| People v Coleman |
| 2010 NY Slip Op 00068 [69 AD3d 430] |
| January 7, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Darryl Coleman, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Ellen Stanfield Friedman of counsel),for respondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered May 2,2008, convicting defendant, after a jury trial, of manslaughter in the second degree, andsentencing him to a term of 5 to 15 years, unanimously affirmed.
The court properly excluded hearsay evidence offered by defendant, since it was notadmissible either as a declaration against penal interest or pursuant to defendant's right to presenta defense. Shortly after the crime, defendant's then-girlfriend made a videotaped statement to thepolice and the prosecutor. This statement initially tended to support defendant's justificationdefense, but the later portion of the statement expressly contradicted the earlier portion andtended to disprove such a defense. The declarant also admitted that she kicked the victim duringthe incident.
The declarant was arrested for murder but never indicted, and at the time of defendant's trial,more than a year later, the felony complaint against the declarant was still pending. Defendantsought to introduce the videotaped statement at trial, claiming that the declarant was unavailableboth because he could not locate her, and because the attorney representing her in her own casehad stated that she would invoke her right against self-incrimination.
The court properly concluded that defendant had not established the declarant'sunavailability. Defendant did not make sufficient efforts to locate the declarant, given that shehad been regularly making court appearances on her own case, and that defendant declined thecourt's offer to sign a subpoena or material witness order. With regard to the declarant's FifthAmendment privilege, the prosecutor suggested that questioning be structured to avoid anyself-incrimination problem, but conceded that if the declarant appeared in court and the FifthAmendment problem could not be avoided, he would dismiss the case against her. Therefore, thedeclarant's attorney's statement that the declarant would invoke her privilege was not dispositive,because it was made before the prosecutor offered to dismiss the complaint; under thecircumstances, the declarant's availability could not be determined unless she appeared (cf.People v Savinon, 100 NY2d 192, 199 and n 7 [2003]).[*2]
The court also correctly concluded that the statement washighly unreliable, for a number of reasons. Among other things, the declarant contradictedherself, her statement was contradicted by other evidence including medical evidence relating tothe victim's injuries, she appeared on the videotape to be under the influence of drugs, and sheadmitted that critical portions of her statement supporting defendant's justification defense werenot based on personal knowledge.
Accordingly, the declarant was not unavailable, and her statement was not reliable. For eachof these reasons, the statement failed to qualify for admission as a declaration against penalinterest (see People v Settles, 46 NY2d 154, 167-170 [1978]), and there was also noviolation of defendant's constitutional right to present a defense (see Chambers vMississippi, 410 US 284 [1973]; People v Robinson, 89 NY2d 648, 654 [1997]; People v Burns, 18 AD3d 397[2005], affd 6 NY3d 793 [2006]).
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Friedman,Nardelli, Renwick and RomÁn, JJ.