People v. Shabazz

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendants and a female codefendant were passengers in an automobile that was stopped by the police. All the occupants were charged with second-degree weapon possession after the officers observed a loaded handgun protruding from a handbag near the rear seat of the vehicle where the woman had been sitting.

During the course of pretrial proceedings, the female codefendant had a conversation with Perrington’s lawyer in which she stated that the gun belonged to her. At her separate trial, however, the woman testified that the firearm was not hers and she was acquitted of weapon possession.

Defendants were tried jointly and they requested that Perrington’s (now-former) attorney be allowed to testify about the female codefendant’s acknowledgment of gun ownership under the declaration against penal interest exception to the hearsay rule. Supreme Court held that the statement was inadmissible because the woman’s unavailability had not been proven and the statement lacked reliability. Defendants were subsequently convicted of second-degree weapon possession. The Appellate Division affirmed (89 AD3d 529 [1st Dept 2011]) and a Judge of this Court granted leave to appeal (19 NY3d 1000, 1001 [2012]).

We now reverse. The declaration against penal interest exception to the hearsay rule “recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true” (People v Brensic, 70 NY2d 9, 14 [1987]; see e.g. People v Maerling, 46 NY2d 289, 297 [1978]). The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability (see e.g. People v Brensic, 70 NY2d at 15; People v Settles, 46 NY2d 154, 167 [1978]). The fourth factor is the “most important” aspect of the exception (People v Thomas, 68 NY2d 194, 200 [1986]). Assuming that the other elements are satisfied, such statements can be admissible if there is “a reasonable possibility that the statement might be true” (People v Settles, 46 NY2d at 169-170).

We conclude that the courts below erred by focusing on the inconsistency between the female codefendant’s trial testimony and her pretrial statement to Perrington’s lawyer. Knowledge that a declaration is against penal interests must be assessed “at the time” it was made (People v Osorio, 75 NY2d 80, 86 [1989]), and later recantations generally affect the weight and credibility that a factfinder should ascribe to the statement. Applying this legal standard, there was adequate evidence to establish admissibility under the particular facts of this case: the handgun was found in a handbag located in the rear of the automobile directly adjacent to the female codefendant; she was the only woman in the vehicle; and the circumstances under which the utterance was declared make it clear that the statement was against her interests. Contrary to the dissent’s contention, there was also sufficient proof that the woman was not available to testify. Finally, the exclusion of the statement cannot be deemed harmless because the People’s case was not overwhelming. Defendants are therefore entitled to a new trial.