This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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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

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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

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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

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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

1The majority of the Appellate Division so found, based upon

the investigator's direct testimony. 

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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

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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

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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

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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,

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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

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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 defendantrespondent's other contentions. 

Accordingly, the order of the Appellate Division should

be affirmed. 

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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

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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

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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. 

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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

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