Panel Finds Statement Against Interest Key to Defense

, New York Law Journal

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A divided state appeals panel has ordered a new trial for a man convicted of drunken driving, ruling that the trial judge should have admitted a hearsay statement from a 19-year-old woman without a driver's license who told an investigator that she was actually the one driving the car because the statement was an admission against her penal interest.

The 3-2 Appellate Division, First Department, panel ruled Tuesday in People v. Soto, 43587C/10, that the man, city bus driver Victor Soto, was denied a fair trial because Bronx Supreme Court Justice Megan Tallmer did not allow the hearsay statement.

Justice Rolando Acosta (See Profile) wrote for the majority, joined by justices David Saxe (See Profile) and Helen Freedman (See Profile).

Justice Darcel Clark (See Profile) dissented, joined by Justice Angela Mazzarelli (See Profile).

Soto was charged with driving while intoxicated following an accident in July 2010. A key witness for the prosecution, Peter Batista, testified that he was sitting on his porch around midnight and saw a black Nissan drive by several times. Batista said that he saw Soto driving the car alone on his second or third pass by his house. Following his fourth pass, Batista testified, Soto crashed into a parked car further down the block.

Batista said he then approached the car, never losing sight of it, and found Soto alone in the driver's seat with the radio turned up, dancing in his seat. He then called 911.

Police came about 10 minutes later. They did a breath test, which showed a blood alcohol level of .22. They also did a coordination test, during which Soto said that he "started drinking when [he] got lost" and that he "couldn't drive for shit." The test was videotaped and played for the jury.

About two weeks after the accident, Janny Hunt, 19, told an investigator that she had in fact been driving the car. She said that she had met Soto in a bus that Soto was driving, and had agreed to meet him that night at a diner. She said she agreed to drive so he could drink, though she had only a learner's permit. After hitting the parked car, she said, she fled the scene.

About two weeks later, Hunt said, she saw Soto on a bus again. He told her that he had been charged with drunken driving and asked her to set the record straight, and she agreed, Hunt said.

When Soto's counsel said it would call Hunt as a witness, the court appointed an attorney for her. Hunt then invoked her Fifth Amendment right against self-incrimination.

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