Testilying detective’s conviction affirmed but sentence reduced

In People v. Perino (1st Dept. 8/17/2010), after a bench trial, the trial court convicted the defendant, a former NYPD detective in the Bronx, of three counts of Perjury 1° and one count of Perjury 3°.  The trial court sentenced the Defendant to four months' imprisonment concurrent with five years of probation.  The First Department unanimously modified two of the Perjury 1° convictions to Perjury 3° and in the interest of justice reduced the term of imprisonment from four months to two.

The defendant was a veteran of the NYPD when he arrested Erik Crespo for a 2005 shooting and brought him in for questioning.  Crespo was not read his Miranda rights, yet the defendant questioned him for about eighty minutes.  Crespo secretly recorded the entire interrogation on his MP3 player.  At a pre-trial hearing for the case against Crespo, the detective falsely testified that he did not interrogate Crespo.  During Crespo's trial, the detective testified on direct examination that he did not interrogate Crespo.  The detective repeatedly made false statements cross examination about his interactions with Crespo.  At the conclusion of cross examination, Crespo's attorney had a transcript of the interrogation marked for identification and informed the trial court of its origins.  Upon returning from a recess, the People offered Crespo a more favorable plea of CPW 2° with a sentence of seven years instead of attempted murder with a sentence of fifteen years.  Crespo accepted.

The defendant was subsequently indicted on twelve counts of Perjury 1° and then convicted at a non-jury trial of three counts of Perjury 1° and one count of Perjury 3° with a sentence of four months' imprisonment concurrent with five years of probation. The case stirred sentiment about police corruptionoverworked detectives, and recently influenced a pension bill designed to preserve funds despite the conduct of the retiree.

On appeal the Defendant argued that the three false statements for which he was convicted of Perjury 1° were not sufficient to support the convictions. Penal Law § 210.15 sets forth that Perjury 1°, a class D felony, requires that the false statements made were "material to the action, proceeding or matter in which [they were] made."  In contrast, Penal Law § 210.05 sets forth that materiality is not an element of Perjury 3°, a Class A misdemeanor.  The First Department followed the framework of analysis set forth in People v Davis, 53 NY2d 164 (1981), for determining materiality of perjured testimony.  The court considered the hypothetical effect the Defendant's false statements could have had on the jury, but found the effect on the People's plea offer more indicative of materiality.  On two of the Perjury 1° convictions, the court determined that the statements were too narrow in scope and unrelated to satisfy the materiality threshold.  Thus, the court  reduced those two convictions to Perjury 3°.  Finally, the court found the sentence excessive given the modified convictions and used its discretion to reduce it in the interest of justice.  (MM/LC)

 

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