testimony related ”.
. Also, a transcript of the preliminary hearing testimony was submitted at a hearing pursuant to United States v. Wade (388 U. S. 218). The complainant’s station house identification of the defendant was suppressed because there was no lineup. But, the court ruled, the complainant’s preliminary hearing identification, based on observations at the time of the crime and the subsequent return, was untainted.
. In his opening statement, the prosecutor referred to the alleged return to the apartment. This was repeated four times in the court’s charge to the jury.