People v. Ortiz , 927 N.Y.S.2d 9 ( 2011 )

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered June 9, 2008, convicting defendant, after a jury trial, of criminal facilitation in the second degree, and sentencing him to a term of 7V2 to 15 years, reversed, on the law, and the matter remanded for a new trial.

The undisputed evidence was that defendant was with Michael E. when the latter received a pistol from Doreen B., who believed that the victim, whose nickname was “Butterball,” had robbed a drug dealer who worked for her. When Michael E. said that he did not know who Butterball was, defendant said he would show him who he was. Defendant then accompanied Michael E. to the stairwell of a building where he knew the victim might be and pointed him out to Michael E., who then killed the victim with three shots to the head. As the People correctly contend on appeal, there was ample and strong evidence that defendant knew that Michael E. planned to kill rather than injure or frighten the victim. In this regard, former Assistant District Attorney Sturm testified that when she and Detective Waithe interviewed defendant in Arthur Kill Correctional Facility, he stated that he knew that Michael E. was going to kill Butterball. Indeed, Ms. Sturm testified that defendant told them during the interview that when Michael E. received the pistol, he stated he was going to kill Butterball.

Detective Waithe, however, did not testify that defendant had stated that he had known Michael E. planned to kill the victim or that Michael E. had said he was going to kill the victim. Rather, he testified on direct examination that defendant had made statements to the effect that Doreen B. had said she “wanted something done about this [the robbery]” and that, after taking the gun, Michael E. “agrees he’ll do this.” On cross-examination, Waithe was asked whether defendant had said during the interview that Doreen B. wanted Butterball beaten up. Waithe responded, “Beaten up, hurt.” He was then asked, “That’s it?,” and responded, “That’s it.” More importantly, for purposes of the principal issue on this appeal, a case summary report prepared either by Ms. Sturm, the lead prosecutor at the time, or the assistant district attorney who was assisting her, Karen Friedman Agnifilo, contains the following statement concerning the jailhouse interview: “[Defendant] claims he didn’t know that [Michael E.] was going to kill Butterball.” Ms. Sturm did not recall whether she had prepared the case summary but, in addition to testifying that it was “very possible” she had prepared it, testified that either she or Ms. Friedman Agnifilo had prepared it. In addition, a voluntary disclosure form (VDF) on which Ms. Sturm’s name was typed stated that during the interview defendant “made an oral statement the substance of which was that [Doreen B.] had asked him to hurt ‘Butterball’ for ripping off one of her drug dealers.” As with the case summary, Ms. Sturm testified that although she did not remember whether she had prepared it, either she or Ms. Friedman Agnifilo had prepared it.

The trial court concluded that Ms. Sturm’s testimony concerning the statements made by defendant during the interview could not be impeached with the statements in the case summary and VDF. The basis for the court’s ruling with respect to the case summary, and apparently with respect as well to the VDF, was that “[i]n the absence of [Ms. Sturm] adopting this statement as her own, given her testimony that she is not certain who authored it and does not recall it, . . . it cannot be used to impeach the testimony here at trial.” Because Ms. Sturm had not “affirmatively adopted” the case summary, she could not be impeached with it. As the court went on to state, Ms. Sturm “cannot be properly impeached with this document by virtue of the fact she’s indicated that the document was possibly authored by another individual and not herself and therefore] not having adopted it[,] it is improper to confront her with a prior inconsistent statement.”

On appeal, the People make no attempt to defend the notion that, absent an express admission by a witness that he or she made a prior inconsistent statement, the mere possibility that someone else made the statement precludes impeaching the witness with the statement. However, the People contend that a witness cannot be impeached with a prior inconsistent statement “[i]f the statement cannot be reliably attributed to the witness” (emphasis added). What “reliably” may mean in this context is not clear, particularly because the People also argue that “[s]ince nothing conclusively demonstrated that Sturm was the author of the statements contained in the Summary and VDF, they simply could not be shown to be Sturm’s statements” (emphasis added). Whatever the precise standard may be, the People set it too high. The inference that Ms. Sturm prepared both the case summary and the VDF is a reasonable one, because Ms. Sturm testified that either she or Ms. Friedman Agnifilo had prepared the documents, that Ms. Friedman Agnifilo was not present during the jailhouse interview, that it was “very possible” she had prepared the case summary and that the VDF bore her typewritten name. Moreover, even assuming that Ms. Sturm did not personally prepare each document, it is entirely unreasonable to think that Ms. Sturm, the lead prosecutor in a serious homicide case, did not well know what each document said about a matter of great import: the statements defendant made during the jailhouse interview. Indeed, it is confounding that the People continue to contend that the defense properly was prevented from impeaching the testimony of the lead prosecutor on such a critically important subject with the accounts of defendant’s statements in documents prepared either by the lead prosecutor or by an assistant district attorney she was supervising.

As noted, the People presented strong evidence that defendant knew that Michael E.’s intent was to kill the victim. Ms. Sturm’s testimony that defendant had said that Michael E. had said he was going to kill the victim was extremely damaging testimony. In their brief, the People highlight this testimony, arguing that “[tjhis is one of those rare cases in which the defendant did explicitly explain what was going on in his head at the time of the crime; specifically, he admitted during his jailhouse interview that he knew [Michael E.] intended to kill [the victim].” We agree and in part for this very reason, we conclude that the erroneous preclusion of evidence which could lead the jury to reject this testimony was not harmless error. Morever, of course, regardless of whether Detective Waithe’s testimony regarding the interview contradicted Ms. Sturm’s testimony, his testimony certainly did not corroborate Ms. Sturm’s.^*

Defendant’s challenges to the sufficiency of the evidence are unpreserved (People v Hines, 97 NY2d 56, 61 [2001]; People v Abarrategui, 306 AD2d 20, 21 [2003], lv denied 100 NY2d 617 [2003]), and we decline to review them in the interest of justice. As an alternative holding, we conclude that they are meritless in any event. Defendant’s challenges to the weight of the evidence are likewise meritless. We need not reach any of defendant’s other arguments for reversal. Concur — Gonzalez, P.J., Friedman and McGuire, JJ.

* We note that the day after the court’s ruling, the existence of another document emerged, an “Original Case Report,” containing the same statement reportedly made by defendant (i.e., that he “didn’t know that [Michael E.] was going to kill Butterball”). This document contains the typewritten recitation that it is “From: Asst. D.A. Helen Sturm/Karen Friedman.” Defendant argued that he had not been provided with the document and thus that the prosecution had committed a Rosario violation. The trial court, however, did not rule on the issue of whether there had been a Rosario violation. Rather, it concluded that in the interests of fairness the defense should be permitted the opportunity to recall Ms. Sturm, an opportunity the defense declined. As we are directing a new trial in any event, we need not reach the merits of defendant’s Rosario claim. Although the concurrence finds that the document had not been turned over and that the prosecution thereby violated its obligations under both Rosario and Brady, defendant made no Brady claim at trial (nor does he on appeal), there is no need to address it and the record is not adequate to resolve it.