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DEFENSE COUNSEL NOT INEFFECTIVE FOR FAILING TO INTRODUCE TAPED THIRD-PARTY CONFESSION, THE RELIABILITY PRONG OF THE STATEMENT AGAINST PENAL INTEREST CRITERIA WAS VERY WEAK.

The Fourth Department determined the defendant’s motion to vacate the judgment of conviction on ineffective assistance grounds was properly denied. The basis of the ineffective assistance claim was his attorney’s failure to put in evidence a third party’s taped confession to the crime (to which defendant had pled guilty). The Fourth Department explained the tape recording did not meet the criteria for a statement against penal interest:

“The declaration against penal interest exception to the hearsay rule recognizes the general reliability of such statements . . . because normally people do not make statements damaging to themselves unless they are true’ ” … . “The exception has four components: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time the statement is made that it is contrary to penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient proof independent of the utterance to assure its reliability … . “The fourth factor is the most important’ aspect of the exception” … , and “[t]he crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself” … . Where, as here, the declaration exculpates the defendant, “[s]upportive evidence is sufficient if it establishes a reasonable possibility that the [declaration] might be true” … . …

In support of her conclusion that the confession was inadmissible, trial counsel testified that all she had was a voice on a tape recording and, based on her discussions with the prior attorney, “there was some question as to whether [the third party] was even voluntarily in [the prior attorney’s] office” when he made the confession. Defendant testified that the third party was a friend of one of his sisters, and that the third party and defendant’s sister smoked crack cocaine together. … [T]he prior attorney made arrangements for the third party to be appointed counsel, but the third party disappeared shortly thereafter and, despite diligent efforts, including maintaining the investigator’s search, trial counsel was unable to locate him even up through defendant’s trial. People v Conway, 2017 NY Slip Op 02530, 4th Dept 3-31-17

 

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