People v. De Tore, 34 N.Y.2d 16 (1974)
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A witness’s recanted testimony can be sufficient to sustain a conviction if the jury is presented with a reasonable explanation for the change, and a prosecutor’s failure to produce a witness mentioned in their opening statement does not automatically warrant a mistrial absent bad faith or undue prejudice.
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Summary
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Defendants De Tore and Wedra were convicted of murder. De Tore allegedly arranged for Wedra, through an intermediary named Gasperino, to kill his wife. The key issues on appeal were the sufficiency of the evidence against Wedra, largely based on a recanting witness, and the prosecutor’s failure to call Gasperino as a witness after mentioning him in the opening statement. The Court of Appeals affirmed the convictions, holding that the jury could reasonably credit the recanting witness’s ultimate testimony and that the failure to produce Gasperino did not require a mistrial, especially since no mistrial motion was made. The court also addressed and rejected De Tore’s arguments regarding the admissibility of his confession.
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Facts
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De Tore’s wife was found murdered in their home. De Tore was involved with another woman and had promised to marry her. He confessed to arranging for Gasperino to have his wife killed for $9,000. Gasperino allegedly hired Wedra to commit the murder. Wedra was connected to the crime primarily through the testimony of La Spina, a fellow inmate, who initially denied Wedra’s involvement but later claimed Wedra confessed to the murder. Wedra’s car was seen near the victim’s house shortly before the murder. Gasperino, who was expected to be a key witness, invoked his Fifth Amendment right and did not testify.
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Procedural History
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De Tore and Wedra were convicted of murder in the trial court. They appealed, arguing insufficient evidence and prosecutorial misconduct due to the failure to produce Gasperino. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.
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Issue(s)
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1. Whether the recanted testimony of La Spina was sufficient to establish Wedra’s guilt beyond a reasonable doubt?
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2. Whether the prosecutor’s failure to call Gasperino as a witness, after mentioning his testimony in the opening statement, warranted a mistrial?
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3. Whether De Tore’s confession was admissible, given the extended period of questioning before his arrest?
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Holding
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1. Yes, because the jury was presented with a reasonable basis to explain the change in La Spina’s testimony.
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2. No, because the failure to produce Gasperino did not constitute bad faith or undue prejudice, and the defense did not move for a mistrial.
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3. Yes, because De Tore was not in custody during the extended questioning, and he was given appropriate admonitions regarding his rights.
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Court’s Reasoning
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The Court reasoned that the jury was entitled to assess La Spina’s credibility, even though he had recanted his initial denial of Wedra’s confession. La Spina explained that he had been threatened, giving the jury a reason to believe his later testimony. The Court distinguished this case from People v. Ledwon, where there was no reliable basis to explain the shifting testimony. Here, “there was the one substantial recantation with the witness explaining his reasons for the change, reasons that the jury was entitled to accept or reject.”
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Regarding the prosecutor’s failure to call Gasperino, the Court emphasized that