People v Novak

[*1] People v Novak 2013 NY Slip Op 51574(U) Decided on September 18, 2013 County Court, Sullivan 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2013
County Court, Sullivan County

People of the State New of New York, Plaintiff,

against

Paul Novak, Defendant.



233-2012



Gary Greenwald, Esq.

Greenwald Law Offices

99 Brookside Avenue

Chester, NY 10918

Attorney for Defendant

Hon. James R. Farrell

Sullivan County District Attorney

414 Broadway

Monticello, NY 12701

Attorney for the People

Stephen F. Lungen, Esq.

11 Bank Street

Monticello, NY 12701

Special Prosecutor, Attorney for the People

Frank J. LaBuda, J.

In the sixth week of jury trial for the wife/murder/arson indictment, the prosecution moves to preclude Defendant Novak from calling, as a defense witness at trial, New York State Police Investigator Jeffrey Sicina, who conducted a polygraph examination of Defendant Novak in 2008.[FN1] Defendant Novak intends to call Investigator Sicina (hereinafter called the Investigator) solely to elicit from the investigator the statements of Defendant Novak, which the People argue constitute inadmissible hearsay falling under no recognized exception that would [*2]permit defense counsel to elicit such statements as part of his case, without calling Defendant Novak as a witness. The defendant admits that the polygraph test and its result will not be inquired of.

The People rely upon a plethora of cases. "It is not the intent of the law to permit the defendant to avoid taking the stand and being subject to cross-examination by allowing his story to be presented through the hearsay testimony of another witness." People v Dvoroznak, 127 AD2d 785 [1987]. "The defendant made the exculpatory statement at a time when he had had an adequate opportunity to reflect upon his situation...and it constituted inadmissible hearsay evidence (see, People v Bearthea, 171 AD2d 751)." People v Williams, 203 AD2d 498 [1994]. It is not error to "refus[e] to permit [defendant] to elicit from [a] police witness the purportedly exculpatory statements he made to the officer...[when] the defendant failed to demonstrate that the self-serving hearsay were admissible under any exceptions to the hearsay rule (see, People v Morgan, 76 NY2d 493; People v Shortridge, 65 NY2d 309; People v Morrow, 204 AD2d 356; People v Cuevas, 138 AD2d 620; People v Rodriguez, 121 Ad2d 660)." People v Hughes, 228 Ad2d 618 [1996].

Defendant conceded, at a conference before this Court, that the testimony he seeks to elicit from the Investigator is hearsay. Nonetheless, Defendant argues that such hearsay statements are admissible via the Investigator because it is the People's position that those statements to the Investigator and the other State Police Investigators were untrue and part of his denial or guilt. Defendant argues that a "fabrication' exception exists permitting his elicitation of such statements. No such rule, however, may be found in New York jurisprudence. To the extent that such an argument may be construed as one based in the "recent fabrication" exception to the hearsay rule and the Defendant Novak has not testified, the People argue that the Defendant may not occupy the status of an impeached witness, because no prior consistent statement of Defendant Novak was made to the Investigator at a time when Defendant Novak had no motive to lie.

"It is now firmly settled in this State that an impeached witness cannot be rehabilitated by his antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (Crawford v Nilan, 289 NY 444; People v Williams, 62 Ad2d 1026). In such instances only, prior consistent statements made at a time when there was no motive to falsify are admissible to repel the implication or charge (People v Gilliam, 37 NY2d 722, revg. on dissent at 45 Ad2d 744; People v Coffey, 11 NY2d 142, 146; People v Singer, 300 NY 120 (Desmond, J.); cf. People v Mirenda, 23 NY2d 439, 451-453)." People v Davis, 44 NY2d 269, 277 [1978].

The "recent fabrication' exception to the hearsay rule requires (i) a specific inference, on cross-examination of a witness, that the witness' testimony is a recent fabrication and (ii) the existence of a prior consistent statement of that witness which was "made at a time when there was no motive to falsify." Id. Here, Defendant Novak has rendered no testimony at trial and in 2008 had every motive not to tell the police the truth of his involvement in the homicide/arson. [*3]Therefore, the testimony of Investigator Sicina is per se inadmissible as hearsay not falling with the "recent fabrication" exception. Moreover, any statements made by Defendant Novak to Investigator Sicina in 2008 were made after Defendant, as he is now indicted, had murdered Catherine Novak, and not at a time when there was no motive for him to falsify his statements to the police. Because Defendant's argument fails under both prongs of the "recent fabrication" analysis as set forth by the Court of Appeals in Davis, and because the testimony of the Investigator is comprised wholly of inadmissible hearsay, the testimony of the Investigator must be precluded as a matter of law.

This Court has already precluded all references at trial of the polygraph examination of Defendant Novak. To now allow Defendant to call, as a defense witness, the very investigator who conducted his polygraph examination invites possible error. It is well settled that the results of a polygraph test are unreliable and inadmissible for any purpose. People v Angelo, 88 NY2d 217 [1996]; People v. Shedrick, 66 NY2d 1015 [1985]. The jury may, as a result of the line of questioning into which Defendant intends to inquire, infer that a polygraph examination of Defendant was conducted, in violation of the law in New York and that no such information be placed before the jury. People v Daley, 54 AD2d 1007[1976]; People v McCain, 42 AD2d 866 [1973]; People v Rhodes, 102 Misc 2d 3977 [1980].

The People also submit that this Court should, in adherence to the principle of stare decisis, preclude the testimony of the Investigator based on an application of the reasoning this Court applied in People v Ronald Caruso (2002 WL 523104, 2002 NY Slip Op. 40044(U) (N.Y.Co.Ct. Mar 21, 2002) (NO. 179-01). In that 2002 case where defendant stood accused (and was ultimately convicted) of murder,[FN2] this Court precluded defendant Caruso from calling any witnesses with respect to his exculpatory statement to police. The Court held that defendant's exculpatory statements were inadmissible hearsay, as they did not constitute statements against defendant's penal interest. The Court further found that any holding to the contrary would allow that defendant to "introduce his self-serving version of the events at trial without being subjected to cross-examination (see, People v Sibadan, 240 AD2d 30)" and would "deprive the prosecution the opportunity to cross-examine the defendant/maker of the statements." People v. Caruso (2002 WL 523104, 2002 NY Slip Op. 40044(U) (N.Y.Co.Ct. Mar 21, 2002) (NO. 179-01).

In Caruso, supra, this Court also relied upon People v. Oliphant, 201 AD2d 590, wherein the Appellate Division, Third Department found that, because the People did not elicit an inculpatory portion[FN3] of defendant's statement as part of their case-in-chief, defendant was absolutely barred from eliciting the exculpatory portions thereof as part of his case. Id. In the case at bar, the People have already elicited Defendant's exculpatory statement to police as part [*4]of the case-in-chief, further alleviating the need for Defendant to call another police witness for the hearsay purpose of reiterating Defendant's denial of culpability. Because "a party's self-serving statement is inadmissible at trial when offered in his or her favor, and it may not be introduced either through the testimony of the party or through the testimony of a third person" (id. at 590-91), and in recognition of this Court's prior holding Caruso, as well as deference to the law as set forth by the Appellate Divisions and Court of Appeals, the defendant herein must be precluded from calling the Investigator as a defense witness to the Defendant's "gilded" statements, in the Defendant's case in chief.

"The exculpatory nature of the statements and the circumstances under which they were made support the conclusion that defendant provided a gilded version of events in an effort to minimize his criminal culpability and, as exculpatory, the statements were "not clearly opposed to the declarant's interest" (People v Ferguson, 154 Ad2d 706, 708, quoting People v Crimi, 137 AD2d 702, 702, lv denied 71 NY2d 1025; see, People v Sibadan, 240 Ad2d 30; People v. Richardson, 193 AD2d 969, lv denied 82 NY2d 725)" (People v Valderrama, 285 AD2d 902, 904 [2001]; therefore, such statements are inadmissible as part of defendant's case (id).

Counsel seeks to call the Investigator, inter alia, to admit his reports and written records pursuant to the business records exception to the hearsay rule (pursuant to CPLR §4518,i.e., records made in the regular course of business). Upon laying that foundation, counsel will move to enter the Investigator's notes into evidence and ask various questions regarding his police records. See, Huang v NYC Transit Authority, 49 AD3d 308 (1st Dept. 2008),holding that a police report, which contained statements made by a party that supported that party's position, was admissible, is inapplicable to the case at bar.

Although courts have approved allowing a witness to testify regarding the statement of a non-testifying declarant for purposes of completing the narrative of events and explaining police actions (see, People v Colon, 39 AD3d 233 [1st Dept. 2007]) the case at bar does not present a chain of police events or interrogations that need to encompass the exculpatory defendant's conversations had with the Investigator Polygraphist.

In conclusion, the Court precludes Defendant Novak from calling, as a defense witness, Investigator Sicina, as a matter of law in the defendant's case in chief, adhering to both this Court's own decision in Caruso, as well as the law as set forth in Dvoroznak, Hughes, Davis, and the progeny of case law on this hearsay exception issue.

This shall constitute the Decision and Order of this Court.

DATED:September 18, 2013

Monticello, New York

____________________________________

Hon. Frank J. LaBuda [*5]

Sullivan County Court Judge and Surrogate Footnotes

Footnote 1: The defendant, shortly after the death of his estranged wife and destruction of his home by fire, was interviewed at length by NYS Police Investigators and then taken to the NYS Police Polygraph office where the defendant "passed" two (2) polygraph tests.

Footnote 2:The conviction was overturned on appeal regarding the requirements for vehicular homicide.

Footnote 3:The only inculpatory testimony in the People's case was from the two conspirators, LaFrance and Sherwood, and the co-defendant Sherwood's wife, Hanlon. All of who testified at trial, in the main, that the Defendant made admissions to them in 2008 at the time of the alleged commission of the crime.