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Issues In NY Criminal Law--Vol. 2, #2©

ISSUE: May a defendant's testimony from an administrative hearing be introduced at a criminal trial?

A PERSON who is accused of a crime may also face civil suit or administrative hearing as well. Testimony that a defendant gives in such a forum may become evidence that is offered against the defendant at a criminal trial. Handling a Criminal Case in New York, sec. 18:176. To what extent may these statements be used?

Generally, such statements are admissible. This includes statements made:
· at a DMV hearing
· parole revocation hearing, People v. Van Skiver, 111 AD2d 1032, 491 NYS2d 191 (3d Dept 1985)
· probation revocation hearing
· UIB hearing
· school suspension hearings
· civil lawsuits
· Family Court proceedings, People v. Cassels, 260 AD2d 392, 687 NYS2d 681 (2d Dept 1999).

In such proceedings, while a defendant may not be compelled to testify, a negative inference may be drawn from the failure to testify. Matter of Jenny N., 262 AD2d 951, 692 NYS2d 554 (4th Dept 1999) (Family Court proceeding); Walden Marine Inc. v. Walden, 266 AD2d 933, 698 NYS2d 185 (4th Dept 1999).

A defendant facing more than one forum may seek to have the civil proceeding stayed. See People v. Zimmer, 166 Misc2d 256, 632 NYS2d 945 (Sup Ct 1995); Muldoon, "Collateral Effects of a Criminal Conviction," NYS Bar Journal July /August 1998, p. 26. However, a court may decline the stay application. Walden Marine Inc v. Walden, supra.

THERE are a few areas where a defendant's statements are inadmissible in the criminal proceeding. Under Garrity v. New Jersey, where an employee faces imminent loss of employment, statements made in a disciplinary proceeding are inadmissible. 385 US 493, 87 S Ct 616, 17 L Ed 2d 562 (1967).

Similarly, a defendant's statements made in a prison disciplinary proceeding are inadmissible. People v. Nunez-Ramos, 160 AD2d 1029, 554 NYS2d 947 (2d Dept 1990); 7 NYCRR 251-3.1a.

Statements made to a mediator, in an alternative dispute resolution setting, are inadmissible in a criminal proceeding. Judiciary Law, sec. 849-b; People v. Snyder, 129 Misc2d 137, 492 NYS2d 890 (Sup Ct 1985).

Finally, CPL 60.46 applies to statements made in a Family Offense proceeding. Such statements made without benefit of counsel are inadmissible unless a defendant specifically waives the right to counsel.

Statements made by a defendant in pretrial hearings (e.g., suppression, Sandoval), involving the same criminal proceeding, are inadmissible at trial. Simmons v. US, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1967); Handling, supra, 11:55. However, a defendant's testimony at preliminary hearing or grand jury is admissible on the people's direct case. Handling, supra, 6:55, 5:30, 18:176.

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