| People v Whitley |
| 2010 NY Slip Op 08765 [78 AD3d 1084] |
| November 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BrianWhitley, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered February 5, 2007, convicting him of robbery in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and as a matter of discretion in the interestof justice, and a new trial is ordered.
The defendant was convicted of robbery in the second degree for his role in the robbery of aSuffolk County gas station. On appeal, the defendant contends that the County Court erred inadmitting into evidence transcripts of the testimony of two gas station employees who hadtestified at his first trial. We agree. CPL 670.10 (1), which operates as a constitutionallypermissible exception to the Sixth Amendment right of confrontation (see People v Diaz,97 NY2d 109, 114 [2001]), allows testimony given by a witness at a prior trial to be admitted at asubsequent trial in limited circumstances, which include situations in which the witness isoutside the state "and cannot with due diligence be brought before the court." "Before proceedingwithout the witness, the court must be assured that the witness is beyond the practical reach ofthe prosecution" (id. at 116).
Here, the People offered evidence at a hearing on this issue that both witnesses had left theUnited States and returned to their native Turkey after the first trial, and that they were unable tolocate and make contact with one of the two witnesses. However, the People failed to establishthat they conducted a sufficiently thorough investigation to locate the witness with whom theywere unable to make contact (see People v McDuffie, 46 AD3d 1385, 1386 [2007];People v Combo, 272 AD2d 992, 993 [2000]; People v Broome, 222 AD2d 1094,1095 [1995]). Furthermore, the People failed to exercise due diligence in attempting to bring thewitness that they were able to contact in Turkey before the court (see People v Diaz, 97NY2d at 116). In this regard, we note that where the People seek to induce a witness to return tothe United States to testify in a criminal trial, the due diligence standard requires them "toexplain to the witness, fully and plainly, what they would do to accommodate" concerns overissues such as "the length of [travel] time required, travel arrangements, expenses and potentialpersonal disruption that might accompany a trip of this sort" (id.). Here, the People didnot offer such an explanation to the witness they made contact with in Turkey.[*2]
We also agree with the defendant's contention, althoughunpreserved for appellate review, that it was error to permit a police detective to testify thatduring interrogation, the defendant, who had become "defensive," stopped answering hisquestions, and refused to give the detective "an explanation for anything." Neither a defendant'ssilence or invocation of the right against self-incrimination during police interrogation can beused against him on the People's direct case (see People v Basora, 75 NY2d 992, 993[1990]; People v Von Werne, 41 NY2d 584, 587-588 [1977]; People v Maier, 77AD3d 681 [2010]; People v Murphy, 51 AD3d 1057, 1058 [2008]), and this rule appliesequally to situations where, as here, the defendant initially responds to questioning but thendeclines to answer additional questions (see People v Hunt, 18 AD3d 891, 892 [2005]).Thus, the subject testimony improperly penalized the defendant for exercising his right to remainsilent and created a prejudicial inference of consciousness of guilt (see People v DeGeorge, 73 NY2d 614, 618-619 [1989]; People v Conyers, 52 NY2d 454, 458-459[1981]; People v Von Werne, 41 NY2d at 588; People v Hunt, 18 AD3d at 892).
Considering the cumulative prejudicial impact of these errors, we cannot deem themharmless (see People v Crimmins, 36 NY2d 230 [1975]; People v Gibian, 76AD3d 583, 589 [2010]; People v Montoya, 63 AD3d 961, 965-966 [2009]).
In light of our determination, we do not reach the defendant's contention that the sentenceimposed was excessive.
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Eng andAustin, JJ., concur.