| People v Rahman |
| 2016 NY Slip Op 01750 [137 AD3d 523] |
| March 10, 2016 |
| Appellate Division, First Department |
[*1]
|  The People of the State of New York,Respondent, v Rashid Rahman, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel),and Goodwin Procter LLP, New York (Meghan K. Spillane of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Eric C. Washer of counsel), forrespondent.
Judgment, Supreme Court, Bronx County, (Dominic R. Massaro, J.), rendered March21, 2013, as amended March 10, 2014, convicting defendant, after a nonjury trial, ofburglary in the second degree, attempted assault in the first degree (two counts) andcriminal possession of a weapon in the second degree, and sentencing him, as a secondviolent felony offender, to an aggregate term of 15 years; and order, same court andJustice, entered on or about July 24, 2014, which denied defendant's CPL 440.10 motionto vacate the judgment, unanimously affirmed.
The admission of a witness's grand jury testimony under the hearsay exception forpast recollection recorded, coupled with the witness's extensive invocation of hisprivilege against self-incrimination, violated defendant's right of confrontation. However,we find the error to be harmless (see People v Crimmins, 36 NY2d 230[1975&rsqb).
Provided that a proper foundation is laid, grand jury testimony may be admitted aspast recollection recorded, and its admission does not violate the Confrontation Clausewhere the witness testifies at trial and is subject to cross-examination (People v DiTommaso, 127AD3d 11, 15 [1st Dept 2015&rsqb, lv denied 25 NY3d 1162[2015&rsqb), because "when the declarant appears for cross-examinationat trial, the Confrontation Clause places no constraints at all on the use of his priortestimonial statements" (Crawford v Washington, 541 US 36, 59 n 9[2004&rsqb). However, this may not apply when a witness appears attrial but invokes the Fifth Amendment (see People v Ryan, 17 AD3d 1, 4 [3d Dept2005] see also United States v Wilmore, 381 F3d 868, 871-873[9th Cir 2004&rsqb). Not every instance in which a witness invokes theprivilege against self-incrimination will give rise to a Confrontation Clause violation;rather, "the Sixth Amendment is violated only when assertion of the privilegeundermines the defendant's opportunity to test the truth of the witness' direct testimony"(Bagby v Kuhlman, 932 F2d 131, 135 [2d Cir 1991&rsqb,cert denied 502 US 926 [1991&rsqb).
Here, the witness asserted his Fifth Amendment rights and refused to answerquestions that had a direct bearing on testing the truth of his grand jury testimony. Thus,the witness's extensive assertion of his Fifth Amendment rights regarding the materialfacts "undermine[d] the process to such a degree that meaningfulcross-examination within the intent of the [Confrontation Clause]no longer exist[ed]" (United States v Owens, 484 US 554,562 [1988] see also Bagby, 932 F2d at 135).
Nevertheless, the error was harmless under the standard for constitutional error.There was overwhelming direct and circumstantial evidence establishing all the elementsof the crimes, and no reasonable possibility that the error contributed to theconviction.
The court did not violate defendant's right to be present at a material stage of the trialwhen it excluded him from an unrecorded proceeding (from which the prosecutor wasapparently also excluded) at which the court discussed with the above-mentioned witnessand his attorney the witness's invocation of his Fifth Amendment rights. The proceedingconcerned legal matters[*2][*3]and dealt only with the rights of the witness (see People v DeJesus, 32AD3d 753, 754 [1st Dept 2006&rsqb, lv denied 8 NY3d 879[2007&rsqb), and did not "involve testimony or concern issues aboutwhich defendant had special knowledge" (see People v Whitt, 304 AD2d 378,379 [1st Dept 2003&rsqb, lv denied 100 NY2d 589[2003&rsqb).
Defendant has not preserved his claim that his attorney's absence from this interviewviolated his right to counsel (seePeople v Garay, 25 NY3d 62, 67-68 [2015&rsqb), and wedecline to review it in the interest of justice. As an alternative holding, we find that thediscussion of the witness's right to invoke his Fifth Amendment privilege did not affect asubstantial right of defendant, but only affected the witness's rights, and thus did notrequire defense counsel's presence. Unlike the situation in People v Carr (25 NY3d105, 113 [2015&rsqb), there is no reason to believe that anythingthat transpired at the interview could have had any impeachment value. In any event,given the witness's assertion of his privilege, as discussed previously, any impeachmentwould have been impracticable.
Defendant's challenge to the validity of his waiver of the right to a jury trial, made inwriting in open court in accordance with law, is unpreserved, as well as beingunreviewable for lack of a sufficient record, and we decline to review it in the interest ofjustice. As an alternative holding, we reject it on the merits. There is no evidence that thecourt promised a limited scope of sentencing in return for a jury waiver, that counselmade any such representation to defendant, or that defendant relied on any such promisein waiving his right to a jury trial.
Defendant received effective assistance of counsel at sentencing. We perceive nobasis for reducing the sentence, or running it concurrently with defendant's Kings Countysentence. Concur—Tom, J.P., Andrias, Saxe and Kapnick, JJ.