People v. Geoghegan

Kupferman, J. (dissenting).

I accept the statement of facts and the analysis contained in the court’s opinion, but I differ with the conclusions and would affirm. There is but one aspect of defendant’s contentions which gives reason for pause, and that is the Bruton question.

Here, the alleged statement by Sherman, as testified to by Detective Toone, is admissible as a statement against penal interest.* (See Sullivan, Declaration Against Penal Interest Versus Sixth Amendment Confrontation Clause, The Advocate, vol 26, Jan.-Feb., 1979, p 4 [Bronx County Bar Assn.].)

The evidence was overwhelming as against this defendant; he was more culpable than defendant Sherman, whose conviction we affirm simultaneously herewith (70 AD2d 790).

It is urged that Toone’s testimony is inadmissible in that the defendant did not and could not have the opportunity to cross-examine the defendant Sherman. The legal question posed and considered in Bruton v United States (391 US 123) has been clouded by subsequent decisions. (See Dutton v Evans, 400 US 74; People v Maerling, 46 NY2d 289.) It is untenable to argue "that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.” (Dutton v Evans, supra, p 80.) "The confrontation clause does not absolutely require cross-examination, but rather safeguards of reliability” (United States v King, 552 F2d 833, 846).

*288Here, the testimony of Detective Toone with respect to his investigation, leading to the legal problem involved, was trustworthy. (Cf. United States v Medico, 557 F2d 309, cert den 434 US 986.) It contained a sufficient "indicia of reliability” (Dutton v Evans, supra, p 89; United States v Iaconetti, 540 F2d 574, 578, cert den 429 US 1041) and was relevant to help corroborate the over-all account of what happened, as testified to by co-conspirator Gilligan. This case is unlike the situation in Maerling (supra), where the evidence presented was deemed tenuous, untrustworthy and remote.

Sullivan and Markewich, JJ., concur with Murphy, P. J.; Kupferman, J., dissents in an opinion.

Judgment, Supreme Court, New York County, rendered on March 15, 1977, reversed, on the law and as a matter of discretion in the interest of justice, and a new trial directed.

In any event, it is questionable whether this is hearsay. Toone merely testified as to what he heard Sherman say, and it was not offered for the truth of the fact asserted in the statement. (See Richardson, Evidence [10th ed], § 200, p 176; Fisch, NY Evidence [2d ed], § 763; Dutton v Evans, 400 US 74, 88.)