People v. Kass ( 2008 )

Dillon, J. (dissenting).

The defendant was incarcerated awaiting trial on a grand larceny charge when the police received information from a confidential informant that the defendant was looking for a “hit man” to murder two individuals expected to testify at the defendant’s impending trial. The police commenced an investigation in which the defendant was led to believe that he was hiring an associate of the informant to kill the two prospective witnesses for money.

During the investigation, the police recorded several phone conversations between the defendant and Detective James MacDonald, who pretended to be an associate of the informant. The police also obtained a recording of a conversation between the defendant and Detective Duane Shepard, who posed as a “hit man” visiting the defendant in prison to discuss business. The defendant was convicted of conspiracy in the second degree and criminal solicitation in the second degree.

The defendant challenges the admission into evidence of the recordings of his conversations with undercover police investigators. As the People concede, a proper foundation was not laid for exhibit 8, the recording of a conversation between the defendant and Detective Shepard at the prison (see People v Ely, 68 NY2d 520, 527 [1986]; People v McGee, 49 NY2d 48, 60 [1979], cert denied 446 US 942 [1980]). However, since the substance of that recorded conversation was placed on the record through Detective Shepard’s testimony, any error in admitting the recording was harmless (see People v Blanco, 162 AD2d 540, 544 [1990]).

Furthermore, the defendant failed to preserve his challenge to the admission of the other recordings dated January 17, 2003, and to both of the recordings dated January 21, 2003 (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-20 [1995]). In any event, the trial court providently exercised its discretion in admitting into evidence each of the recorded conversations between the defendant and Detective MacDonald. Contrary to the defendant’s contention, the People laid a proper foundation for the admission of those recordings (see People v Gibbons, 18 AD3d 773 [2005]). Additionally, there was no real danger that the factfinder would be left to speculate as to what transpired during any inaudible segments of the tapes, since there were independent sources to describe the conversations (see People v Harrell, 187 AD2d 453 [1992]; People v Morgan, 175 AD2d 930, 932 [1991]).

The defendant challenges the admission into evidence of the testimony of Detective MacDonald that he had been contacted by an informant who stated that the defendant was seeking to have two people killed for hire. The court admitted the testimony not for its truth, but to establish the detective’s state of mind in launching an investigation. The defendant’s arguments that the admitted testimony violated his constitutional rights to due process, to present a defense, and to confront witnesses, are not preserved, as no objections were interposed at trial on constitutional grounds (see CPL 470.05 [2]; People v Robinson, 41 AD3d 1183, 1184 [2007]; People v Johnson, 40 AD3d 1011, 1012 [2007]).

In any event, the detective’s testimony was properly admitted into evidence as relevant to the detective’s state of mind (see People v Dean, 41 AD3d 495, 496 [2007]; People v Johnson, 40 AD3d at 1012; People v Leftenant, 22 AD3d 603, 604-605 [2005]). Contrary to the defendant’s contention, the People did not rely on the statement of the informant for its truth in establishing guilt. The informant was mentioned in their opening statement only to explain how and why an investigation was undertaken and was never mentioned in the People’s closing argument. Moreover, the People’s evidence of the truth was the conversational res of the crimes themselves. According to Detective Shepard and as confirmed by certain admissible tape recordings, the defendant discussed criminal conduct with Detective Shepard toward two individuals who were specifically identified as persons scheduled to testify against the defendant at another criminal proceeding. One prospective victim was described as Italian, white, driving a blue Bentley, while the other prospective victim was described by the defendant as Italian, weighing 400 pounds and driving a silver Lexus. The defendant identified the victims’ work location and the time of day they arrive at work. The defendant and Detective Shepard negotiated a price and discussed the means and method of payment, and the method by which the performance of the crimes could thereafter be confirmed to the defendant. The conversations included, inter alia, the defendant’s affirmative agreement with Shepard that the victims be “taken care of,” that one victim will get “two in his head” and the other taken some place to “put him out” in ways to make them look like victims of random crime, and that the defendant’s “problems are going to be eliminated.” The police made efforts during recorded conversations to assure that the defendant was “100 percent sure” of what he wanted done and was not merely “angry at the moment.” There is no interpretation of the prosecution’s evidence other than that the defendant engaged in conspiracy and solicitation to commit contract killings, and possessed the requisite element of intent (,see Penal Law §§ 105.15, 100.10).

In light of the defendant’s affirmative agreement with Detective Shepard that the witnesses be killed, we disagree with the majority’s belief that Detective MacDonald’s testimony is the only evidence of the defendant’s criminal expressions of a desire and intent to arrange killings for hire. As the jury accepted Detective Shepard’s testimony as corroborated by certain tape recordings, any failure by the trial court to provide a limiting instruction regarding Detective MacDonald’s testimony of his conversations with the defendant, if error at all, is harmless (see People v Moses, 35 AD3d 766, 767 [2006]).

To the extent the defendant testified that he was pressured to speak with “hit men” as to negate the requisite element of intent, there is nothing in the record to suggest that the jury failed to consider the defendant’s testimony. Indeed, the jury, in reaching its verdict, rejected it.

Similarly, the defendant’s argument that his hearsay testimony that the informant was “a very big drug dealer in Washington Heights” was improperly excluded, as relevant to his own state of mind and fear of the informant, is unpreserved for appellate review as his state of mind argument is made for the first time on appeal (see CPL 470.05 [2]; People v Sostre, 51 NY2d 958, 960 [1980]; People v Oguendo, 305 AD2d 140, 141 [2003]). Furthermore, we disagree with the majority that the court erred in not allowing the question posed to defense witness Antonio Cruz as to whether there was “any word around Rikers Island that [the defendant] was looking to have somebody killed?” In our view, the Court properly sustained the prosecutor’s objection to the question on hearsay grounds. While the majority views the question as merely focusing upon whether Cruz “heard such a statement uttered,” no extended analysis is needed to conclude that the purpose of the question was to elicit an answer in the negative, thereby supporting the defendant’s contention that he was not attempting to have someone killed. Contrary to the majority’s conclusion, the query to Cruz constituted hearsay inasmuch as it was offered for the truth of the facts asserted, namely, that there was no word around Rikers Island that the defendant was attempting to arrange a murder for hire (see generally People v Robles, 38 AD3d 1294 [2007] [trial court properly excluded as hearsay the testimony of several witnesses that they heard another witness repeat a remark allegedly made by the victim]).

Contrary to the majority’s determination, the defendant was not entitled to a missing witness charge. The argument on appeal that the prosecution failed to make diligent efforts to locate the informant for trial, after the informant had been released from incarceration, is unpreserved for appellate review (see CPL 470.05 [2]; People v Lopez, 19 AD3d 510, 511 [2005]; People v Simon, 6 AD3d 733 [2004]; People v Mazyck, 287 AD2d 654, 655 [2001]People v Porter, 268 AD2d 538 [2000]). Moreover, the request for a missing witness charge, made during the defense case and well after Detective MacDonald’s testimony, was untimely (see People v Woods, 275 AD2d 332 [2000]). In any event, on the merits, the People established that the informant was unavailable to testify at trial as his whereabouts were unknown despite diligent efforts to locate him (see People v Gonzalez, 68 NY2d 424, 427-428 [1986]; People v Sealy, 35 AD3d 510 [2006]). We reject our colleagues’ view that the release of the informant from incarceration, months before the defendant’s trial, satisfied the factors otherwise required for a missing witness charge (see generally People v Gonzalez, 68 NY2d 424 [1986]; People v Vanhoesen, 31 AD3d 805, 809 [2006]).

Since the defendant was afforded “meaningful representation” at trial, the argument that his counsel was ineffective must fail (see People v Benevento, 91 NY2d 708, 712 [1998]).

The defendant’s remaining contentions are without merit.

Prudenti, EJ., and McCarthy, J., concur with Fisher, J.; Dillon and Skelos, JJ., dissent and vote to affirm the judgment in a separate opinion by Dillon, J.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Queens County, for a new trial.