AD1 order dated November 15, 2011, affirming judgment of conviction. Decision below: 89 A.D.3d 529, 932 N.Y.S.2d 472. Lippman, Ch.J., granted leave August 9, 2012.

ISSUE PRESENTED: (1) In an automobile presumption case, the lower court's error in excluding a co-perpetrator's admission to a third-party that the gun was hers, on the ground that her subsequent sworn testimony disavowing ownership rendered the earlier declaration against penal interest unreliable; (2) where the lower court decided the application only on the ground of unreliability, whether the Appellate Division erred, in violation of Lafontaine and CPL 470.15, in resting its affirmance on the alternate ground that the declarant was not shown to be unavailable. (Assigned counsel: Barbara Zolot & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11^th Floor, NYC 10006.) (Leave was also granted to co-defendant Donald Perrington, represented by David Bertan, Esq.)

Issue before the Court: Whether the trial court erred in refusing to allow the defense to introduce a co-perpetrator’s statement that the gun found in the car in which the defendant and others were riding was hers, on the ground that the co-perpetrator’s contradictory testimony at her own trial disavowing ownership rendered the original statement unreliable under the Settles test for admitting declarations against penal interest.

Held: The lower court erred by focusing on the inconsistency in the two statements. Knowledge that a declaration is against penal interest must be assessed "at the time" it was made, and later recantations generally affect the weight and credibility that a fact-finder should ascribe to the statement. There was adequate evidence supporting the truthfulness of the declaration to warrant its admission.

CAL Observes: Another Settles factor was at play in this case - unavailability. The majority simply noted that there was sufficient evidence of unavailability. The dissent (Judges Pigott and Smith), however, stated that the trial court properly exercised its discretion in finding this factor not satisfied, setting forth more of the record on this issue. While the majority may well have been correct, this decision suggests that the Court’s willingness, in certain cases, to gloss over an issue when they want to address a different point (here, the statement’s reliability) or achieve a particular result.