(dissenting). The trial court and the Appellate Division (89 AD3d 529 [1st Dept 2011]) concluded that defendants failed to establish the female codefendant’s unavailability or confirm the reliability of her statement with competent independent evidence. These are the first and fourth elements of the declaration against penal interest exception (People v Settles, 46 NY2d 154, 167 [1978]). The majority memorandum omits any analysis concerning defendants’ failure to meet the first element of that test, which, in my view, is dispositive. Therefore, I respectfully dissent.
Originally, the female codefendant was to be tried with the defendants in this case. Once her lawyer advised the court that she would testify adversely to the defendants, her case was severed. At her trial, which was held before the trial of these defendants, the female codefendant testified that the gun was not hers. She was acquitted of the sole weapons possession count.
At their joint trial, defendants sought to introduce, through Perrington’s former counsel, the female codefendant’s statement that the gun belonged to her. The court stated that the “big hurdle” was the female codefendant’s unavailability and that she was “the best person” from whom the statement could be elicited. The court told defense counsel that if they wanted the female codefendant to testify, they should “reach out to her and have her come in,” or at least make a showing that they tried to locate her. But defense counsel failed to make any showing that the female codefendant was unavailable. In fact, when asked by the court if the defense wanted the female codefendant to testify that the gun was hers, counsel responded, “No, I don’t. She will testify the other way, because she’s already testified to that.” Plainly, defense counsel did not want the female codefendant to testify, and would have rather had the statement come in through defendant Perrington’s former counsel. The trial court eventually concluded that it “can’t help but think that there is some advantage to the defense here by having her unavailable.”
The majority memorandum makes the conclusory statement that “there was also sufficient proof’ of the female codefendant’s *900unavailability (majority mem at 899), but that is not the standard by which judicial determinations concerning the admissibility of declarations against penal interest are reviewed. The trial court here considered the arguments made by the defense concerning their “efforts” to secure the female codefendant’s presence and concluded, in the proper exercise of its discretion, that the defense did not meet its burden of establishing her unavailability (see People v Brensic, 70 NY2d 9, 15 [1987] [providing that the party offering the declaration against penal interest must satisfy all elements]; see also People v Branham, 59 AD3d 272, 273 [1st Dept 2009], lv denied 12 NY3d 814 [2009]). On this record, it could hardly be said that the trial court abused its discretion when it denied the admission of the statement on the ground that the defense failed to establish the female codefendant’s unavailability. In my view, it was unnecessary for the majority to address the reliability element of the declaration against penal interest exception, and I would affirm the order of the Appellate Division.
Chief Judge Lippman and Judges Graffeo, Read and Rivera concur; Judge Pigott dissents and votes to affirm in an opinion in which Judge Smith concurs; Judge Abdus-Salaam taking no part.In each case: Order reversed and a new trial ordered, in a memorandum.