        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

635
KA 15-00119
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHARLES R. PIERRE, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR APPELLANT.

VAN HENRI WHITE, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Monroe County Court (Douglas A.
Randall, J.), entered July 21, 2014. The order granted the motion of
defendant to vacate a judgment of conviction pursuant to CPL 440.10
(1) (g).

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: The People appeal from an order granting defendant’s
motion pursuant to CPL 440.10 (1) (g) seeking to vacate the judgment
convicting him, following a jury trial in 2003, of murder in the first
degree (Penal Law § 125.27 [1] [a] [viii]; [b]), two counts of murder
in the second degree (§ 125.25 [1]) and one count of arson in the
second degree (§ 150.15) (People v Pierre, 37 AD3d 1172, lv denied 8
NY3d 989). Contrary to the People’s contention, County Court properly
determined, following a hearing, that defendant proved by a
preponderance of the evidence that “[n]ew evidence has been discovered
since the entry of [the] judgment . . . , which could not have been
produced by the defendant at the trial even with due diligence on his
part and which is of such character as to create a probability that
had such evidence been received at the trial the verdict would have
been more favorable to the defendant” (CPL 440.10 [1] [g]; see CPL
440.40 [6]).

     Two witnesses testified at the hearing that a third party
(declarant) admitted that he beat the two victims with a baseball bat
in their apartment and set a fire to destroy the evidence. The
victims lived in the downstairs apartment of a building on First
Street in Rochester, and the declarant lived in the upstairs
apartment. One witness was a “jailhouse lawyer” from whom the
declarant sought legal advice in 2013 on the issue whether he could be
convicted of those crimes after another person had been convicted of
them. The witness testified that the declarant was concerned that his
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                                                         KA 15-00119

wife, who had left him, would report to the police that he had
committed the crimes. At the time he allegedly made the statements,
the declarant was awaiting trial for a 2007 murder, in which the
victim was beaten and a fire was set in her home. The witness
subsequently testified for the People in that trial, and the declarant
was convicted of the crimes charged. The declarant’s ex-wife
testified at the hearing that the declarant told her on the day of the
crimes in 2002 that he had committed them. She testified that, two
days later, she told the declarant that she was leaving him and
intended to report his crimes to the police, and that the declarant
threatened to kill her and everyone she loved if she did so. A police
witness testified that a 2005 police report indicated that, when
responding to a domestic violence report involving the declarant and
his wife, the declarant’s wife was heard to say to the declarant, “if
you don’t leave I will tell them about the two people you killed on
First Street.” Also admitted in evidence at the hearing was a
recording of the police interview with the declarant’s ex-wife
regarding both the 2002 and 2007 crimes.

     We reject the People’s contention that the testimony of the two
witnesses regarding the declarant’s alleged statements are not
admissible in evidence as admissions against his penal interest
because defendant did not establish that the declarant was unavailable
to testify (see People v McFarland, 108 AD3d 1121, 1122, lv denied 24
NY3d 1220). Inasmuch as the declarant allegedly admitted to killing
two people and committing arson, it is reasonable to assume that he
would exercise his Fifth Amendment right to refuse to incriminate
himself (see People v Ennis, 11 NY3d 403, 413, cert denied 556 US
1240; McFarland, 108 AD3d at 1122). Also contrary to the People’s
contention, the evidence is supported by independent competent proof
indicating that it is trustworthy and reliable (see People v Brensic,
70 NY2d 9, 15, remittitur amended 70 NY2d 722; People v Settles, 46
NY2d 154, 167). Although there was no evidence at the hearing that
the evidence presented at defendant’s trial established that the
victims were beaten to death, we may take judicial notice of our own
records of defendant’s appeal, which establish that the victims died
in the manner described by the witnesses, as reported by the
declarant, and that the evidence against defendant was wholly
circumstantial (see McFarland, 108 AD3d at 1122-1123). Indeed,
“where, as here, the declarations exculpate the defendant, they are
subject to a more lenient standard, and will be found sufficient if
[the supportive evidence] establish[es] a reasonable possibility that
the statement[s] might be true . . . That is because [to do otherwise]
may deny a defendant his or her fundamental right to present a
defense” (id. at 1122 [internal quotation marks omitted]).

     We also reject the People’s contention that the court erred in
admitting the testimony of the declarant’s ex-wife because his
disclosures were subject to a spousal privilege and the declarant had
not consented to her testimony as required by CPLR 4502 (b). The
threat made by the declarant against his wife “is strong evidence that
[the declarant] was not then relying upon any confidential
relationship to preserve the secrecy of his acts and words, and is
sufficient in itself to remove these communications from the
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                                                         KA 15-00119

protection of the privilege” (People v Dudley, 24 NY2d 410, 415; cf.
People v Fediuk, 66 NY2d 881, 883-884).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
