
    The People of the State of New York, Appellant, v James Harding, Respondent.
    Argued February 17, 1975;
    decided June 9, 1975
    
      
      Eugene Gold, District Attorney (Robert C. Bernius of counsel), for appellant.
    I. The admission of the prior recorded testimony of Thelma Bodrick into evidence was a proper exercise of the trial court’s discretion. (People v Nisonoff, 293 NY 597; Mattox v United States, 156 US 237; Mancusi v Stubbs, 408 US 204; California v Green, 399 US 149; Barber v Page, 390 US 719; Dutton v Evans, 400 US 74; Healy v Rennert, 9 NY2d 202; Pointer v Texas, 380 US 400; Matter of White, 2 NY2d 309; People v Arnold, 34 NY2d 548.) II. The testimony of Thelma Bodrick was properly admissible into evidence as a declaration against her penal interest. (People v Brown, 26 NY2d 88; Bunge Corp. v Manufacturers Hanover Trust Co., 37 AD2d 409, 31 NY2d 223; United States v Harris, 403 US 573; People v Sullivan, 43 AD2d 55; People v Laino, 10 NY2d 161; People v Steuding, 6 NY2d 214; People v De Feo, 308 NY 595; People v Barcia, 37 AD2d 612, 30 NY2d 873; Livingston v Arnoux, 56 NY 507.) III. The admission into evidence of the testimony of Thelma Bodrick, if error, was harmless. (People v Kingston, 8 NY2d 384; Schneble v Florida, 405 US 427; Chapman v California, 386 US 18; Motes v United States, 178 US 458.)
    
      Stuart R. Shaw for respondent.
    The trial court committed reversible error when it admitted the testimony of a dead witness. (Fleury v Edwards, 14 NY2d 334; People v Sansanese, 17 NY2d 302; People v Maloney, 274 App Div 463; United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Stovall v Denno, 388 US 293; People v Brown, 26 NY2d 88; People v Harris, 31 AD2d 828; People v Sing, 242 NY 419; People v Purtell, 243 NY 273.)
   Wachtler, J.

In July, 1969 the defendant James Harding, then a lieutenant in the New York City Police Department, observed Thelma Bodrick, a numbers runner, in the act of taking a bet in Brooklyn. He stopped her and threatened her with arrest unless she would divulge the name of her "banker”. She identified Leroy Massey and the defendant then took her to a phone booth and told her to call Massey. After she placed the call the defendant took the phone and told Massey that he would arrest Bodrick unless Massey paid him to release her. Massey agreed and all three met at a prearranged location where Massey paid the defendant $200.

After this initial meeting Massey continued to pay the defendant for "protection” at the rate of $75 per month. This arrangement continued until February of 1970. In December of 1969 the defendant demanded a double payment "for the holidays”. Massey reluctantly made this payment but when the defendant made a similar demand in February, 1970 Massey complained to members of the Kings County District Attorney’s office. The next day Massey made his last payment to the defendant. This $75 payment was made with marked bills supplied by the investigators, and the complete transaction was recorded on equipment concealed by the authorities in Massey’s apartment. As the defendant left he was arrested and $75 in marked bills was found inside his left sleeve.

Departmental charges were filed against the defendant, and he was indicted as well for bribe receiving, grand larceny, and related offenses. Bodrick and Massey testified, and were cross-examined, at the departmental hearing but sometime prior to the trial on the indictment, Bodrick died. Nevertheless, over the defendant’s objection, her testimony from the police department hearing was read in evidence to the jury. Relying on our decision in Fleury v Edwards (14 NY2d 334) the trial court held that this evidence was admissible under the prior testimony exception to the hearsay rule. The jury found the defendant guilty of receiving unlawful gratuities (two counts), grand larceny in the third degree, promoting gambling in the second degree (two counts), official misconduct (two counts), conspiracy in the third degree (two counts), and conspiracy in the fourth degree.

The Appellate Division held that the admission of Bodrick’s testimony constituted reversible error (44 AD2d 700). There it was noted that CPL 670.10, the statute governing the use of prior testimony at criminal trials, did not provide for testimony taken at an administrative hearing.

On this appeal by the People, it is urged, as it was below, that this hearsay evidence (see Richardson, Evidence [10 ed], § 274; compare 5 Wigmore, Evidence, [3d ed], § 1370) was properly admitted under the prior testimony exception.

CPL 670.10 states:

"1. Under circumstances prescribed in this article, testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60 or upon a misdemeanor charge pursuant to section 170.75, or (c) an examination of such witness conditionally, conducted pursuant to article six hundred sixty, may, where otherwise admissible, be received and read into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court.

"2. The subsequent proceedings at which such testimony may be received in evidence consist of: (a) Any proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness’s testimony and to which such testimony related”.

Clearly this statute only permits the use of testimony previously taken in certain, specified criminal judicial proceedings. It does not, by its terms or by fair import, authorize the use of testimony previously recorded at civil administrative hearings. The People do not dispute this, but have taken the position that the statute is not exclusive. They rely on Fleury v Edwards (supra, p 338), in which we held that the statute permitting the use of prior testimony in civil cases (Civ Prac Act, § 348; now CPLR 4517) "is not intended to state the precise and only circumstance under which such use is permissible”. In our view there are two reasons why this cannot be said of CPL 670.10.

First the language and scheme of the two statutes are significantly different. The civil statute is a lengthy, broadly drafted one which, in general terms, permits the use of former testimony "together with exhibits and documents used in evidence” at a former "trial of an action * * * or hearing upon the merits of a special proceeding * * * of the same subject matter.” In Fleury the technical point was raised that since the statute referred to "special proceedings” the Legislature intended to exclude testimony taken at a motor vehicle hearing during which "Fleury and the present defendant were both represented by counsel and both Fleury and defendant’s wife (the driver of his car) were examined and cross-examined under oath” (p 336). Noting the broad reach of the statute, we concluded "there is no reason to believe that the Legislature was thus excluding proof taken judicially by bodies other than courts” (p 338). Here, however, we are presented with a statute containing three carefully worded and enumerated exceptions. The statute has been enlarged since its original enactment, but only marginally. The amendment merely authorized the use of testimony taken at a prior hearing "upon a misdemeanor charge pursuant to section 170.75” (see L 1971, ch 884, § 5). This is as far as the Legislature has gone in permitting the use of prior testimony at criminal trials. It does not demonstrate, or even suggest a general intention to carry over the rules applicable in civil trials. Thus we see no basis for concluding that the omission of any reference to administrative hearings was due to legislative oversight.

Secondly, the civil statute and CPL 670.10 are governed by different rules of construction. In criminal matters the courts must be more circumspect.

In short we agree with the Appellate Division that the trial court erred in relying on Fleury. But we do not agree that the error mandates a new trial.

Basically Bodrick’s testimony regarding the initial confrontation with the defendant, supplied little more than background material. Furthermore there were other spectators at this incident who testified at the trial so that, for the most part, Bodrick’s testimony was merely cumulative. Direct proof of the defendant’s criminal acts came from Massey and the officers who introduced the recordings of the final transaction as well as the marked bills taken from the defendant shortly thereafter. From these recordings the jury could hear the defendant demanding the monthly payment from Massey "$75, I’m not going to jack you up.” The defendant himself took the stand and admitted accepting money from Massey in January and February of 1970. However he testified that he had loaned the money initially so that Massey could renovate a bar and that the loan was being paid back in monthly installments. According to the defendant the reference to "jacking up” Massey simply meant that he was not going to use a black jack to collect his money and had nothing to do with increasing the monthly payments. On this record we have concluded that the admission of Bodrick’s testimony was harmless error.

In view of this disposition, we find it unnecessary to consider the alternate argument raised by the People for the first time on appeal, that the testimony might have been admissible at trial on the ground that it constituted a statement against penal interest.

Accordingly the order of the Appellate Division is reversed and the case is remitted to the Appellate Division to consider the appeal on the facts (CPL 470.40, subd 2, par [b]).

Cooke, J.

(concurring). I concur in the result and vote for reversal and for remittal to the Appellate Division to consider the appeal on the facts (CPL 470.40, subd 2, par [b]).

I agree with the majority that the testimony given at defendant’s police department disciplinary hearing by Thelma Bodrick, who died prior to trial, was not admissible under CPL 670.10. I disagree with the majority’s conclusion "that the admission of Bodrick’s testimony was harmless error.” It was not error, harmless or otherwise, to admit it, since it was properly receivable as a declaration against penal interest (People v Brown, 26 NY2d 88).

In Brown (supra), it was held that a declaration of a third person offered by defendant as a declaration against interest, in an effort to exculpate, was admissible. Brown having been decided as it was, there is no reason, logical or otherwise, why such proof, satisfying all necessary requirements of such a declaration, as here, should not be received when offered by the prosecution to incriminate defendant. (See People v Spriggs, 60 Cal 2d 868; Federal Rules of Evidence, rule 804, subd [b], par [3]; National Conference of Comrs. on Uniform State Laws, Uniform Rules of Evidence, rule 63, subd [10]; McCormick, Evidence [2d ed], § 278.)

In referring generally to the elements essential for this exception to the hearsay rule Dean Prince states: "In order that a declaration against interest may be received in evidence, it must appear that: 1. The declarant is unavailable; 2. The declaration when made was against the pecuniary, proprietary or penal interest of the declarant; 3. The declarant had competent knowledge of the facts; and 4. There was no probable motive to misrepresent the facts” (Richardson, Evidence [10th ed], § 257, pp 224-225; see, also, Fisch, New York Evidence, § 892).

The demise and consequent unavailability of the witness is not disputed. That Bodrick’s account at the departmental hearing was against her penal interest is obvious from an examination of the record. Among other things, she related that she picked up numbers, single action, for Leroy Massey in a policy operation; that in July, 1969, she was talking to a man and wrote a number on a piece of paper; that she was approached by defendant, a police lieutenant, and, being asked by him to remove the contents of her pocket, gave over a pad or policy slip with three numbers; that her instructions were that she was to get in touch with Massey if she got picked up by a policeman; that she was anxious to be let out of the police car and followed defendant’s directions and called Massey, whereupon defendant removed the phone from her hand; that defendant said they were supposed to go to Cambridge and Fulton and when they arrived, Massey was there and that she observed Massey hand money to the defendant; and that the witness was then released and not arrested. Thus, Thelma Bodrick, by her statements indicating that she was a policy runner and that she took at least one bet on the day in question, implicated herself in violation of article 225 of the Penal Law, entitled gambling offenses.

The witness had competent knowledge of the facts about which she testified since the evidence elicited from her concerned her own direct observations (5 Wigmore, Evidence [3d ed], § 1471; 31A CJS, Evidence, § 220). Furthermore, the circumstances shown justify the conclusion that there was no probable motive to falsify the facts declared (Richardson, Evidence [Prince — 10th ed], § 262). The witness related that she did not know defendant prior to the day in question and defendant denied ever seeing her prior to the police department trial. Neither was there any evidence that she was given any promises or inducements by the prosecution in exchange for her proof (see United States v Harris, 403 US 573, 583-584).

It was the declarant’s awareness at the time of making the statement that her declaration was against her penal interest that furnishes the circumstantial probability of its trustworthiness (Richardson, Evidence [Prince — 10th ed], §263; cf. Chambers v Mississippi, 410 US 284, 302; People v Wolzer, 41 AD2d 679, 680-681). Bodrick had been told in effect by none other than defendant that her acts, as revealed in her statement, rendered her subject to criminal prosecution (see People v Riccardi, 73 Misc 2d 19, 23, affd 40 AD2d 1083, cert den 414 US 827).

Further support for the introduction of the Bodrick declaration is found in the preliminary evidence at trial showing a connection between the declarant and the events mentioned in her statement (see Richardson, Evidence [Prince — 10th ed], § 260; People v Riccardi, supra, p 22; cf. People v Muniz, 40 AD2d 985). Massey testified inter alia: that in 1969 he was a single action policy banker; that Thelma Bodrick was one of the runners; that in July of that year he received a phone call from Thelma; that defendant came on the line and stated he had Massey’s girl and that if Massey did not straighten things out she would be arrested; that Massey then met defendant at Cambridge Place and Fulton Street, Thelma also being there; and that he, Massey, gave defendant $100. There was considerable other connecting and corroborating testimony introduced during trial, subsequent to the proof concerning the statement of the witness.

Since the declarant was subjected, under oath, to extensive cross-examination at the hearing by defendant and later by his attorney, the testimony in question, in any event, would not be precluded by the confrontation clause of the Constitutions (see Richardson, Evidence [Prince — 10th ed], § 260; see, also, 5 Wigmore, Evidence [3d ed], §§ 1361, 1362; Richardson, Evidence [Prince — 10th ed], §§ 201, 488).

On trial, the admissibility of the Bodrick testimony was questioned and ruled upon. In passing upon that admissibility on appeal, the declaration against interest basis may be considered, since ”[i]n our review we are confined to the questions raised or argued at the trial but not to the arguments there presented” (Persky v Bank of Amer. Nat. Assn., 261 NY 212, 218; Cohen and Karger, Powers of the New York Court of Appeals, pp 625-627; see Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L Rev 477, 479-480).

Judges Gabrielli, Jones and Fuchsberg concur with Judge Wachtler; Judge Cooke concurs in result in a separate opinion in which Chief Judge Breitel and Judge Jasen concur.

Order reversed and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.  