PEOPLE v. COOK (2019)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at hearings;  Robert M. Stolz, J. at jury trial and sentencing), rendered March 25, 2015, convicting defendant of robbery in the first and second degrees and burglary in the first degree, and sentencing him, as a second felony offender, to concurrent prison terms of 12 years, unanimously reversed, on the law, and the matter remanded for a new trial.

The court erred in denying defendant's application, expressly made under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), to receive testimony that one of the robbery victims, who was unavailable to testify at trial, failed to identify defendant at a lineup.  Of the requirements for admission of exculpatory hearsay evidence, the only one in dispute is the reliability of the nonidentification.  Although there were reasons to suspect that this victim may have falsely claimed to be unable to identify anyone in the lineup, the nonidentification plainly bore sufficient “indicia of reliability” under the applicable standard, which “hinges upon reliability rather than credibility” (People v. Robinson, 89 N.Y.2d 648, 657, 657 N.Y.S.2d 575, 679 N.E.2d 1055 [1997]).  Where the proponent of the statement “ ‘is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt’ ” (id. [quoting People v. Settles, 46 N.Y.2d 154, 170, 412 N.Y.S.2d 874, 385 N.E.2d 612 [1978]).

We have considered and rejected defendant's arguments for dismissal.  Because we are ordering a new trial, we find it unnecessary to reach any other issues, except that we find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence.