Issue before the Court: Whether the common law past-recollection-recorded exception to the hearsay rule operates to create an exception to CPL 670.10, which prohibits the admission of grand jury testimony when the witness is available to testify at trial, when a police officer witness takes the stand and claims he has no recollection of the events about which he testified in the grand jury. 

 

Held: In a 4-3 decision, with the majority written by Chief Judge DiFiore, the Court held that the trial court did not abuse its discretion in admitting the grand jury testimony as a past recollection recorded because there was a proper foundation for receipt of the evidence, essentially finding that CPL 670.10 does not apply unless the witness is unavailable, and does not otherwise limit the admission of grand jury testimony.

 

CAL observes: First, the makeup of the dissent and the majority reflect what has become a norm for criminal cases, with Judges DiFiore, Stein, Garcia, and Feinman, eager to rule in favor of the People, even if it means creating exceptions to clear statutory language, and Rivera, Wilson, and sometimes Fahey, willing to call out the Court’s pro-government majority. 

 

Second, the Court is once again sloppy with its standard-of-review language, tripping in the opinion’s second sentence when it holds that the trial court did not abuse its discretion when admitting the grand jury testimony under the past-recollection-recorded hearsay exception. Of course, whether an out-of-court statement meets the requirements of a hearsay exception, and whether there is, or should be, a non-textual exception to a statute, are questions of law, or, sometimes, mixed questions, but never questions of discretion. Once those findings have been made, it then becomes a matter of discretion for the court to decide whether the evidence’s probative value outweighs its potential for unfair prejudice. In a case where that second question was never raised, the Court does no one any favors when it collapses or conflates these rules, labeling the issue one of discretion. 

 

On the merits, the Court’s ruling is an outrage. As Judge Wilson reveals in his meticulous dissent, which dismantles the majority opinion, CPL 670.10, entitled “Use in a criminal proceeding of testimony given in a previous proceeding; when authorized,” prohibits the admission of a witness’s grand jury testimony for its truth when the witness is available to testify. Courts do not have the power to elevate hearsay exceptions over the Legislature’s plain statutory language, yet that is precisely what the majority did here. As it is the People who choose whom to call in grand jury proceedings, and the People who get to question those witnesses, the Court has created an exception to clear statutory mandate that favors the prosecution. At a time when the Legislature and the Governor are enacting legislative measures to rebalance the power in the courts to correct historic imbalances favoring the prosecution, the Court’s decision is not only demonstrably wrong, but badly out of step.