People v Ayrhart

[*1] People v Ayrhart 2005 NY Slip Op 51100(U) Decided on June 30, 2005 County Court, Niagara County Broderick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2005
County Court, Niagara County

The People of the State of New York,

against

Harry Ayrhart, Defendant.



1986-35



Lawrence Friedman, Esq.,

Genesee County District Attorney

By David E. Gann, Esq.,

Assistant District Attorney, Of Counsel

For the People

Harry Ayrhart, Pro Se,

Defendant

Peter L. Broderick, J.

Defendant's twelfth motion pursuant to Section 440.10 of the New York State Criminal Procedure Law regarding the above conviction is denied in all respects, for reasons noted below.

Mr. Ayrhart was indicted on October 3, 1986, for the crimes of second-degree murder, first-degree burglary and fourth-degree criminal solicitation; and convicted of all charges by jury trial ending on July 9, 1987. This conviction related to Mr. Ayrhart's surreptitious nighttime entry into the residence of his former-criminal-accomplice-turned-government-witness (Randy Neal) for the purpose of permanently silencing him from testifying against both Mr. Ayrhart and Mr. Ayrhart's mother upon pending felony indictments. This purpose he effectively accomplished by slicing the victim's neck with a knife to the point of near decapitation.

Since July 9, 1987, Mr. Ayrhart has traveled a long, repetitious and tortuous post-judgment litigation path. These efforts have included a full appeal to the Fourth Department, unsuccessful applications to appeal to the Court of Appeals, multiple coram nobis applications to the Appellate Division, and eleven prior 440 motions to the trial court. [For extensive summaries [*2]of such litigation, see this Court's eleventh 440 decision entered on April 30, 2003.]

Now Mr. Ayrhart presents his twelfth 440 motion. Unlike the first eleven, this work product is well written and presents cogent argument. Obviously Mr. Ayrhart did not write it. Equally clearly, an attorney wrote it. For that reason, at first blush, it seemed meritorious enough to likely require or warrant a response from the prosecution.

However, while (finally) an appropriate 440 motion to file despite eleven before research quickly revealed that this one is not meritorious and must be denied. Since that conclusion is purely a matter of law, and there being no relevant facts in dispute, no evidentiary hearing is required and no responsive papers from the prosecution are needed to assist the Court in determining the issues presented. Likewise, because Mr. Ayrhart is not entitled to a hearing, he has no right to the assignment of a public lawyer to represent him on this motion. [See, People v. Richardson, 159 Misc2d 167, 603 NYS2d 700 (Kings Co 1993); People v. Ramsey, 2001 WL 1875965, 2001 NY Slip Op 50142 (U) (Sup Ct 2001) and Section 722 (4) of the New York State County Law.]

This 440 motion involves the claimed applicability of the new rule announced in

Crawford v. Washington, 541 US 36, 124 SCt 1354 (2004). Abrogating the contrary portions [FN1] of Ohio v. Roberts, 448 US 56, 100 SCt 2531 (1980), Justice Scalia announced the current determination that the Confrontation Clause of the Federal Constitution generally forbids testimonial hearsay of an unavailable declarant unless the defendant's counsel had an opportunity on some earlier occasion to meaningfully cross-examine that declarant.

Roberts admitted hearsay statements, so long as they were deemed reliable, even though the accused had no opportunity to cross-examine the hearsay declarant. Reliability was determined by either the existence of some firmly rooted hearsay exception or judicial determination that some other particularized guarantee of trustworthiness applied.

Crawford rejected this long-standing historical bastardization of the Founding Fathers' understanding of the right of confrontation. When the hearsay sought to be admitted in a criminal trial is testimonial in nature, the Confrontation Clause demands what it says: the personal presence of the declarant, so that defense counsel can subject that person to cross-examination in an attempt to ferret truth out of the testimony. Only if such a cross-examination had previously been afforded (such as at an adversarial pretrial hearing) would the declarant's absence at trial be excused and the testimonial hearsay admitted before the jury.

In the present case, Mr. Ayrhart contends that the trial prosecutor violated this Crawford rule when he introduced testimony indicating that the victim (Randy Neal) had given a statement to the police investigating a burglary involving the theft of some furs from a business establishment. In that statement, Mr. Neal admitted his and Mr. Ayrhart's involvement in the [*3]crime. The prosecutor also elicited (which Mr. Ayrhart contends is a further Crawford violation) before the trial jury the fact that Mr. Neal had likewise testified before a grand jury, resulting in an indictment against both Mr. Ayrhart and Mr. Ayrhart's mother on felony charges connected with the fur burglary. Finally, Mr. Ayrhart maintains that it was likewise a violation of this new rule for the prosecutor, as he did, to reveal to the jury that a search warrant had been obtained (based in large part upon Mr. Neal's testimony), executed, and led to the recovery of the stolen furs from inside Mr. Ayrhart's residence.

While neither a copy of the victim's police statement nor grand jury testimony were actually marked and introduced at trial, the prosecutor did produce a witness who referred in general terms to the victim's statements implicating Mr. Ayrhart and agreeing to testify against him, together with direct testimony from several witnesses regarding comments made by Mr. Ayrhart evidencing his awareness that Mr. Neal had "ratted him out" and declaring his intent to take care of Mr. Neal so that he could not testify and cause both him and his mother to go to prison [FN2]. The prosecution's basis for all such remarks and testimony was its relevance in proving [*4]Mr. Ayrhart's motive in murdering Mr. Neal. [See, P. v. Molineux, 168 NY 264, 294, 6 Bedell 264 (1901); P. v. Moore, 42 NY2d 421, 397 NYS2d 975 (1977); P. v. Rojas, 97 NY2d 32, 735 NYS2d 470 (2001); P. v. Correal, 160 AD2d 85, 559 NYS2d 1005 (1st Dept 1990); P. v. Linton, 166 AD2d 670, 561 NYS2d 259 (2nd Dept 1990); P. v. Willsey, 148 AD2d 764, 538 NYS2d 342 (3rd Dept 1989) and P. v. Hill, 163 AD2d 813, 558 NYS2d 345 (4th Dept 1990).]

Crawford does not require or warrant a reversal here for at least three reasons.

First (and foremost, putting this motion to rest), Crawford does not even apply. Crawford bars the admission of hearsay that is testimonial [FN3]. [See, Crawford at 1369, n. 9; P. v. Reynoso, 2 NY3d 820, 781 NYS2d 284 (2005); P. v. Newland, 6 AD3d 330, 331, 775 NYS2d 308, 309-10 (1st Dept 2004); P. v. Ruis, 11 AD3d 714, 784 NYS2d 558 (2nd Dept 2004); P. v. Ryan, 790 NYS2d 723, 726, 2005 NY Slip Op 01567 (3rd Dept 2005); P. v. Lewis, 11 AD3d 954, [*5]782 NYS2d 321, 322 (4th Dept 2004) and P. v. Mackey, 5 Misc 3d 709, 785 NYS2d 870 (Crim Ct 2004).] While the Supreme Court left the definition of "testimonial" in a legal limbo and subsequent cases across the country have begun struggling to sharpen that concept, the definition of "hearsay" has remained constant. Hearsay is a statement made out of court (i.e., not in the presence of the jury) and offered as proof of the fact asserted in the statement. [See, Prince-Richardson On Evidence, 11th Edition, §8-101; P. v. Soto, 2005 WL 1134862, 2005 NY Slip Op 25184 (Sup Ct 2005); P. v. Brensic, 70 NY2d 9, 14, 517 NYS2d 120, 122 (1987); P. v. Salko, 47 NY2d 230, 239, 417 NYS2d 894, 982 (1979); P. v. Downing, 112 AD2d 24, 25, 490 NYS2d 403, 404 (4th Dept 1985).] Crawford simply does not apply if the evidence offered testimonial or otherwise is not hearsay. [Cf, Dednam v. State of Arkansas, 2005 WL 23329 (AR Sup 2005); Waltmon v. State of Texas, 2004 WL 1801793 (TX App 2004); Howard v. Walker, 2004 WL 1638197 (WDNY 2004; 19-SUM Crim. Just. 4 (Summer 2004), "Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection," by Richard D. Friedman.]

Here it is clear that the trial prosecutor did not offer the out-of-court "statements" for the proof of their assertions, which is to show that Harry Ayrhart did burgle the stolen furs. Indeed, the prosecutor would have been ecstatic had the allegation been untrue, since as angry as the defendant might be against one truthfully accusing him, he would be even angrier at one falsely accusing him, thereby strengthening his motive for committing the murder.

The issue here was the proof of motive. The motive consisted of Harry Ayrhart's knowledge or belief that Randy Neal was cooperating with the government and, if permitted to testify at a subsequent trial, might well be the sole reason for Harry and his mother being sent to state prison. The prosecutor presented direct evidence of Harry Ayrhart's personal awareness of Randy Neal's testimonial cooperation against him. He further presented much direct evidence, by way of admissions, that Harry Ayrhart harbored enmity as a result and intended to do harm to Randy Neal. These witnesses were all present before the jury, ably and thoroughly cross-examined by defense counsel. While their various weaknesses and credibility problems were fully exposed to the jury, that jury ultimately determined that these witnesses were believable. That determination is uniquely within the jury's province. The trial testimony supports their verdict. The appellate courts have already, upon this defendant's direct appeal, upheld that determination, conceding that the evidence of guilt in this case was "overwhelming." [See, P. v. Ayrhart, 168 AD2d 974, 564 NYS2d 920 (4th Dept 1990), appeal denied by P. v. Ayrhart, 77 NY2d 958, 570 NYS2d 491 (1991), and error coram nobis denied by P. v. Ayrhart, 244 AD2d 1013, 670 NYS2d 649 (4th Dept 1997), and error coram nobis denied by P. v. Ayrhart, 263 AD2d 972, 694 NYS2d 335 (4th Dept 1999), and error coram nobis denied by P. v. Ayrhart, 277 AD2d 1062, 716 NYS2d 349 (4th Dept 2000), and error coram nobis denied by P. v. Ayrhart, 288 AD2d 962, 732 NYS2d 621 (4th Dept 2001), and leave to appeal denied by P. v. Ayrhart, 99 NY2d 555, 754 NYS2d 207 (2002).]

For these reasons, Mr. Ayrhart's motion is denied on the merits. (This determination makes the rest of this decision dictum.)

Second, even if this evidence was "testimonial hearsay," Crawford does not apply retroactively to this case, thus necessitating a denial of the motion on procedural grounds.

As was the case with Judge Larimer in the Western District of New York [Haymon v. NY, 332 FSupp2d 550, 557-8 (WDNY 2004)], this Court is not convinced that Crawford applies retroactively to judgments that have become final on direct review.

[*6]Crawford established a new procedural rule. Accordingly, it should be retroactively applied only if it falls within either of the two well-established exceptions to the general nonretroactivity of such rules: if it prohibits a certain category of punishment for a class of defendants because of their status or offenses, or constitutes a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

The first exception to nonretroactivity is clearly inapplicable. To fall within the second, two requirements must be met: infringement of the rule must seriously diminish the likelihood of obtaining an accurate conviction, and the rule must alter the court's understanding of the bedrock procedural elements to the fairness of a proceeding. [Cf, Teague v. Lane, 489 US 288, 109 SCt 1060 (1989) and P. v. Perfetto, 7 Misc 3d 1031 (A), 2005 WL 1330536, 2005 NY Slip Op 50832 (U) (NY Sup 2005).]

Some cases have held that Crawford is retroactive. Mr. Ayrhart primarily relies upon one of these, P. v. Encarnacion, 6 Misc 3d 1027 (A), 2005 WL 433252 (NY Sup 2005). There the Supreme Court ruled that Eastman requires, in New York, the retroactive application of Crawford on collateral review despite Mungo. [In accord see, P. v. Watson, 5 Misc 3d 1013 (A), 2004 WL 2567124 (NY Sup 2004) and P. v. Dobbin, 6 Misc 3d 892, 791 NYS2d 897 (Sup Ct 2004).]

The Watson-Dobbin-Encarnacion [FN4] approach stands or falls on the strength of this interpretation of Eastman. While these three lower court cases all occurred after Crawford and deal directly with the effects of Crawford, Eastman was decided nine years before Crawford. To determine whether Watson-Dobbin-Encarnacion have it right (that Eastman requires retroactive application of Crawford), an examination of Eastman is necessary.

In P. v. Eastman, 85 NY2d 265, 624 NYS2d 83 (1995), Justice Ciparick authored the majority decision in a murder case where the defendant was convicted, at least in part, by the trial introduction of an inculpatory statement made by a non-testifying codefendant. The trial court had denied a defense motion to sever under Bruton and, instead, redacted the codefendant's statement and permitted its use in the joint trial, reasoning that Eastman's own detailed inculpatory statement rendered the introduction of the codefendant's statement harmless.

Convicted at trial in 1981 and affirmed on appeal in 1985, Eastman's fate seemed sealed, until the United States Supreme Court thereafter decided the case of Cruz v. New York, 481 US 186, 107 SCt 1714 [1987]. In Cruz, the Supreme Court determined (with Justice Scalia authoring the majority opinion) that the Confrontation Clause prohibits the introduction of a codefendant's statement regardless of any "interlocking" confession of the defendant whenever that codefendant elects not to take the stand at trial and be subjected to cross-examination.

The Court of Appeals in Eastman determined this holding to be a new watershed rule implicating a bedrock principle of constitutional procedural law affecting the fundamental fairness and accuracy of the criminal trial; thus, under the Teague principles, it applied retroactively to closed cases. Nowhere in the opinion did the Court of Appeals indicate that the decision was a result of more protective New York rules than existed in the Federal system. [*7]Indeed, the Court expressly relied upon and interpreted Federal cases in reaching its decision [FN5].

For this reason, this Court would now (had it been necessary to reach this issue at all) have looked to Federal cases to determine whether Teague really requires retroactivity in Crawford situations. In other words, Eastman does not speak to Crawford directly (since it occurred long before Crawford). Because Eastman relied exclusively upon Federal interpretation of the retroactivity guidelines, Eastman cannot serve as binding authority that Crawford must be applied retroactively. [Cf., Immuno AG v. J. Moor-Jankowski, 77 NY2d 235, 260-2, 566 NYS2d 906, 921-2 (1991).]

Eastman tells us, and the ruling is binding upon this Court, that in New York criminal procedural rule changes are retroactively applied only if they meet the Federal Teague standard. There is no separate and distinct New York standard. This state uses the Federal yardstick.

Eastman dealt with the retroactivity of the Cruz interlocking confessions prohibition. The Court of Appeals determined that procedural rule change to meet the Teague standard and to be retroactive. The Court did so by interpreting and applying the Teague rule. There was existing Federal authority to consider in reaching that determination and the Court of Appeals clearly referenced at least one such case in Graham v. Hoke, 946 F2d 982 (2nd Cir NY 1991), but there were others [for example, Fernandez v. Leonardo, 742 FSupp 55 (EDNY 1990) judgment reversed by 931 F2d 214 (2nd Cir NY 1991), certiorari denied at 502 US 883 (1991), disagreed with by Bonilla v. Hoke, 773 FSupp 616 (SDNY 1991); Reddy v. Coombe, 730 FSupp 556 (SDNY 1990) and Safian v. Scully, 1991 WL 143403 (SDNY 1991)]. They all held that Cruz met the Federal Teague standard for retroactivity. The Court of Appeals merely confirmed the Federal interpretation of the Federal Teague rule.

Here, however, the Federal authorities appear to be holding that Crawford is applicable only to future cases and to such cases still pending their primary appeal. Applying Teague, they indicate that the Crawford decision fails to meet both requirements necessary to qualify for retroactive treatment to closed cases. [See, Mungo v. Duncan, 393 F3d 327, 336 (2nd Cir NY 2004), "Because Teague's test of a watershed rule requires improvement in the accuracy of the trial process overall, we conclude that Crawford is not a watershed rule. We thus conclude that Crawford should not be applied retroactively on collateral review;" Evans v. Luebbers, 371 F3d 438, 444 (8th Cir MO 2004), " the Crawford Court did not suggest that this doctrine would apply retroactively and the doctrine itself does not appear to fall within either of the two narrow exceptions to Teague v. Lane 's non-retroactivity doctrine;" Sanchez v. US, 2005 WL 1005159 (SDNY 2005) (NO. 01 CR. 908 (HB), 04 CIV. 1827 (HB), "Crawford applies only to 'new cases' or cases that were pending on direct review prior to the Supreme Court's decision;" and Haymon v. New York, 332 Fsupp2d 550, 557 (WDNY 2004), "I am not convinced that Crawford applies retroactively." Also see, 50 S.D.L. Rev 41, 73-6 (2005), "Sir Walter Raleigh Revived: The Supreme Court Re-Vamps Two Decades of Confrontation Clause Precedent in Crawford v. Washington," by Chris Hutton; and 33-SEP Colo. Law. 83, 86 (September 2004), "The Right to [*8]Confront Witnesses After Crawford v. Washington," by Will Hood III and Lucia Padilla.]

Perhaps the most enticing Federal case to deal (albeit by implication) with the issue of Crawford's potential retroactivity is Schriro v. Summerlin, 124 SCt 2519 (2004). This is a United States Supreme Court case decided on June 24, 2004 (after Crawford), where Justice Scalia authored the 6-3 majority opinion. The discussion in that case centered upon the proper interpretation of the Teague rules for retroactivity of a new criminal procedural rule. Although prognosticating likely future Supreme Court rulings is an uncertain practice at best, this case would seem to indicate that the Supreme Court will probably hold if the issue is ever presented to them that Crawford does not apply retroactively to closed cases.

Several other cases (two from New York and one each from Washington, California and Iowa), though not binding, are instructive. They all have concluded that application of the Federal principles results in a conclusion that Crawford is not retroactive to closed cases. [See, P. v. Khan, 4 Misc 3d 1003 (A), 791 NYS2d 872 (NY Sup 2004); P. v. Vasquez, 2005 WL 429807 (NY Sup 2005); In re Markel, 2005 WL 1037377 (WA Sup 2005); P. v. Sisavath, 118 CalApp4th 1396, 13 CalRptr3d 753 (2004); and State v. Williams, 695 NW2d 23, 2005 WL 857104 (IA Sup 2005).]

If and when they are ever faced with this Crawford issue, the Court of Appeals will have to make a decision. Either they will continue to adopt the Federal standard (Teague) and limit Eastman to Cruz, or they will abandon Teague and announce for the first time that a more favorable standard (for the defendant) is required in New York. While the high court in Albany has the authority to do that, such a fundamental change (overruling Eastman's pronouncement that New York embraces the Federal standard) can only properly be effectuated by the Court of Appeals itself. Until such time, this Court would feel constrained to follow Eastman's edict that Teague applies and, in the absence of a direct pronouncement by Albany regarding Crawford's retroactivity, to adopt the Federal rulings holding that Crawford is not retroactive.

Third, and finally, it strikes this Court as highly unlikely that Crawford would bar relevant declarations of an absent declarant when it can be demonstrated by clear and convincing evidence that the defendant was the cause of that unavailability and that he was motivated by the desire specifically to prevent the declarant from testifying. Indeed, Crawford itself acknowledged this unique circumstance that would transcend the Crawford strictures when Justice Scalia noted:

"The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." [Crawford at 1370, emphasis added.]

This is the so-called "forfeiture-by-misconduct doctrine." It is a recognized exception to a defendant's constitutional right of confrontation (as well as to the evidentiary rule against the admission of hearsay evidence) upon a showing that a witness had been rendered unavailable to testify in court through the misconduct of the defendant personally, or of others on his or her [*9]behalf with the defendant's knowing acquiescence. The exception is not based upon the inherent reliability of this class of hearsay evidence, but is essentially a rule necessitated by the defendant's misconduct. That is, it is a rule of necessity to preserve the integrity of the adversary process by reducing the incentive of a criminal defendant to tamper with witnesses. The doctrine arises out of a strong public policy consideration. Because it conflicts with the constitutional right of confrontation, however, the courts have imposed a clear and convincing evidentiary standard of proof for invoking the doctrine. [See, P. v. Geraci, 85 NY2d 359, 625 NYS2d 469 (1995) and P. v. Johnson, 93 NY2d 254, 689 NYS2d 689 (1999).]

Some apparently contend (although no case appears to have ever so ruled) that the Court of Appeals has specifically held that the forfeiture-by-misconduct doctrine cannot be invoked against a defendant in the very trial in which the charge is murder of the unavailable witness, citing P. v. Maher, 89 NY2d 456, 654 NYS2d 1004 (1997). A more careful reading of Maher demonstrates that such was not the holding by the high court.

Maher actually ruled that the doctrine "cannot be invoked where, as in the instant case, there is not a scintilla of evidence that the defendant's acts against the absent witness were motivated, even in part, by a desire to prevent the victim from testifying against him in court." [Maher at 462.] In other words, just because the trial is for murder does not per se render every declaration made by the decedent admissible hearsay. Certainly, by implication at least, Maher left open the possibility that a forfeiture by misconduct could apply in a murder case, so long as the prosecution could demonstrate by clear and convincing evidence to the judge in a Sirois [FN6] hearing that the defendant was responsible for the decedent's unavailability and that he had been motivated by a desire to specifically prevent that victim from giving testimony.

This is the result that seems most logical. It would make little sense to authorize forfeiture of confrontation rights as a penalty for intentionally silencing a witness in a mere robbery or burglary or larceny case, but refusing to similarly penalize a defendant when he intentionally silences by murder and is tried for that murder. To rule otherwise would seem to almost reward, in a perverse fashion, a defendant for the ultimate misconduct rendering the witness unavailable.

In Mr. Ayrhart's case, the prosecution was able to demonstrate beyond a reasonable doubt that he was responsible for the victim's unavailability (as evidenced by the trial verdict, amply supported by the trial evidence already characterized by the appellate courts as "overwhelming"). Had a Sirois hearing been requested, there is no doubt whatever on this record that the prosecutor could have met a clear and convincing standard.

Because of reason number one (statements were not hearsay) without the need to rely upon reasons two (non-retroactivity) and three (forfeiture-by-misconduct doctrine) this Court denies Mr. Ayrhart's twelfth 440 motion in its entirety. His Crawford claims

have been admirably preserved for review on appeal from this decision.

This constitutes the decision and order of the Court. [*10]

Hon. Peter L. Broderick

Dated: June 30, 2005Niagara County Court Judge Footnotes

Footnote 1: Roberts apparently remains viable for situations that do not implicate Crawford because the evidence is not testimonial hearsay. [See, for example, US v. Saget, 377 F3d 223, 227 (2nd Cir NY 2004); Horton v. Allen, 370 F3d 75, 84 (1st Cir MA 2004); 39 U. Rich. L. Rev. 511, 617 (January 2005), "Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses," by Robert P. Mosteller; 33-SEP Colo. Law. 83, 85 (September 2004), "The Right to Confront Witnesses After Crawford v. Washington," by Will Hood III and Lucia Padilla; and 57 Stan. L. Rev. 569, 578 (November 2004), "Crawford v. Washington: A Critique," by Miguel A. Mendez.]

Footnote 2: Such statements included: Paula Skyles Livingston heard Mr. Ayrhart say, several times prior to the murder, that "somebody should kill the punk mother fucker" [TT 2810]; as she, the defendant, the defendant's brother and the brother's girlfriend were watching a television murder movie and immediately after the female protagonist had stabbed someone in that movie Ms. Livingston heard Mr. Ayrhart say "somebody ought to do it to Randy" [TT2809]. This remark was early on the evening of June 1, 1986. The murder occurred during the night of June1-2, 1986. On June 2, 1986, Ms. Livingston testified that she heard Mr. Ayrhart laugh and draw his finger across his neck when asked about what happened [TT 2806]. Attorney D. Michael Murray testified that he had represented Mr. Ayrhart's brother Darren when he discovered and Mr. Ayrhart himself then learned that Randy Neal had begun cooperating with the government against the two Ayrharts [TT 2728]. Darren Ayrhart testified that Harry Ayrhart told him, prior to the murder, that "he was alittle (sic) upset with Randy Neal" [TT 3680]. He further stated that he and his buddy were going to take care of Neal [TT 3679]. Following the murder, Darren Ayrhart testified that Harry admitted to him that Harry and his buddy had gone to Neal's house and took care of him. He said that he went in through a window, walked past the victim's sleeping parents, and entered Neal's bedroom. Harry claimed that he then confronted Randy Neal and cut his throat with a knife. Harry stated that he then returned home and burned the wood handle off the knife and bent it and threw it into the cistern at his house [TT 3670], where the police ultimately recovered the knife. Julie Helsdon testified that a day or two after the murder, she heard Harry Ayrhart say that he went to Neal's house and in through the back window, put his knee into Neal's back and grabbed back his head and asked 'what time is it,' to which, he claimed, Neal replied 'time to die,' and then cut his throat [TT 3584] {footnote continues on bottom of next page}. {Footnote continued from bottom of last page.} Theodore Rhim, a fellow prisoner in the county jail with Harry Ayrhart, testified that while in jail with Harry prior to the murder, Harry Ayrhart told him that Randy Neal was testifying against him in a burglary of some furs and that Harry was worried that he would be going upstate as a predicate or persistent felon if convicted. Harry asked Rhim (who was housed in the same block as Neal) to break one of Neal's fingers or punch him in the face to break his jaw to convince him not to testify. When Rhim declined, Harry said his buddy Joel would get out of Attica in May and he would take care of it. [See, TT 3502, 3503, 3508.] Police Investigator Richard Metz testified that he had investigated the fur burglary. He took a statement from Neal, who confessed and implicated Harry. Neal was arrested and began cooperating. Metz obtained and executed a search warrant, recovering the stolen furs in Harry's home. Three civilians were present during the execution of the warrant: Harry Ayrhart, Darren Ayrhart and Julie Helsdon. Investigator Metz told Harry that he had a warrant and showed it to him. [See, TT 3386-3382.]

Footnote 3: Although there is no need to reach this issue, since this was not hearsay, it is not entirely clear that this was even "testimonial." Had this been a trial for the burglary of the furs, rather than for murder, and the prosecutor introduced the statements of Randy Neal after his demise, that would clearly have been hearsay (offered to prove the truth of the assertion that Harry Ayrhart participated in the burglary) and testimonial (offered to prove guilt upon the offense at trial). Of course, though not intended for use at a murder trial, Randy Neal's statements (both to the police and his testimony before the grand jury) were clearly given in contemplation of probable future court use, albeit in the burglary trial. In that sense, these statements might well qualify as "testimonial."

Footnote 4: Putting them in chronological order.

Footnote 5: While the Court of Appeals, or perhaps even the Appellate Division, may ultimately determine that New York law needs to be more protective than Federal law in this area, that is not a decision for the lower courts to make in the first instance. Thus, Encarnacion is not authority for this proposition.

Footnote 6: See, Holtzman v. Hellenbrand (Sirois), 92 AD2d 405, 460 NYS2d 591 (2nd Dept 1983).