People v. Taylor
80 N.Y.2d 1, 598 N.E.2d 693, 586 N.Y.S.2d 545 (1992)
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Rule of Law:
For a memorandum of past recollection recorded, especially when observations are made by one person and transcribed by another, there must be some verification by the observer-sender that the recorded information accurately reflects their observations. The affirmative defense of renunciation to an attempted crime requires evidence that the abandonment of criminal purpose was both voluntary (not influenced by external factors) and complete (permanent, leading to the crime's avoidance by the defendant's actions).
Facts:
- On February 24, 1987, a man forced his way into Clara B.'s apartment in the Bronx and raped and sodomized her at gunpoint.
- On March 2, 1987, a man sexually abused and attempted to rape Elizabeth G. at knifepoint in her apartment, also in the Bronx.
- On March 10, 1987, Faye Lopez, daughter of one of Clara B.'s neighbors, saw and heard a man knocking at Clara B.'s door, asking for 'Cindy' (a fake name Clara B. had given the rapist).
- After no one answered, the man left and got into a car; Ms. Lopez saw the license plate number, wrote it down, and immediately called the police, giving the number to Detective Valentin.
- A computer check revealed that a vehicle with a similar plate number was registered to the defendant, who was arrested on March 13, 1987.
- Both Clara B. and Elizabeth G. identified the defendant as their attacker in separate police station lineups.
- During the attempted rape of Elizabeth G., she tried to dissuade her attacker by 'trying to make him believe that he could be [her] boyfriend' and suggested they 'go buy a bottle' to celebrate.
- When Elizabeth G. and the man stepped into the hallway, the man holding her arm, she slipped back through her apartment door, which closed and locked automatically behind her, and refused to let the man back in, calling the police.
Procedural Posture:
- A Grand Jury indicted the defendant for rape and sodomy of Clara B. and attempted rape and sexual abuse of Elizabeth G.
- Defendant was tried before a jury and convicted of these crimes.
- Defendant appealed his convictions to the Appellate Division (intermediate appellate court).
- The Appellate Division affirmed defendant's convictions, holding that the phone message with the license plate number was admissible as a past recollection recorded, that the trial court properly refused the renunciation charge, and that the admission of an uncertified automobile registration record was harmless error (174 AD2d 430).
- A Judge of the Court of Appeals granted defendant leave to appeal.
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Issue:
1. Does a police officer's phone message containing a license plate number, observed by one person and recorded by another who has no recollection of the event or verification from the observer, meet the requirements for admission as a past recollection recorded? 2. Did the trial court err in denying a jury charge on the affirmative defense of renunciation to attempted rape, where the evidence suggested the victim escaped rather than the defendant voluntarily and completely abandoning his criminal purpose?
Opinions:
Majority - Hancock, Jr., J.
1. No, the admission of the phone message containing the license plate number as a past recollection recorded was improper. For such a memorandum to be admitted, particularly when observed by one person and transcribed by another, there must be sufficient assurance that the record accurately represents the information observed and transmitted. Here, Ms. Lopez transmitted the number, but Detective Valentin had no recollection of taking the message or writing it down, only stating it was his habit to record messages accurately. There was no proof that Detective Valentin read the plate number back to Ms. Lopez for verification or that she had any knowledge of its accurate recording. Without some verification by the observer-sender, the record lacked sufficient assurances of accuracy and trustworthiness. This error, coupled with the erroneous admission of an uncertified copy of the defendant's car registration, was not harmless because these two items provided a critical link connecting the defendant to the crime. 2. No, the trial court correctly denied the defendant's request for a jury charge on the affirmative defense of renunciation. For the defense of renunciation to be effective, it must be shown that the crime was abandoned 'under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.' 'Voluntary' means a change of heart not influenced by outside circumstances (e.g., increased probability of detection or difficulty). 'Complete' means permanent abandonment, not temporary, and that the abandonment resulted in the avoidance of the crime. Here, while the defendant arguably stopped the sexual assault in response to the victim's intimations, there is no reasonable view of the proof that the abandonment was complete or that the crime was avoided by his abandoning the criminal effort. The victim's testimony indicated she ducked from under his arm and locked herself in her apartment while he was still holding her, and he subsequently tried to regain entry. This evidence strongly suggests the victim's escape, not the defendant's abandonment, prevented the crime.
Dissenting - Bellacosa, J.
1. Yes, the phone message containing the license plate number was properly admissible as a past recollection recorded. The past-recollection record exception allows for appropriately reliable written material. The combined testimony of Ms. Lopez (who saw, wrote, and immediately reported the number) and Detective Valentin (who recognized his handwriting and stated his habit of accurate recording) provided adequate assurance of the memorandum's accuracy, especially given the objective nature of license plate digits. The trial court's careful consideration and the Appellate Division's affirmance of the evidentiary ruling should be afforded deference. Requiring officers to recall every phone message from a witness after a year erects an 'unscaleable hurdle,' and the absence of a 'read back' for verification should affect only the weight of the evidence, not its admissibility. The majority's ruling creates an 'unnecessarily rigid formula.' 2. I concur with the majority that there was no reasonable view of the evidence entitling the defendant to a renunciation instruction for the attempted rape. The victim saved herself from the crime by outwitting the defendant, who did nothing to warrant any 'exculpatory escape hatch.' The majority's extended discussion of the renunciation defense is unnecessary to the disposition and appears to encourage speculation and inferences that the statutory affirmative defense may be more broadly available than intended by the Legislature.
Analysis:
This case clarifies the stringent foundational requirements for admitting a memorandum of past recollection recorded, particularly when an observation is conveyed by one person and recorded by another. It emphasizes the need for direct or indirect verification of the accuracy of the transcription by the original observer, moving beyond a mere habit of accuracy by the transcriber. Furthermore, the decision provides critical guidance on the affirmative defense of renunciation, establishing a high bar by requiring that the abandonment of criminal purpose be genuinely voluntary, complete, and the direct cause of the crime's avoidance, not merely a reaction to external factors or the victim's proactive escape. This ruling impacts evidentiary standards for police records and narrows the applicability of the renunciation defense, providing crucial clarity for future criminal prosecutions.
