People v Paige

[*1] People v Paige 2005 NY Slip Op 50680(U) Decided on March 23, 2005 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2005
Supreme Court, Kings County

The People of the State of New York,

against

Malvin Paige, Defendant.



9918-98



Attorney for the People:

Charles J. Hynes

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Leonard Joblove

ADA Anthea Bruffee

No.718-250-3300

Attorney for the defendant:

Malvin Page (pro se)

Matthew J. D'Emic, J.

Defendant was convicted after trial of Attempted Rape in the First Degree, among other things, and was sentenced to fifteen years imprisonment. Pursuant to CPL §440.10(1)(h) defendant moves to vacate the judgment of conviction on the ground that (1) he was denied his Sixth Amendment right under the Confrontation Clause, in light of the Crawford [FN1] decision and (2)that Crawford should be applied retroactively.

The motion is denied.

Defendant beat the complainant and dragged her to the rooftop landing of the building. The police heard the victim screaming "help, help, help, rape" and found the defendant with his pants down on top of the victim attempting to rape her. She was taken to the police station while still hysterical, crying and bleeding.

She told an officer that the defendant beat her up when she refused to have sex, then he dragged her to the roof by her hair. The victim never testified at trial. Her statements were admitted into evidence under the "excited utterance" exception to the hearsay rule.

Following his conviction, defendant perfected an appeal on the ground that his constitutional right of confrontation was denied when the Court admitted the victim's statements into evidence. The Appellate Division unanimously affirmed the judgment of conviction holding that "in any event, any error would have been harmless in light of the overwhelming evidence of guilt" People v Paige, 283 AD2d 445 (May 7, 2001).

Defendant was denied leave to appeal this decision to the Court of Appeals, People v Paige, 96 NY2d 866 (2001). Defendant then petitioned the United States District Court for the Eastern District seeking a federal writ of habeas corpus raising the same claim. The United States District Court denied defendant's petition and declined to issue a Certificate of Appealability to the United States Court of Appeals for the Second Circuit Paige v Duncan, 02 [*2]CV 1699 (FB)(EDNY 2003).

In papers dated April 20, 2004, defendant moved the Appellate Division, Second Department to reargue his appeal based on the U.S.

Supreme Court decision in Crawford v Washington, 541 US 36, 124

S. Ct. 1354 (2004). The motion was denied in a decision and order dated June 25, 2004,(People v Paige, NO. 99-09930 2d Dept June 25, 2004). Since the Appellate Division considered the issue post Crawford, it is procedurally barred (CPL §440.10 [2][a]).

However assuming, arguendo, that there has "been a retroactive change in the law controlling such issue" (CPL §440.10 [2][a]), defendant argues that he was denied his right to confront the witness at trial, when the statements she made were admitted as "excited utterances."

In Crawford, the Supreme Court held that admission of testimonial statements violates the Confrontation Clause of the Sixth Amendment, unless the witness is unavailable and the defendant had a "prior opportunity for cross-examination" (Crawford v Washington, 541 US 36, 124 S. Ct. 1354 at 1374).

Those statements made by the complainant while calling out for help during the incident are not testimonial. However, her statements made to police officers at the precinct immediately after the event may be considered testimonial because they were potentially "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Crawford, at 1364).

A recent Third Department decision in People v Ryan,(2005 WL 486846) addressed the issue of retroactivity in a footnote stating,

Although Crawford was decided during the pendency of the instant appeal, we conclude that, to the extent that Crawford enunciated "a new rule for the conduct of criminal prosecutions," it applies "retroactively to all cases, state or federal, pending on direct review or not yet final'"(Griffith v Kentucky, 469 US 314, 328 [1987]).

Since defendant's judgment of conviction became final ninety days after June 27, 2001, Crawford would not apply to his conviction, under the Third Department reasoning.

In any event even if the statements to the police were inadmissible, they are still subject to the harmless error analysis set forth in Cruz v New York, 481 US at 194, and in light of the overwhelming evidence establishing defendant's guilt, including eyewitness testimony and medical evidence, the admission of any impermissible statements would be harmless error.

This constitutes the Decision and Order of the court.

_____________________

Matthew J. D'Emic

J.S.C. Footnotes

Footnote 1:Crawford v Washington, 541 US 36, 124 S. Ct. 1354 (2004).