People v. McClean

Kane, J.,

dissents and votes to affirm in a memorandum. Kane, J. (dissenting). I am not persuaded that the admission into evidence of the accomplice witnesses’ prior written statements was error. These statements were made to the police four days after the robbery in question,' after the police had indicated that each had implicated the other in the robbery. It was at this point that both Cuff and Whitbeck identified defendant as the perpetrator of the robbery and as the assailant of the counter girl at King’s Variety Store. They also provided the police with a detailed description of their part in the robbery. Formal arrest occurred after execution of the statements and prior to any discussion of preferred treatment in exchange for cooperation with the police. Plea negotiations were mentioned only after the appearance of counsel on their behalf upon their arraignment in Police Court.

Thus, it seems to me that at the time the questioned statements were given, it is more reasonable to conclude that both Cuff and Whitbeck were motivated to tell the truth as to their participation in the criminal activity, rather than to fabricate "to meet the exigencies of the case” (People v Singer, 300 NY 120, 124) and adhere to the conflicting version of noninvolvement previously given to the police on the date of the robbery. In other words, when they realized that they were "caught”, they manifested the normal human reaction to lay bare their part in the crime. Moreover, this admission of being criminally implicated gives reasonable assurance of the veracity of the statement (see, People v Brown, 26 NY2d 88, 92).

It is particularly noteworthy that the contents of Cuff’s statement were fully corroborated by other evidence in the case, which, as evidenced by the verdict, was accepted by the jury. Therefore, I fail to see what motive of self-interest prevailed to induce either witness to falsify when due consideration is given to the circumstances existing at the time either statement was given. The mere fact that, at the time the statements were made, Cuff and Whitbeck were in police custody and confronted with evidence of their involvement in the criminal activity does not, per se, provide a motive to *383falsify, particularly when the statement made is inculpatory in nature (see, People v Baker, 23 NY2d 307, 322, 323). We are not concerned here with proof of any fact contained in these statements, since the statements were introduced merely to corroborate or support the credibility of the witnesses whose testimony was attacked as a recent fabrication (see, People v Katz, 209 NY 311, 339, 340). There is no prejudice to defendant. Counsel for defendant was in possession of all statements made prior to trial, including the earlier exculpatory statement made by Cuff, which was admitted into evidence as a defendant’s exhibit.

Therefore, it is my view that, as to the statements in question, the requirements of the "recent fabrication rule” have been met and their admission into evidence was proper with the weight of that evidence left to the good judgment of the jury (see, People v Dobranski, 89 AD2d 250). Accordingly, for the reasons stated and the otherwise overwhelming evidence of guilt of defendant, I would affirm the judgment of conviction.