This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 206
The People &c.,
             Appellant,
        v.
Victor Soto,
             Respondent.




          Melanie A. Sarver, for appellant.
          Mark W. Zeno, for respondent.




LIPPMAN, Chief Judge:
          The central issue in this case is whether an
unavailable witness's statement to a defense investigator- that
she, not defendant, was the driver at the time of the accident
and that she fled the scene- should have been admitted as a


                              - 1 -
                                 - 2 -                         No. 206

declaration against interest.    Because the witness was aware at
the time she made the statement that it was against her interest,
the four prongs of the test described in People v Settles (46
NY2d 154 [1978]) were met and the statement should have been
admitted as a declaration against interest.
           Around midnight on July 11, 2010, police officers were
called to the scene of an automobile accident in the Bronx.       A
witness who lived down the street from where the accident took
place stated that, while he was sitting on his front porch, he
saw defendant driving at 15 miles per hour up and down the block
before colliding with a parked vehicle.      The witness saw no one
else in the car with defendant and as the witness approached
defendant's car, he found defendant in the driver's seat.       When
police arrived, they detected alcohol on defendant's breath,
noticed his slurred speech, and arrested defendant for driving
while intoxicated.   A breath analysis test administered at the
police station revealed defendant's blood alcohol level to be
.22.   At the station, defendant stated, "I started drinking when
I got lost.   I f----- up.   I couldn't drive for s---."
           Lamar Larson, who worked with defendant as a New York
City bus driver, testified at trial that he chanced upon
defendant at the Pelham Bay Diner near the bus depot in the Bronx
at 11:45 p.m. that same night.    Larson went to the diner to pick
up something to eat for his night shift when he saw defendant in
his car with a young woman inside.       The woman was in the driver's


                                 - 2 -
                                - 3 -                        No. 206

seat and defendant was in the passenger seat.     During their brief
conversation, Larson noticed that defendant was slurring his
speech and was drunk.    Larson leaned into the window and said to
the young woman, "make sure he gets home, please," and the woman
promised that she would.   Larson saw the woman drive out of the
parking lot with defendant beside her in the passenger seat.
          Two weeks after the accident, a young woman by the name
of Janny Hunt told defendant's investigator that she was the
driver of the car at the time of the accident.     Hunt was 19 years
old at the time, had no criminal history, and possessed only a
learner's permit.   Hunt met defendant that day on the bus he
drove and they planned to go out that night.     Defendant picked up
Hunt in his car and they went to the diner at which point Hunt
agreed to drive so that defendant could have a few drinks.     As
they were leaving the diner, Hunt recounted meeting defendant's
friend Larson in the parking lot and promising to drive defendant
home safely.   On the way home, Hunt took a turn "too fast" and
hit the parked car.   Defendant yelled and cursed at Hunt, who
"got scared" because "[i]t was late" and her "parents didn't know
[she] was out with [defendant]."     Hunt "said to [defendant] 'I
have to go, I'm sorry.   I can't talk to you now.'"    According to
Hunt, "[defendant] was busy looking at his car and he waved [her]
to leave."   Hunt took a cab home.    About a week later, Hunt ran
across defendant on the bus and he told her that he had been
arrested because they thought he had been driving the car.     She


                                - 3 -
                                - 4 -                         No. 206

agreed to assist him.
           While Janny Hunt recounted the events leading up to the
accident, the investigator took notes.   After the conversation,
the investigator asked Hunt if she would sign the notes as her
own words.1   Hunt then expressed concern that "she would
potentially get in trouble for the things she was saying" about
the accident.   She "was concerned about her parents . . . finding
out about the accident because she was in the car" and "wasn't
driving her own car."   According to the investigator, Hunt asked
"again and again" if the investigator was a lawyer, and asked to
be put in touch with a lawyer when the investigator could not
answer Hunt's questions.   The investigator did not tell Hunt
"anything about the specific trouble she might get into."
Despite her concerns, Hunt reviewed and signed the written
statement.
           When trial commenced, defense counsel indicated that he
would call Hunt as a witness.   Because her testimony could
qualify as an admission to leaving the scene of an accident and
traffic violations, the court appointed an attorney for Hunt.
Defense counsel asked the People to grant Hunt immunity should
she invoke her right to remain silent, a request the People
refused.   After the close of the People's case, Hunt's attorney
invoked the Fifth Amendment on her behalf.   After being refused


     1
      The majority of the Appellate Division so found, based upon
the investigator's direct testimony.

                                - 4 -
                                - 5 -                         No. 206

immunity, defense counsel moved to dismiss the case.     The court
denied the motion.
            Defense counsel then requested that Hunt's statement be
admitted as a declaration against interest.     The court ordered a
hearing outside the presence of the jury, at which the
investigator who took Hunt's statement testified.     Following the
hearing, the court remarked that whether a statement may be
admitted as a declaration against interest "depends upon the
assurance of reliability that comes from the person's awareness
that what they are saying could get them in trouble [with] the
law."   The court "[did] not believe that [Hunt], either at the
time she made it or even immediately following, assuming that
that's considered contemporaneous, was aware that her
declarations could expose her to prosecution for a traffic
offense."    Finding that the declarant did not give "any
expression of that awareness until after the statement [was]
given," the court concluded that the statement was inadmissible
as a declaration against interest.      The court further held that
"the interest which the declaration compromises must be one of
sufficient magnitude or consequence to the declarant to all but
rule out any motive to falsify," relying on People v Maerling (46
NY2d 289, 298 [1978]), and determined that Hunt's minor
violation, in contravention of Vehicle and Traffic Law § 600, did
not qualify.
            The jury convicted defendant of aggravated driving


                                - 5 -
                               - 6 -                          No. 206

while intoxicated and driving while intoxicated.   The Appellate
Division reversed and ordered a new trial, holding that the
declarant's "expressions, at the time of or immediately after her
statement, of apprehension that she could get in trouble for her
conduct, including repeated inquiries about consulting with a
lawyer, sufficed to satisfy the requirement that 'the declarant
must be aware at the time of its making that the statement was
contrary to his [or her] penal interest'" (113 AD3d 153, 161
[2013]).   Other evidence assured the reliability of Hunt's
declaration inasmuch as Larson testified to seeing Hunt driving
defendant home 15 minutes before the accident.
           The dissenters would have affirmed the conviction on
the basis that Hunt was not aware, at the time she made the
declaration to the investigator, that her statement "was adverse
to her penal interest" and "the statement was not sufficiently
reliable" (113 AD3d at 162-163 [Clark, J. dissenting]).    The
dissenters also found the statement untrustworthy because "it
involves the potential exposure to a minor traffic infraction
and, unlike the situation where a defendant confesses to a
violent crime, the penal consequences resulting from the
statement are not obvious, especially to a nineteen year old with
no criminal history" (id. at 164-65).   A dissenting Justice of
the Appellate Division granted the People leave to appeal.
           The declaration-against-interest exception to the
hearsay rule "flows from the fact that a person ordinarily does


                               - 6 -
                               - 7 -                          No. 206

not reveal facts that are contrary to his own interest" unless
those facts are true (Maerling, 46 NY2d at 295; People v Brensic,
70 NY2d 9, 14 [1987]).   A statement qualifies as a declaration
against interest if four elements are met: (1) the declarant is
unavailable to testify as a witness; (2) when the statement was
made, the declarant was aware that it was adverse to his or her
penal interest; (3) the declarant has competent knowledge of the
facts underlying the statement; and (4) supporting circumstances
independent of the statement itself attest to its trustworthiness
and reliability (People v Settles, 46 NY2d at 167).
          Here, the first and third factors are not in dispute.
Hunt was unavailable to testify because she had invoked her Fifth
Amendment right to remain silent, and the People refused to grant
her immunity, despite defense requests.   The third factor was met
because Hunt would have had direct knowledge as to whether she
was driving the vehicle at the time of the accident.   The
parties' arguments on appeal focus on the second and fourth
elements for admissibility, namely, whether Hunt was aware that
the statement was against her penal interest at the time she made
it and whether the statement was sufficiently reliable.
          As the Appellate Division appropriately concluded, the
second factor was satisfied.   Seconds after she made the
statement to the defense investigator, Hunt asked if she could
get into trouble and asked for an attorney.   Only the most
constricted reading of the contemporaneity requirement could


                               - 7 -
                               - 8 -                         No. 206

support excluding Hunt's statement.
          The trial court failed to apply the proper standard
when it ruled that the statement was not sufficiently against
Hunt's penal interest.   We have never held, as the trial court
concluded, that the declaration-against-interest exception is
limited to serious penal consequences.   Rather, until 1970, when
this Court decided People v Brown (26 NY2d 88 [1970]), the
converse was true -- only declarations against pecuniary or
proprietary interests were admissible.   Although leaving the
scene of an accident that caused property damage constitutes a
mere traffic violation, there is no requirement that a statement
against penal interest involve a particularly serious crime (see
Basile v Huntington Utilities Fuel Corp., 60 AD2d 616, 617 [2d
Dept 1977] [admitting to reckless driving sufficient]).
Moreover, the record here is replete with evidence regarding
Hunt's awareness of the potential criminality of her actions;
Hunt verbalized her concern that she would get in "trouble" as a
result of her actions of driving the vehicle during the accident
and fleeing the scene, and she repeatedly requested legal advice
(see People v Fields, 66 NY2d 876, 877 [1985]).   That Hunt also
worried how her parents would react further demonstrates her
understanding of the consequences, rather than exhibiting her
lack of comprehension.
          The fourth factor was also satisfied because Lamar
Larson's testimony corroborated Hunt's statement.   In Settles,


                               - 8 -
                               - 9 -                         No. 206

concerned with the possibility that someone might fabricate a
declaration against interest, this Court held that, before a
declaration against interest is admissible, "there must be some
evidence, independent of the declaration itself, which fairly
tends to support the facts asserted therein" (Settles, 46 NY2d at
168).   Statements offered against the defendant are "subject to
more exacting standards" and are admissible only when "the
interest compromised is of sufficient magnitude or consequence to
the declarant to all but rule out any motive to falsify"
(Brensic, 70 NY2d at 14-15 [internal quotation marks and cite
omitted]).
           By contrast, declarations that exculpate the defendant,
as here, are subject to a more lenient standard (Brensic, 70 NY2d
at 15).   In such circumstances, a defendant need not show that
the penal consequences to the declarant were of such magnitude
that they "all but rule out any motive to falsify" (id.;
Maerling, 46 NY2d at 298). Rather, "[s]upportive evidence is
sufficient if it establishes a reasonable possibility that the
statement might be true" (Settles at 169-170).   We explained that
even "[c]ircumstances of seeming indifference" that "harmonize"
the statement may be sufficient to "furnish the necessary link"
(id. at 169).   In addition, it is irrelevant whether the court
believes the statement to be true: "[i]f the proponent of the
statement is able to establish this possibility of
trustworthiness, it is the function of the jury alone to


                               - 9 -
                                - 10 -                      No. 206

determine whether the declaration is sufficient to create
reasonable doubt of guilt" (id. at 170).
          Larson said he saw a young woman driving defendant's
car shortly before the accident occurred.   That defendant was
seen driving the car at the time of the accident presents a
credibility issue for the jury, as this Court made clear in
Settles (id.).   Further, defendant and Hunt had no previous
relationship that would provide Hunt with a motive to fabricate
(see Brensic, 70 NY2d at 25).    Under the circumstances presented
here, the error was not harmless.
          In light of the foregoing, we need not reach defendant-
respondent's other contentions.
          Accordingly, the order of the Appellate Division should
be affirmed.




                                - 10 -
People v Victor Soto
No. 206




PIGOTT, J.(dissenting):
          Because there is record support for trial court finding
that declarant, Janny Hunt, was unaware that her statement was
against her penal interest at the time it was made, I dissent and
would reverse the order of the Appellate Division.
          Defendant, who was employed as a city bus driver, was
arrested and charged with four counts of driving while
intoxicated after defendant's car struck a parked car.    A witness
at the scene called 911 and approached the car within seconds of
the accident.   At that point, the witness saw defendant "dancing"
in the driver's seat with the radio turned up.    Two weeks later,
defendant encountered Hunt on a city bus and lamented that he had
been arrested for driving while intoxicated.    According to Hunt,
defendant asked her if she could "help him out."    Hunt agreed to
do so by giving a statement to defendant's investigator.     In that
statement, Hunt claimed that it was she, and not defendant, who
was driving defendant's car at the time of the accident.
          Hunt refused to testify at trial, citing Fifth
Amendment concerns.    Defense counsel requested that Hunt's
hearsay statement to the investigator be introduced in evidence
as a declaration against penal interest.    At the court's


                                - 1 -
                                 - 2 -                        No. 206

direction, defense counsel called the private investigator to
authenticate Hunt's statement.    The investigator testified that
she did not apprise Hunt of the consequences of her statement
because the investigator herself was unaware of what penal
consequences, if any, Hunt faced as a result of her admissions.
In her statement, Hunt claimed that she left the scene of the
accident because she did not want her parents to know that she
was with defendant.   The statement indicates that Hunt was
concerned only about what her parents would think.
Significantly, as the investigator's hearing testimony bears out,
it was not until after Hunt signed her statement that she asked
whether she could get in trouble for leaving the scene of the
accident and reiterated her concern about her parents finding out
that she was driving defendant's car.
           During cross examination, the investigator testified
that her conversation with Hunt followed this progression: (1)
Hunt spoke generally about the accident; (2) the investigator
asked if she could write it down; (3) Hunt signed the statement;
and (4) after Hunt signed the statement, Hunt had some questions
about what could happen to her.    The investigator specifically
explained that "We went over [the statement] together and she
signed it.   At the end, she asked me a couple of questions that I
did not know how to answer.   I said to her she could speak to a
lawyer."
           On redirect examination, the investigator testified


                                 - 2 -
                                - 3 -                        No. 206

that "at the beginning of the statement, no she did not express
any concerns.   They came out at the end" (emphasis supplied).1
The investigator explained that Hunt "asked if she could get into
trouble for the accident" and stated that "she was concerned
about her parents finding out about the accident because she was
in the car. . . .   And just generally like how much trouble she
could get into" (emphasis supplied).
            The trial court properly ruled that Hunt was not aware
that the statement was against her penal interest at the time it
was made.   Our holding in People v Settles (46 NY2d 154 [1978])
concerning the "contemporaneous" requirement is dispositive:
"when the statement [is] made the declarant must be aware that it
[is] adverse to his [or her] penal interest" (id. at 167).     This
awareness is premised on the conclusion that any reasonable
person would have known at the time the statement was made that
it was against his penal interest (see People v Thomas, 68 NY2d
194, 199-200 [1986]).
            Hunt admitted to committing a minor traffic infraction,
i.e., leaving the scene of a property damage accident (see
Vehicle & Traffic Law § 600 [1] [a]), while defendant, a city bus
driver whose employment was in jeopardy, was facing four counts
of driving while intoxicated.   There is no indication from either


     1
       This is what the dissent at the Appellate Division
determined (113 AD3d 153, 163 [1st Dept 2013] [Clark, J.,
dissenting]), as do I. The majority at the Appellate Division --
like the majority here -- misread the transcript.

                                - 3 -
                                 - 4 -                           No. 206

the content of Hunt's statement or the investigator's testimony
that Hunt was even remotely concerned about the penal
consequences of her statement.    It is this "contemporaneousness"
factor that renders a declaration against penal interest
reliable.   The trial court deemed Hunt's hearsay statement to be
unreliable precisely because she was not aware of the penal
consequences of her statement when it was made.       In my view,
there was no basis for the Appellate Division, which deemed this
particular factor "more problematic" than the others (113 AD3d
153, 160 [1st Dept 2013]), to disturb the trial court's
determination that Hunt's statement did not meet the
contemporaneousness requirement.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Chief Judge Lippman. Judges Rivera,
Abdus-Salaam, Stein and Fahey concur. Judge Pigott dissents in
an opinion.

Decided December 17, 2015




                                 - 4 -
