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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Angel Luis SAMPEL, Defendant-Appellant.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, LAWTON, AND HAYES, JJ. Edward J. Nowak, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Margaret A. Jones of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of criminal contempt in the first degree (Penal Law § 215.51[b][i] ) and menacing in the second degree (§ 120.14[1] ).   Defendant's former girlfriend testified at trial that defendant violated an order of protection that prohibited defendant from having contact with her and that defendant raised a hammer over his head and threatened to kill her.   Contrary to defendant's contention, County Court did not abuse its discretion in refusing to permit defendant to cross-examine his former girlfriend with respect to an alleged prior bad act in an attempt to impeach her credibility (see generally People v. Lucius, 289 A.D.2d 963, 964, 737 N.Y.S.2d 717, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840;  People v. Melcherts, 225 A.D.2d 357, 639 N.Y.S.2d 19, lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427).   We agree with defendant, however, that the court erred in refusing to permit a defense witness to testify that defendant's former girlfriend told that defense witness that she had defendant arrested in order to obtain defendant's vehicle.   Defendant's former girlfriend denied on cross-examination that she had made such a statement, and defendant was denied the opportunity to show that his former girlfriend had an interest in his arrest and incarceration by providing extrinsic evidence that contradicted her testimony on cross-examination.  “The denial of the opportunity to contradict answers given by a witness to show bias, interest or hostility in this case deprived defendant of his right to confrontation” (People v. Vigliotti, 203 A.D.2d 898, 899, 611 N.Y.S.2d 413;  see People v. Bartell, 234 A.D.2d 956, 652 N.Y.S.2d 172, lv. denied 89 N.Y.2d 983, 656 N.Y.S.2d 742, 678 N.E.2d 1358;  People v. Green, 156 A.D.2d 465, 548 N.Y.S.2d 752, lv. denied 75 N.Y.2d 813, 552 N.Y.S.2d 563, 551 N.E.2d 1241).   Defendant was convicted based solely on the testimony of his former girlfriend and an order of protection admitted in evidence, and thus it cannot be said that the error is harmless beyond a reasonable doubt (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;  Vigliotti, 203 A.D.2d at 899, 611 N.Y.S.2d 413;  cf. Bartell, 234 A.D.2d 956, 652 N.Y.S.2d 172).   We therefore reverse the judgment and grant a new trial (see Vigliotti, 203 A.D.2d at 898-899, 611 N.Y.S.2d 413).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is reversed on the law and a new trial is granted.

I respectfully concur in the result only.   I agree with the majority that County Court erred in precluding defendant from introducing evidence of a statement made by the complaining witness, defendant's former girlfriend, to her brother.   On cross-examination, the complaining witness denied that she had “put [defendant] in jail” in order to gain possession of a vehicle owned by defendant but titled in her name.   In an offer of proof, defendant tendered the testimony of the brother of the complaining witness that she had told him in the presence of two other persons that she had “purposely put [defendant] in jail just to get the van.” The court excluded the proffered testimony as hearsay.   Without addressing whether the hearsay rule applies, the majority concludes that the testimony was improperly excluded because defendant was “denied the opportunity to show that [the complaining witness] had an interest in his arrest and incarceration by providing extrinsic evidence that contradicted her testimony on cross-examination.”   The majority thus concludes that defendant was denied his right of confrontation, implicitly concluding that the evidence was admissible as evidence-in-chief.   I cannot agree with that analysis.

“The Confrontation Clause provides two types of protections for a criminal defendant:  the right physically to face those who testify against him, and the right to conduct cross-examination” (Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40;  see Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 [“functional purpose” of Confrontation Clause is “in ensuring a defendant an opportunity for cross-examination”];  People v. Eastman, 85 N.Y.2d 265, 274, 624 N.Y.S.2d 83, 648 N.E.2d 459 [“fundamental right embodied in the Confrontation Clause is the right to cross-examine one's adverse witness”];  see generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177).   The right of confrontation includes the right to cross-examine a witness concerning bias or motivation to testify falsely (see Delaware v. Van Arsdall, 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674;  Davis v. Alaska, 415 U.S. 308, 315-317, 94 S.Ct. 1105, 39 L.Ed.2d 347;  Cotto v. Herbert, 331 F.3d 217, 248-249 [2d Cir.2003] ).   Here, defendant's attorney was permitted to cross-examine the complaining witness concerning her alleged statement to her brother, and thus there is no support for the conclusion of the majority that defendant's right of confrontation was implicated (cf. Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431;  Davis, 415 U.S. at 318, 94 S.Ct. 1105;  Cotto, 331 F.3d at 249).   Indeed, if any constitutional right was implicated herein, it was, as defendant contends, the Sixth and Fourteenth Amendment due process right to present witnesses to establish a defense (see Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798, reh. denied 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494;  Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019;  People v. Robinson, 89 N.Y.2d 648, 652-653, 657 N.Y.S.2d 575, 679 N.E.2d 1055).

In my view, the evidence should have been received, not as evidence-in-chief, but for impeachment purposes as a prior inconsistent statement.  “All relevant evidence is ․ admissible at trial unless barred by some exclusionary rule” (People v. Mateo, 2 N.Y.3d 383, 424, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Here, the court properly concluded that the alleged statement of the complaining witness is hearsay because it was offered for the truth of the matter asserted, i.e., that she had falsely accused defendant in order to garner possession of his vehicle (see People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496;  see generally Barker and Alexander, Evidence in New York State and Federal Courts § 8:1 [2001 ed.];   Prince, Richardson on Evidence § 8-101 [Farrell 11th ed.] ).   Contrary to defendant's contention, the alleged statement could not be received under the admission exception to the hearsay rule.  “[A]n admission can only be made by a party and the parties in a criminal action are the State and the defendant[;] the [complaining witness] is not a party” (People v. Auricchio, 141 A.D.2d 552, 529 N.Y.S.2d 163, lv. denied 72 N.Y.2d 954, 534 N.Y.S.2d 668, 531 N.E.2d 300;  cf. People v. Collins, 301 A.D.2d 452, 755 N.Y.S.2d 365, lv. denied 1 N.Y.3d 570, 775 N.Y.S.2d 787, 807 N.E.2d 900 [admission of defendant properly received as inconsistent with his position at trial];  see generally Prince, Richardson on Evidence § 8-201).   Also contrary to defendant's contention, the alleged statement is not admissible as a declaration against penal interest (see People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612;  People v. Dove, 262 A.D.2d 995, 693 N.Y.S.2d 363, lv. denied 94 N.Y.2d 822, 702 N.Y.S.2d 592, 724 N.E.2d 384).   Thus, contrary to the conclusion of the majority, evidence of the alleged statement was properly excluded as evidence-in-chief.

Nevertheless, because the proffered testimony bore directly on the issues before the jury and thus was not collateral, the court should have received it as a prior inconsistent statement for the limited purpose of impeaching the credibility of the complaining witness (see People v. Hudy, 73 N.Y.2d 40, 56-57, 538 N.Y.S.2d 197, 535 N.E.2d 250;  People v. Wise, 46 N.Y.2d 321, 327-328, 413 N.Y.S.2d 334, 385 N.E.2d 1262;  People v. Moore, 193 A.D.2d 627, 628, 597 N.Y.S.2d 444;  see generally Barker and Alexander, Evidence in New York State and Federal Courts §§ 6:50, 8:7;  Prince, Richardson on Evidence § 8-104[a], at 158 [2002-2003 Cum. Supp.] ).


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