People v. Arroyo, 54 N.Y.2d 567 (1982)

Prior testimony of an unavailable witness is admissible at trial if the prosecution demonstrates due diligence in attempting to locate the witness and the prior testimony bears sufficient indicia of reliability, including an opportunity for cross-examination.

Summary

Arroyo was convicted of assault based on the prior preliminary hearing testimony of the victim, his estranged common-law wife, who disappeared before trial. The New York Court of Appeals affirmed the conviction, holding that the prosecution had demonstrated due diligence in attempting to locate the witness and that the prior testimony was reliable because Arroyo was present at the preliminary hearing, represented by counsel, and had the opportunity to cross-examine the witness. The court emphasized that the right to confrontation is not absolute and that prior testimony can be admissible if it bears sufficient indicia of reliability.

Facts

Arroyo was charged with assault for allegedly stabbing his estranged common-law wife. The victim testified at a preliminary hearing. Prior to trial, the victim disappeared. The prosecution asserted diligent efforts were made to locate her. The prosecution’s case rested largely on the victim’s preliminary hearing testimony, along with police officer and hospital personnel testimony regarding the assault’s circumstances.

Procedural History

The trial court ruled the victim’s preliminary hearing testimony admissible, with redactions. Arroyo was convicted of second-degree assault. The Appellate Division affirmed the conviction. Arroyo appealed to the New York Court of Appeals, arguing that the admission of the prior testimony violated his right to confrontation.

Issue(s)

1. Whether the prosecution exercised “due diligence” in attempting to locate the missing witness, as required by CPL 670.10, to justify the admission of her preliminary hearing testimony.
2. Whether the preliminary hearing provided a sufficient opportunity for cross-examination to satisfy confrontation clause requirements, thereby allowing the introduction of the witness’s testimony at trial.

Holding

1. Yes, because the prosecution made reasonable efforts to locate the witness, including contacting her, visiting her apartment, and checking with various agencies and individuals, leading the trial court to conclude she was intentionally hiding.
2. Yes, because Arroyo was present at the preliminary hearing, represented by counsel, and had the opportunity to cross-examine the witness; the court found no meaningful frustration of that right.

Court’s Reasoning

The Court of Appeals emphasized the importance of a defendant’s right to confront adverse witnesses, including the opportunity for cross-examination. However, this right is not absolute. Prior testimony can be admissible if the witness is unavailable and the testimony bears sufficient indicia of reliability. The court stated that the prosecution must demonstrate “due diligence” in attempting to locate the witness, showing that their failure to produce her was not due to indifference or strategic preference. The court reviewed the trial court’s factual finding that the prosecution exercised due diligence, noting the various steps taken to locate the witness, including phone calls, visits to her apartment, and inquiries with neighbors and agencies. The court found this determination was supported by the evidence. Regarding reliability, the court noted the solemnity of the preliminary hearing, the witness’s testimony under oath, and Arroyo’s opportunity for cross-examination. The court rejected Arroyo’s argument that the preliminary hearing was too limited for effective cross-examination, stating that a “fair opportunity” to cross-examine is sufficient. The court also rejected Arroyo’s claim that he should have been allowed to withdraw his counsel’s cross-examination, stating that the testimony, once given, becomes an integral part of the record. The court stated, “the constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial; but to protect him against ex parte affidavits and depositions taken in his absence.” The court concluded that the victim’s prior testimony was sufficiently reliable to support Arroyo’s conviction, despite the fact that the People’s case depended on the prior statement, cautioning that “there may be instances in which, though the circumstances surrounding prior testimony have rendered it admissible, in the context of the entire case as it develops, the prior testimony, by itself, will be found insufficient to support a guilty verdict beyond a reasonable doubt.”