People v. Streiff

Cardamone, J.

(dissenting). I concur in the affirmance of the judgment of conviction with respect to defendant Payne. I part from my brothers with respect to defendants Streiff and Davis and vote to reverse their convictions and order a new trial in each case. In my view the trial court’s charge improperly limited the jury and such mandates a reversal in the interest of justice regardless of counsels’ failure to take an appropriate exception (CPL 470.15, subd. 3, par. [c] and subd. 6, par. [a]; Buel v. People, 78 N. Y. 492; People v. Jones, 32 A D 2d 1069).

By its charge the court precluded the jury from finding Payne guilty of felony murder and the other two defendants guilty of a lesser degree of homicide. Upon a reasonable and permissible view of the facts, however, such a finding would have been possible and the jury expressed, through its request for instructions, a very apparent desire to so find.

It is fundamental law that ‘1 if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime ” such alternative must be given to the jury as a benefit to which the defendant is entitled (People v. Mussenden, 308 N. Y. 558). Charging-down arose historically as a response to the often harsh application of the felony-murder doctrine. It has become a fundamental right to which a defendant is entitled in order for a defendant to have a fair trial. The failure of the trial court to charge-down deprives the defendant of his right to a fair trial because such a failure presents the jury splely with the Trial Judge’s view of the evidence and thus constitutes an undue invasion by the court of the exclusive province of the jury (People v. Oddy, 16 A D 2d 585).. The facts in this case plainly are susceptible to varying interpretations. A permissible view of the evidence with each defendant as a principal actor in causing the death would have entitled each individual defendant to a charge-down independent of the other defendants solely upon their respective culpability (cf. People. v. Martone, 256 N. Y. 395). Even assuming that the jury concluded, on another permissible view of the proof, that the death occurred outside the car while Payne was committing the felony of attempted rape, the jury still could have concluded that either or both of the other defendants lacked the specific intent that the rape take place. Under such circumstances Davis and Streiff might have been found to be reckless (guilty of manslaughter second) or negligent (guilty of criminally negligent homicide) with respect to the victim’s death. The court’s charge that each defendant must be found guilty of the same degree of homicide or not guilty of any homicide at all precluded the jury from finding different degrees of homicide for the respective defendants and put the jury in the position of having either to acquit Streiff and Davis, who they may well have thought were in part responsible, or convict them of felony murder.

• This is not a case where only one defendant acted with respect to this victim and the other defendants’ liability was dependent upon their involvement with the perpetrator as the trial court charged. Rather this case involved three defendants each of whom acted with respect to .the victim. While they might each have been guilty of felony murder, the fact that one was guilty of felony murder did not preclude a jury finding that the others were guilty of some lesser homicide. The court’s charge to the contrary was not warranted under the circumstances.

The defendant Streiff’s motion for a severance and separate trial was denied by the trial court and, in my view, is further reason to reverse Streiff’s conviction and grant him a new trial. The majority has refused to invoke the Bruton rationale (Bruton v. United States, 391 U. S. 123) on the theory that since all the defendants were available for cross-examination the confrontation problem present in Bruton was lacking here. While the availability of the 'witnesses for cross-examination ostensibly alleviates the problem of lack of confrontation, a distinction must be drawn between merely having the witness on the stand, and having the witnesses available for “effective” cross-examination. In Douglas v. Alabama (380 U. S. 415), cited and discussed with approval in Bruton, the court expressly directed its attention to the notion of effective confrontation and cross-examination. In that case, two individuals Loyd and Douglas, charged with assault with intent to murder were tried separately. Loyd was tried first and found guilty and then called to testify against Douglas at his trial. Loyd, invoking his privilege against self incrimination, refused to answer any questions. The prosecution was permitted to examine Loyd as a hostile witness- and asked him to confirm or deny statements read from a writing purported to he his confession. These statements inculpated Douglas. The Supreme Court held that Douglas’ inability to cross-examine Loyd denied Douglas the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. The court noted (p. 420) that “ effective confrontation * * * was possible only if [the witness] affirmed the statement as his. ’ ’

It is plain from a reading 'of Bruton and Douglas that the confrontation guaranteed by the Sixth Amendment requires more than the mere presence of the codefendant on the witness stand. The rule derived from these cases is that if- the party whose statement inculpates his codefendant asserts a constitutional privilege or adopts a position which prevents effective cross-examination, then, the court must act so as to safeguard to the inculpated codefendant his right of confrontation. In the present case, we are presented with this precise problem. Defendant Payne’s statement supplied the culpable mental state lacking in defendant Streiff’s confession. When called as a witness, however, Payne claimed that his Miranda rights had been violated and that his confession was coerced and was untrue. Since Payne refused to affirm his statement, there could be no effective cross-examination or confrontation of him by defendant Streiff’s attorney on the substance of Payne’s statement.

The majority position assures to codefendant Payne the right to assert his constitutional privilege against self incrimination at the expense of his codefendant, Streiff’s, constitutional right of confrontation. Thus the majority view “ picks and chooses ” with respect to the constitutional rights of oodefendants, preserving one but not the other, and illustrates the heavy prejudice which results to a codefendant in the position that defendant Streiff is in when, the trial court fails to delete the inculpating material. Thus, a redaction at least (if not a severance) was mandated with respect to the damaging portion of Payne’s confession in the case against defendant Streiff (People v. La Belle, 18 N Y 2d 405). The failure to delete this material wqs clearly prejudicial to defendant Streiff,

Accordingly, I conclude that the convictions of defendant Streiff and defendant Davis should be reversed and a new trial ordered in each case.

Witmeb and Mottle, JJ., concur with Del Vecohio, J. P.; Cabdamone, J., dissents in part and votes to affirm as to Payne and to reverse on the law and grant a new trial as to Streiff and Davis, in an opinion.

Judgments affirmed.