PEOPLE v. SOTO (2005)

Defendant, Pedro Soto, was convicted by a jury on May 25, 1993, of acting in concert with others in committing the crimes of Murder in the Second Degree (Penal Law § 125.25[1] ), three counts of Kidnapping in the First Degree (Penal Law § 135.25[2][a], [2][c], and [3] ), Conspiracy in the Second Degree (Penal Law § 105.15), and Criminal Impersonation in the First Degree (Penal Law § 190.26).   He was thereafter sentenced on July 2, 1993, to concurrent indeterminate terms of imprisonment of from twenty years to life for the Murder count, fifteen years to life for each of the Kidnapping counts, six to twelve years for the Conspiracy count, and one and one-half to three years for the Criminal Impersonation count.   Defendant now moves, for a second time, pursuant to Criminal Procedure Law §§ 440.10, to vacate his judgment of conviction.   The motion is denied.

Chronology

Defendant's conviction arose out of an incident on May 8, 1991, at approximately 10:00 p.m., at the corner of Gun Hill Road and Rochambeau Avenue in Bronx County, in which he and a group of other Hispanic men drove up in two cars and a van, identified themselves as police officers, and then handcuffed and forced George “Pito” Morales into the van.   Defendant and his cohorts then brought Mr. Morales to the basement of 2969 Briggs Avenue where they questioned him about the murder of a woman two weeks beforehand.   Defendant and his cohorts then beat and tortured Mr. Morales.   Afterwards, Defendant and his cohorts placed Mr. Morales in the furnace, causing him to burn.   Although it is not clear if Mr. Morales' death was caused by Defendant and his cohorts' torture or their placing him in a furnace, it was nevertheless established that the actions of Defendant and his cohorts that night caused Mr. Morales' death.

After Defendant's conviction and sentence, he filed a prior motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10, which the Court denied.   The First Department subsequently affirmed Defendant's conviction and the denial of his CPL § 440.10 motion.   See People v. Soto, 253 A.D.2d 359, 678 N.Y.S.2d 9 (1st Dept.1998), lv. denied, 92 N.Y.2d 1039, 684 N.Y.S.2d 504, 707 N.E.2d 459 (1998).

On May 8, 2002, the United States District Court for the Southern District of New York dismissed Defendant's petition for a writ of habeas corpus and declined to issue a certificate of appealability.   See Soto v. Artuz, 78 Fed.Appx. 760 (2nd Cir.2003), cert. denied, sub nom., Soto v. Phillips, 541 U.S. 945, 124 S.Ct. 1675, 158 L.Ed.2d 372 (2004).   Although the Second Circuit granted the certificate of appealability, it too found Defendant's claim without merit and affirmed the District Court's holding.   See Artuz, supra.

Defendant's Motion

In his present motion, Defendant claims that his Sixth Amendment confrontation clause rights were violated (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ), because, at trial, the videotaped confession of his separately tried co-defendant Victor Garcia, and the prior testimonial statement of one Marilyn Mayo were allegedly introduced at trial against him even though Mr. Garcia and Ms. Mayo did not testify themselves.

Discussion

After an exhaustive review of the trial record in this matter, neither a videotaped confession of Mr. Garcia nor a prior testimonial statement of Ms. Mayo were ever introduced against Defendant.   Therefore, Defendant's motion to vacate his judgment of conviction on these grounds is denied pursuant to C.P.L. § 440.30(4)(c), and (d), as it is conclusively refuted/contradicted by the trial transcript and there is no reasonable possibility that this allegation is true.

However, the following testimony was given by a police detective regarding Mr. Garcia:

ASST. DIST. ATTY.:  Detective, at any time during did you take pedigree information from Mr. Garcia?

DET. LANDESBERG:  Yes.

ASST. DIST. ATTY.:  Do you recall what his occupation was?

DET. LANDESBERG:  He was the super of 2969 Briggs Avenue

(Tr. at 247)

 Before determining whether pedigree information is considered testimonial pursuant to the Crawford, supra, rubric, it must first be determined whether this is an issue to be addressed on CPL § 440.10 collateral review after direct appeals have been exhausted.   In Mungo v. Duncan, 393 F.3d 327 (2nd Cir.2004), the Second Circuit joined the Tenth and Eighth Circuits (see Brown v. Uphoff, 381 F.3d 1219 [10th Cir.2004], cert. denied, sub nom., Brown v. Lampert, 543 U.S. 1079, 125 S.Ct. 940, 160 L.Ed.2d 822 [2005];  Evans v. Luebbers, 371 F.3d 438 [8th Cir.2004], cert. denied, sub nom., Evans v. Roper, 543 U.S. 1067, 125 S.Ct. 902, 160 L.Ed.2d 800 [2005];  cf. Bockting v. Bayer, 399 F.3d 1010 [9th Cir. 2005] ), in holding that, pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Crawford, supra was not applicable on collateral review of convictions that became final before that decision was rendered because although it was a new rule of criminal procedure, it was not a watershed rule necessary to the fundamental fairness of the criminal proceeding and did not improve the overall accuracy of the criminal process.   See also People v. Khan, 4 Misc.3d 1003(A), 791 N.Y.S.2d 872, 2004 WL 1463027 (Sup.Ct. Queens Cty.2004);  cf. People v. Dobbin, 6 Misc.3d 892, 791 N.Y.S.2d 897 (Sup.Ct. New York Cty.2004), and People v. Watson, 5 Misc.3d 1013(A), 798 N.Y.S.2d 712, 2004 WL 2567124 (Sup.Ct. New York Cty.2004) (both of which applied Crawford, supra retroactively on collateral appeal).

 Despite this holding by the Second Circuit, it is well settled that although this Court is “bound by the United State Supreme Court's [and New York State Court of Appeals'] interpretations of Federal statutes and the Federal Constitution, ․ the interpretation of a Federal constitutional question by the lower Federal courts ․ serve [only] as useful and persuasive authority for [New York State courts] while not binding [them]․ [Rather, the New York State courts] in [their] long-standing tradition and independent responsibility [have] exercised [their] correlative adjudicative power on questions of Federal law.”  People v. Kin Kan, 78 N.Y.2d 54, 59-60, 571 N.Y.S.2d 436, 574 N.E.2d 1042 (1991), citing, New York Rapid Transit Corporation v. City of New York, 275 N.Y. 258, 265, 9 N.E.2d 858 (1937) ( “argument ․ rejected in the federal courts, ․ while entitled to great weight, is not binding on [the New York State courts].”), aff'd, 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024 (1938).   See also Matter of Mason, 100 N.Y.2d 56, 760 N.Y.S.2d 394, 790 N.E.2d 769 (2003);  People v. West, 12 A.D.3d 152, 783 N.Y.S.2d 473 (1st Dept.2004);  People v. Rivera, 237 A.D.2d 178, 654 N.Y.S.2d 771 (1st Dept.1997), lv. denied, 90 N.Y.2d 863, 661 N.Y.S.2d 190, 683 N.E.2d 1064 (1997), lv. denied, 91 N.Y.2d 836, 667 N.Y.S.2d 690, 690 N.E.2d 499 (1997).   The guiding Court of Appeals case regarding whether to apply new United States' Supreme Court cases about Sixth Amendment Confrontation Clause issues retroactively is People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995).   However, Eastman, supra, like Mungo, supra, is merely an application of Teague, supra, and the Court finds the following reasoning from Mungo, supra, at 335-36, to be especially useful and persuasive:

Crawford (supra ) ․ precludes admission of highly reliable testimonial out-of-court statements that would have been admissible under the old rules.   In such instances, juries will be deprived of highly reliable evidence of guilt, and cases that otherwise would have resulted in well-deserved convictions will now result in acquittals or hung juries.   We recognize that Crawford's (supra ) rule derives from the principle that cross-examination is a better engine of truth-determination than a judge's assessment of the reliability of uncross-examined hearsay.  Crawford, supra, at [61], 124 S.Ct. at 1370, 158 L.Ed.2d at 199.   We do not question this principle.   But it does not necessarily follow that the Crawford (supra ) rule will improve the accuracy of the process․ Where the testimony was admissible under the old rules precisely because it was reliable, these applications of Crawford (supra ) will diminish, rather than increase, the accuracy of the process.   In short, the advent of the Crawford (supra ) rule brings about substantial changes in the protection given by the Confrontation Clause to an accused from receipt of uncross-examined statements.   In some instances those changes will likely improve the accuracy of the factfinding process;  in others they will likely impair the accuracy of the factfinding process.   Because Teague's (supra ) test of a watershed rule requires improvement in the accuracy of the trial process overall, we conclude that Crawford (supra ) is not a watershed rule.   We thus conclude that Crawford (supra ) should not be applied retroactively on collateral review.

As such, the Court agrees and holds that Crawford, supra, is not applicable on collateral review.¹

 In any event, the Court finds that the pedigree information at issue in this case is not testimonial in nature, in that it was not “a solemn declaration or affirmation made for the purpose of establishing or proving some fact,” nor a statement that was “made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  Crawford, supra, at 52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193.   See also Mungo, supra, at 336, n. 9 (“Although the word ‘interrogation’ can include any asking of questions, the first meaning listed [for ‘interrogate’] in Webster's Third New International Dictionary is ‘to question typically with formality, command, and thoroughness for full information and circumstantial detail.’   Webster's Third New International Dictionary 1192 [1976].   We believe the Supreme Court intended this more limited meaning, which is more consistent with other types of testimonial statements the Court mentioned.”);  People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112 (1st Dept. 2005) (“Crawford repeatedly stresses the element of formality and reiterates that the Confrontation Clause was primarily directed at evidence bearing a resemblance to depositions and affidavits, even if unsworn.”).

This case is similar to People v. Newland, 6 A.D.3d 330, 775 N.Y.S.2d 308 (1st Dept.2004), lv. denied, 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835 (2004), lv. denied, 3 N.Y.3d 759, 788 N.Y.S.2d 676, 821 N.E.2d 981 (2004), in that “[e]ven assuming that this testimony conveyed an implicit assertion by a nontestifying declarant, it was not received for its truth, but as background evidence to complete the narrative of events ․ [and] the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted’ (Crawford, supra at [59], n. 9, 124 S.Ct. at 1369, n. 9, 158 L.Ed.2d at 197-98, n. 9).”

Nonetheless, even if this information was considered testimonial in nature pursuant to Crawford, supra, its admission was harmless beyond a reasonable doubt.   See People v. Douglas, 4 N.Y.3d 777, 793 N.Y.S.2d 825, 826 N.E.2d 796 (2005);  People v. Hardy, 4 N.Y.3d 192, 791 N.Y.S.2d 513, 824 N.E.2d 953 (2005);  People v. Norcott, 15 A.D.3d 14, 787 N.Y.S.2d 241 (1st Dept.2004);  People v. A.S. Goldmen Inc., 9 A.D.3d 283, 779 N.Y.S.2d 489 (1st Dept.2004), lv. denied, 3 N.Y.3d 703, 785 N.Y.S.2d 31, 818 N.E.2d 673 (2004), lv. denied, 3 N.Y.3d 709, 785 N.Y.S.2d 37, 818 N.E.2d 679 (2004), lv. denied, 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682 (2004).

ORDERED, that Defendant's motion to vacate his judgment of conviction is denied.

FOOTNOTES

1.   Although the Third Department recently held that Crawford, supra, “applies retroactively to all cases, state or federal, pending on direct review or not yet final” People v. Ryan, 17 A.D.3d 1, 3, n. 1, 790 N.Y.S.2d 723 (3rd Dept.2005), it is inapplicable to the case at bar as direct review ceased when leave was denied on December 7, 1998, and the case became final on March 7, 1999.   See Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 107 S.Ct. 708, 712, n. 6, 93 L.Ed.2d 649, 657, n. 6 (1987) (“[F]inal ․ mean[s] a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed,” which, pursuant to Supreme Court Rule 13 [1], is 90 days after leave is denied, “or a petition for certiorari finally denied.”), citing, Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct. 1731, 1734, n. 5, 14 L.Ed.2d 601, 604, n. 5 (1965).

DOMINIC R. MASSARO, J.