People v. Taylor

598 N.E.2d 693, 80 N.Y.2d 1, 586 N.Y.S.2d 545, 1992 N.Y. LEXIS 1618
CourtNew York Court of Appeals
DecidedJuly 1, 1992
StatusPublished
Cited by95 cases

This text of 598 N.E.2d 693 (People v. Taylor) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Taylor, 598 N.E.2d 693, 80 N.Y.2d 1, 586 N.Y.S.2d 545, 1992 N.Y. LEXIS 1618 (N.Y. 1992).

Opinions

OPINION OF THE COURT

Hancock, Jr., J.

Defendant was tried before a jury on one indictment and convicted of separate crimes involving two different victims: i.e., rape and sodomy of Clara B. and attempted rape and sexual abuse of Elizabeth G. In defendant’s appeal of the Appellate Division’s affirmance of his convictions, we address two issues: (1) on the rape and sodomy counts, whether the trial court erred in admitting — under the hearsay exception for a past recollection recorded — a police officer’s phone message with a license plate number allegedly belonging to defendant’s car; and, (2) on the attempted rape count, whether the court erred in denying defendant’s request for a jury charge on the affirmative defense of renunciation. For the reasons stated hereinafter, we hold: (1) that admission of the phone message as a past recollection recorded was improper and that that error, coupled with the erroneous admission of an uncertified copy of defendant’s car registration, warrants a reversal and a new trial; and, (2) that the court’s denial of defendant’s request for a renunciation charge was correct.

I

On February 24, 1987, a man forced his way into Clara B.’s apartment in the Bronx and raped and sodomized her at [6]*6gunpoint. On March 2, 1987, a man sexually abused and attempted to rape Elizabeth G. at knifepoint in her apartment, also in the Bronx. Detective Thomas Connelly arrested defendant on March 13, and each victim identified him as her attacker at the police station in separate lineups. A Grand Jury subsequently indicted defendant for these and other crimes.

At trial each complainant again identified defendant and the prosecution adduced other evidence linking him to the scene of each crime. Defendant testified and denied any involvement in either crime. After defendant was found guilty but before sentencing he pleaded guilty to other rapes and attempted rape charges with the understanding that the sentences for these charges would be concurrent with and no longer than the sentences to be imposed for the trial convictions.

The Appellate Division affirmed defendant’s convictions, holding that: (1) the phone message with the license plate number was admissible as a past recollection recorded because the observer and transcriber each testified "regarding the accuracy of their respective roles”; and, (2) the trial court "properly refused to instruct the jury on the affirmative defense of renunciation since there was no reasonable view of the evidence that defendant manifested voluntary and complete renunciation of his purpose to rape Elizabeth G.” The court also concluded that the uncertified record of defendant’s automobile registration was improperly admitted, but that the error was harmless. It rejected defendant’s argument that he had been improperly denied his right to have the complainants testify at a pretrial suppression hearing (174 AD2d 430). A Judge of this Court granted defendant leave to appeal.

II

Evidence pertaining to past recollection recorded

Faye Lopez — the daughter of one of Ms. B.’s neighbors— testified that on March 10, 1987, approximately two weeks after Ms. B. was attacked, she was at her mother’s apartment. She and her mother saw and heard a man knocking at Ms. B.’s door. The man was asking for "Cindy”, the fake name which Clara B. testified she had given the rapist. When no one answered, the man left and got into a car. Ms. Lopez testified that she saw the license plate number, wrote it down "with [her] mother”, and then called the police and gave them the [7]*7number. Her mother, however, testified that it was she who got the plate number while her daughter was calling the police. Ms. Lopez tried unsuccessfully to reach Detective Connelly at the Bronx precinct. She talked instead to Detective Valentin who took the message, including the number of the license plate. The next day, Detective Connelly received the phone message containing the license number "567-TBP”. A computer check revealed that a vehicle with a similar plate number "5967-TBP” was registered to defendant. Two days later — linked to the crime scene as the owner of the car— defendant was arrested.

A year later when the case came to trial, Ms. Lopez had lost the piece of paper on which she had written the license plate information. She could not remember it. She testified, however, that to the best of her recollection, the license plate number she gave to Detective Valentin was the one she saw on the car. Detective Valentin testified that he recognized the message to be in his handwriting, but that he could not recall taking the message or writing it down. He stated, however, that it was his habit to take messages as accurately as he possibly could. Based on the combined testimony of Detective Valentin and Ms. Lopez, the trial court, over objection, admitted the memorandum containing the license information under the hearsay exception for a past recollection recorded. Also over objection, the court admitted an uncertified Department of Motor Vehicles record of defendant’s automobile registration containing his license plate number.

Evidence pertaining to the requested renunciation charge

The only relevant evidence appears in the testimony of the victim Elizabeth G. As she recites the events, a man forced his way into her apartment on March 2, 1987. Threatening her with a knife, he made aggressive sexual advances. Because of her fear of the knife, she sought to dissuade him — rather than fighting him or screaming — by "trying to make him believe that he could be [her] boyfriend and he did not have to do it this way”. Despite these efforts, he carried her into the bedroom where he continued to touch and rub himself against her and tried to pull down her pants. After Ms. G. "told him he could come to [her] house anytime”, he relented and they "went back to the living room and started talking”. He took off the surgical gloves he had been wearing during the attack, saying that he was "not going to be needing these anymore”.

[8]*8The man apparently accepted Ms. G.’s suggestion that they "go buy a bottle” to celebrate "getting to know each other”. When they stepped into the hallway outside the apartment on their way "to buy the bottle”, the man had ahold of her upper arm. She slipped back through the door, which was slightly ajar, stating that she had forgotten her pocketbook. The door closed and locked automatically behind her and she stayed inside. As she put it on cross-examination, "I ducked from under his arm and the door closed”. The man knocked on the apartment door and tried to get her to open it by telling her to "get him a tissue”. She refused to let him back in, called the police, and the man left. At the close of the evidence, the court denied defense counsel’s request for a jury charge on renunciation regarding the attempted rape charge.

Ill

We address first the question of the admissibility of the phone message containing the license plate number of defendant’s car under the doctrine of past recollection recorded. Under this doctrine — which has a long history of acceptance in New York (see, e.g., Russell v Hudson Riv. R. R. Co., 17 NY 134; 3 Wigmore, Evidence § 738 [Chadbourn rev 1970]) — a memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection may be received in evidence as a supplement to the witness’s oral testimony (see generally, Richardson, Evidence §§ 469, 473 [Prince 10th ed]; 3 Wigmore, Evidence § 734 [Chadbourn rev 1970]).

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Cite This Page — Counsel Stack

Bluebook (online)
598 N.E.2d 693, 80 N.Y.2d 1, 586 N.Y.S.2d 545, 1992 N.Y. LEXIS 1618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-taylor-ny-1992.