People v Hernandez
Annotate this CaseDecided on December 4, 2015
County Court, Sullivan County
People of the State of New York
against
Manuel Hernandez
2015-118W
Frank J. Labuda, J.
The issue before this Court is whether hearsay testimony is admissible at a Parker Warnings Hearing, and if so, what if any, weight such hearsay evidence should be given. Mr. Hernandez is awaiting sentencing on a charge of Robbery in the Third Degree, was released on Bail to the Pre-trial (PTR) release program and is charged with a violation of PTR.
Mr. Hernandez was arrested on September 30, 2014, on charges of Robbery in the First Degree, Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree, and Resisting Arrest. He was incarcerated for a significant period of time and ultimately pled guilty to a charge of Robbery in the Third Degree with an agreed upon sentence of six months in jail and five years probation. Mr. Hernandez had completed the jail component of his proposed sentence and was, therefore, released, with the consent of the Prosecutor, in his own recognizance to the PTR Program with supervision through the Sullivan County Probation Department, pending sentencing on July 22, 2015.
On or about August 23, 2015, Mr. Hernandez was arrested on a charge of Criminal Impersonation originating from the Town of Liberty Court in Sullivan County. His ROR status was revoked and he is incarcerated without bail pending sentencing. The nature of that charge is an allegation he gave a different name to the police when questioned. The Prosecution's Office, thereafter requested the schedule of a Parker Warnings Hearing such that the court could determine whether the arrest in Liberty constituted a violation Mr. Hernandez's pre-sentencing conditions.
In support of their position, the Prosecution called Investigator Steven D'Agata of the Village of Liberty Police Department (LPD). Investigator D'Agata testified that the police received a complaint that Mr. Hernandez was involved in an altercation and was in possession of a gun. As such, Officer Brust and Officer McAffee of the LPD approached Mr. Hernandez and questioned him about the incident. The Court will take judicial notice that Mr. Hernandez is Spanish speaking and has limited ability to speak and understand the English language.The testimony at the hearing was that neither Officer Brust, nor Officer McAffee speaks Spanish. Officer D'Agata was not at the scene. Officer D'Agata testified, in essence, to what it is alleged that Mr. Hernandez told Officers Brust and McAffee who confronted him at the alleged scene of the incident. Officer D'Agata testified that the police officers told him that Mr. Hernandez told the police officers at the scene that his name was Carlos Hernandez. Defense counsel objected to this testimony on the ground of hearsay.
Generally, hearsay is permitted at suppression hearings. (CPL See §710.60(4)). [*2]Additionally, hearsay has been held admissible at summary proceedings such as violations of probation. People v. Costanza, 281 AD2d 120 (3d Dept. 2001).
Notwithstanding the general principle that hearsay may be admissible, the Court has full discretion whether to exclude hearsay from admission into evidence or if hearsay is admitted the weight that it should be given. In the instant case, defendant requested that the Court strike any reference of hearsay of the defendant's statements allegedly made to the non-Spanish speaking officers from the record as its probative value in this case is entirely unreliable. The gravamen of the Parker Warnings Hearing is the allegation that Mr. Hernandez gave a false name (Carlos Hernandez) to the police upon questioning him on an allegation which ultimately had no import, no merit, and did not result in any charge as there was no gun. Officer D'Agata also testified that a Spanish-speaking officer (Officer Zayas) communicated with Mr. Hernandez once he was brought to the police station. Officer Zayas was not produced in Court. Instead, the People again relied on the hearsay testimony of Detective D'Agata who stated that Officer Zayas told him that Mr. Hernandez admitted that he had given a false name to Officer Zayas. Must this hearsay testimony also be stricken as unreliable or having little to no probative value? Officer D'Agata as a non-Spanish-speaking person cannot possible testify accurately as to the conversation between Officer Zayas and Mr. Hernandez. Again, the language barrier calls into question to probative value of what was said and its reliability.
If the Court allows the hearsay statements to form the basis of the Parker Warning violation, the defendant's plea conviction for Robbery in the Third Degree, a Class D felony, will stand; and the limitation on the plea bargain sentence of six months in county jail and five years of felony probation, will not stand, and the Court will be free to sentence the defendant to a maximum of two and a third to seven years in state prison. An enhanced prison sentence should not be based upon unreliable hearsay.
Accordingly, because of the inherent unreliability of these statements, the Court will not admit the hearsay, and will give the Prosecutor the opportunity to call non-hearsay witnesses.
This shall constitute the Decision and Order of the Court.
Dated: December 4, 2015
Monticello, New York
__________________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge
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