People v. McDowell

88 A.D.2d 522, 449 N.Y.S.2d 981, 1982 N.Y. App. Div. LEXIS 16657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1982
• Status: Published

Opinions

— Judgment of the Supreme Court, New York County (Galligan, J.), rendered January 5,1981 convicting defendant of the crime of robbery in the first degree and sentencing him to a term of imprisonment, execution of which has been stayed pending determination of this appeal, reversed, on the law, and the matter remanded for a new trial. Defendant was convicted of robbery in the first degree after a jury trial. The circumstances of the robbery are rather bizarre. We need not concern ourselves with them other than to note that, German, the complainant, was a member of the Armed Forces then, or shortly thereafter, on shipping orders to Frankfurt, Germany, in the course of his regular military duties. His tour of duty was to be for 18 months. Because the prosecutor feared that German would not be within the jurisdiction of the court at the time of trial he applied for, and over the vigorous opposition of defense counsel, obtained permission to examine German conditionally (CPL 660.10 et seg.). In accordance with CPL 660.40 (subd 2), the examination was recorded on videotape in addition to being recorded stenographically. At the trial German’s conditional examination was offered and received, again over defendant’s objection. The Criminal Procedure Law provides that a conditional examination, otherwise admissible, may be read in evidence at a subsequent proceeding if “the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court”. (CPL 670.10, subd 1.) While it is not disputed that German was on foreign soil at the time of the trial, there is no indication that the prosecution had made any endeavor whatsoever to produce him. The Army had co-operated with the prosecution in the taking of the conditional examination. German was scheduled to ship out on May 19, 1980. The prosecution contacted the Army shortly before that date to arrange for the conditional examination. German was then rerouted and given a three-day pass which, with the consent of the Army, took him beyond the date fixed in his shipping orders, so that the examination could be had. There is no indication that it would have been less co-operative had his return been sought for the trial. At the very least, it was incumbent upon the prosecution to make a good faith and diligent effort to obtain his presence. In the absence of a showing that such an endeavor was made it cannot be said that German could not “with due diligence be brought before the court”. In holding as we do we find it unnecessary to pass upon the constitutional issue of confrontation pressed upon us by defendant. Concur — Sandler, J. P., Bloom, Fein and Milonas, JJ.