People v. Perkins

Pine, J. P., and Scudder, J.

(dissenting in part). We agree with the majority that Supreme Court erred in permitting the use of the Grand Jury testimony and supporting depositions of the store owner in place of her live testimony at trial and that *942the court further erred in refusing to suppress defendant’s written statement. As a result of those errors, defendant’s constitutional rights of confrontation and to remain silent were violated. We disagree with the majority, however, that those errors are harmless, and we therefore conclude that the judgment must be modified by reversing the conviction of robbery in the first degree (Penal Law § 160.15 [4]).

The store owner’s Grand Jury testimony and statements related in great detail that defendant and an accomplice entered the store and that defendant, whom she described as “the shorter black male,” held a gun on her and demanded that she remove her jewelry. Defendant also removed the money from the cash register. The two men demanded that the store owner page “Hector,” whom the store owner described as a drug dealer. When Hector arrived at the store, the two men held the store owner and Hector in the basement of the store and demanded to know where Hector kept his drugs. The two men threatened to kill the store owner and Hector if the drugs could not be found by another accomplice who was at Hector’s house looking for the drugs. The store owner and Hector were kept in the basement for approximately two hours, until the store owner heard footsteps and convinced the men that she believed that her daughter was approaching the basement stairs. She opened the door, with defendant holding a gun on her, and saw the police. The store owner pointed to defendant, who ran out the back door of the basement. Approximately 30 minutes later, the store owner identified defendant as the person who robbed her and held her in the basement and also identified the jewelry recovered from defendant as belonging to her.

Defendant’s written statement related how defendant and “Lucky” planned to rob a drug dealer by having the store owner page the drug dealer. Defendant further related that he held a gun on the store owner, took necklaces, a ring, and a watch from her, and took money from the cash register. Defendant’s statement set forth in great detail how defendant and Lucky held the store owner and Hector in the basement and threatened Hector until he told them where the drugs could be found. Defendant ran out the back door of the basement when he realized that the police were in the store.

This case is distinguishable on its facts from People v Brown (266 AD2d 838, lv denied 94 NY2d 860), the case relied upon by the majority in concluding that the errors are harmless. In that case, we concluded that “ [defendant's statement added nothing to the victim’s testimony or the ballistics evidence establishing that defendant shot [the victim] in the face at *943close range with a .380 handgun. There is no ‘reasonable possibility that the error might have contributed to defendant’s conviction’ ” (People v Brown, supra, at 839). Here, the evidence that was erroneously admitted is the evidence that explained to the jury that a robbery in fact occurred. Without the store owner’s Grand Jury testimony and supporting depositions, and defendant’s written statement, the only evidence establishing that defendant forcibly stole property from the store owner is defendant’s oral statement. The investigator who questioned defendant testified that he said to defendant, “[W]hat really happened was you pointed a gun at her * * * and you took her money and jewelry * * * that’s the way it happened isn’t it?,” and defendant responded, “[Y]es, that’s the way it happened.” In our view, it cannot be said that the store owner’s Grand Jury testimony and supporting depositions and defendant’s written statement “added nothing” to defendant’s oral statement (People v Brown, supra, at 839). Clearly there is a “reasonable possibility that the error [in admitting that evidence] might have contributed to defendant’s conviction,” and thus it cannot be said that the error is “harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237). We therefore would modify the judgment by reversing the conviction of robbery in the first degree and vacating the sentence imposed thereon, and we would grant a new trial on count one of the indictment. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Robbery, 1st Degree.) Present— Pine, J. P., Scudder, Burns, Gorski and Lawton, JJ.