People v Eberhart

[*1] People v Eberhart 2005 NY Slip Op 50775(U) Decided on May 26, 2005 County Court, Ulster County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2005
County Court, Ulster County

THE PEOPLE OF THE STATE OF NEW YORK

against

James Eberhart, Defendant.



195-04



Hon. Donald Williams

Ulster County District Attorney

Ulster County Courthouse

275 Wall Street

Kingston, NY 12401

By: Kevin C. Harp, Esq., of counsel

Attorney for the People

Glen Kroll, Esq.

P.O. Box 10

Bloomingburg, NY 12721

Attorney for the Defendant

Frank J. LaBuda, J.

The defendant James Eberhart is charged by Indictment #195-04 with two counts of Attempted Robbery in the Second Degree in violation of Penal Law sections 110.00/160.10(3) and Penal Law section 110.00/160.10(1), wherein it is alleged that on the 24th day of August, 2004 at about 10:00 p.m. at the parking lot of the Shop-Rite store in Ellenville, New York, defendant attempted to steal a motor vehicle belonging to a 77-year-old woman.

Prior to the defendant's indictment and shortly after his arrest in the early morning hours of August 24th, defendant was viewed by the complainant witness in a show-up identification procedure in close proximity to the Shop-Rite parking lot.

The defendant was indicted on the 8th day of October, 2004. Shortly after indictment, the People made an application for a court-ordered line-up, which was then ordered by the Court for October 25, 2004. [*2]

At a Huntley Hearing, ordered following omnibus motions, the trial court determined that the defendant's written statement, after being fully mirandized by a New York State Police Investigator, admitting to being in the parking lot and victim's car but not admitting to the robbery, is admissible at trial. He claims that he was just in need of a ride home and the elderly woman mistakenly thought he was trying to steal her car, as they struggled inside the car over her car keys.

A Wade hearing was also held in which the show-up identification at the time of the arrest was deemed admissible by the trial court judge.

Nevertheless and some time after the Wade Hearing, the People made another application by Order to Show Cause, which was granted, for a corporal line-up to be held in the Ulster County Jail on April 11th, two weeks prior to jury selection. That line-up was also rescheduled for the convenience of the defendant's attorney, who could not be available for the line-up.

Another Order to Show Cause ordered the defendant's line-up for April 29thth at 1:30 p.m. at the Ulster County Jail, a week before the scheduled trial.

The People by motion in limine seek permission to introduce the defendant's refusal to participate in the line-up as evidence in chief of the defendant's consciousness of guilt for the robbery[FN1].

The defense claims that the defendant's refusal to participate in the line-up is constitutionally privileged communication. The defendant also argues that the instruction that the jury should interpret the defendant's refusal to participate in a line-up some eight months after the alleged incident and after a Wade hearing and where in the first instance the defendant admitted that he was present at the scene of the crime is unduly prejudicial to the defendant and is far outweighed by any probative value of identification.

The Court granted the defendant's application in part for a fact finding hearing and held said hearing, in camera, immediately prior to jury selection. The hearing determined that on April 29th June Harris, a 13-year investigator with Ulster County District Attorney's Office, made arrangements for a line-up at the Ulster County Jail. At that time the investigator noted that defendant's attorney was conferring with the defendant in his cell prior to the line-up, but did not overhear the conversation. The People then rested.

The defense called the defendant who testified that he conferred with his attorney in the [*3]jail cell and that they both noted that the participants in the line-up did not look like him, had different hair styles and were of different age. Defendant also testified that his attorney told him not to participate in the line-up at the jail because there had already been a show-up and the Court had ruled on that. Defendant further testified that no one else was present for his conversations with his attorney relative to the court-ordered line-up. Defendant specifically stated that, "I shouldn't take it because the suppression hearing, they already ruled on it so it didn't make no difference."[FN2]

Following the conclusion of the defendant's testimony the defense rested and the People moved to call the defendant's attorney[FN3] in rebuttal to the defendant's direct testimony. The attorney appeared pursuant to the People's subpoena, was sworn under oath and took the Fifth Amendment with respect to any questions put to him relative to the issue in question, without first having the advice of counsel. The hearing was recessed to give counsel time to consult with an attorney. The hearing resumed with the Court's guidance that Mr. Weiner, Esq. would only be examined as to the line-up advice, if any, given to defendant on or about April 29th. Then in the presence of his counsel and with the Court's admonishment that the defendant had waived any right to privileged communication by testifying and putting legal communication in issue, Mr. Weiner, Esq. testified that he did not under any circumstances advise the defendant not to participate in a court-ordered line-up.

This Court finds beyond all doubt from the credible testimony that the defendant willfully refused to participate in a court-ordered line-up and perjured himself under oath relative to his attorney's alleged advice. This Court finds defendant's testimony unworthy of belief and designed to fabricate a legal defense. This Court further finds that defendant's testimony lacks any credibility, especially in light of his long criminal background dating back to 1979 which shows his propensity to put his personal interests above those of society.[FN4]

The limited issue presented before the Court is a request by the prosecutor to allow testimony regarding the defendant's failure to participate in a court-ordered line-up and a subsequent charge to the jury on consciousness of guilt in that the defendant refused to follow a Court Order to participate in the line-up at the Ulster County Jail prior to trial.

Instances of a defendant's conduct as evidence of consciousness of guilt includes the concealment of identity under CJI 9.16 charge on Consciousness of Guilt, Volume I, 485, [*4]Criminal Jury Instructions of the State of New York.

Similarly, that instruction is founded upon some case law, albeit there is no case law in New York directly on point with respect to a line-up procedure post-arrest. In People v. Kearse, 177 AD2d, 392, (1st Dept.,1991), the court ruled that even where a mere suspect who had not been arrested, but did not come to a police station for a line-up as he had promised after a conversation with a police officer, that such refusal to report was properly regarded as consciousness of guilt.

Other Courts have also ruled that a show-up or line-up stands on the same footing as the giving of handwriting exemplar, that is, physical presence and not a Fifth Amendment privilege and would not be violation of the self incrimination clause.

See, People v. Denard, 148 AD2d 957, (4th Dept., 1989); Matter of Pregent v. Hynes, 73 AD2d, (3rd Dept., 1979) Lv Denied 49 NY2d 1018. See, also, State of Iowa v. Crawley, 633 N.W.2d 802.

It's also noted that U.S. v. Jackson, 866 F 2d, 838, 845, (7th Cir., 1989), adopted that evidence of the defendant's refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt, or, in other words, guilty knowledge.

It must be noted that in this case identification has not been put in issue by the defense since the defendant's statement clearly admits his presence in a situation with the victim in question at the time and location of the alleged robbery. Additionally, the show-up procedure in a Wade hearing was deemed admissible in the People's case in chief and the victim may testify as to her identification of the defendant from the scene of the crime as well as the "show-up."

Shortly after the line-up incident at the Ulster County Jail, the defendant's attorney, by correspondence dated May 2nd, 2005, put the District Attorney's Office and the Court on notice that on April 29th, 2005 Mr. Weiner's client was scheduled for a line-up and that at that time Mr. Eberhart indicated he was "dissatisfied with Mr. Weiner's services, did not want Mr. Weiner to represent him, and that he would be filing a complaint with the Committee On Professional Standards." The defendant used the same tactic at the onset of jury selection in order to delay jury selection on a date that had been scheduled by this Court.

With the defendant sufficiently clouding the issue whether or not he was adequately represented by Mr. Weiner and whether or not Mr. Weiner could, in light of a threat of a complaint to the Committee On Professional Standards, effectively represent the defendant because of the line-up incident, it was incumbent on the People to bring a new Order to Show Cause to clarify the issue of refusal and legal representation and then compel a line-up. Since there is sufficient doubt as to whether or not the defendant was entitled to have counsel present, [*5]either already assigned counsel or newly appointed counsel, this Court assigned new 18b counsel.

This Court opines that a defendant's post-indictment willful failure to participate in a court-ordered line-up procedure would be admissible in the People's case in chief as some evidence of consciousness of guilt. But under the facts attendant herein, the People are precluded from bringing before the jury the defendant's willful failure to participate in the April 29th line-up since identity is not in issue and the defendant admitted his presence at the crime scene and, thus, is not attempting to hide his identity.

This shall constitute the Decision and Order of this Court.

DATED: May 26, 2005

Kingston, NY

______________________________________

Hon. Frank J. LaBuda

Acting Ulster County Court Judge Footnotes

Footnote 1: See, CJI 9.16 CONSCIOUSNESS OF GUILT, Charges of General Applicability, Vol. 1, P.485, Criminal Jury Instructions New York, Committee on Criminal Jury Instructions

Footnote 2: See, Transcript, in camera evidentiary hearing, May 10, 2005, at p.94

Footnote 3: "Cappy Weiner," Esq. of Kingston, New York, had been defendant's 18B counsel prior to jury selection when the Court granted his application to be relieved as counsel because of conflicts the defendant had created with him.

Footnote 4: Defendant's long criminal record included three separate state prison terms for robbery convictions ranging from 5 to 15 years in 1979, 2 ½ to 5 years in 1986 and 12 years to life in 1991.