Opinion
08-3463/3464.
Decided August 21, 2009.
Westchester County District Attorney, Mount Vernon branch, Barry Jay Swiersky, Attorney for Defendant, White Plains, New York.
The defendant, having been tried by jury and found guilty on the charges of Assault in the Third Degree (P.L. 120.00(1)) and Harassment in the Second Degree (P.L. 240.26 (1)), now moves to set aside the verdict. The People oppose the motion.
The defendant's motion is premised on the grounds that the Court 1) improperly denied defendant's application for missing witness charges as to two witnesses with knowledge of the incident, 2) improperly allowed the People to cross-examine defendant about his prior arrest charges, and 3) improperly allowed the People to characterize defendant as a "liar" during cross-examination and summation.
First, the defendant argues that this court committed error in denying his requests for missing witness charges as to the People's failure to call their witnesses: two people who were present during the assault on the complainant, namely the defendant's wife, Patricia Nelson, and Donna Calhoun a/k/a "Rabbit". It is well settled that the mere failure of the People to produce a witness at trial, standing alone, is insufficient to justify a missing witness charge ( People v Rizzo, 175 AD2d 221 (2d Dept 1991) (citing People v Gonzalez, 68 NY2d 424 (1986)). Despite defendant's claims that the uncalled witnesses were knowledgeable about a material issue upon which evidence was already in the case, the Court held that neither of the two eyewitnesses would provide non-cumulative testimony to that of the other testifying eyewitnesses in this matter, namely the complainant and prosecution witness Jeanette Blount ( People v Gonzalez, supra 424, 427). Even where the party requesting a missing witness charge establishes prima facie that the witness is knowledgeable and can be expected to testify favorably to the party that did not call him, the request is properly denied where the party opposing the charge demonstrates, inter alia, that the witness' testimony would be merely cumulative ( Id. at 427-428; see People v Rivera, 249 AD2d 141 (1st Dept 1998) (holding trial court's denial of defendant's request for missing witness charge as to third eyewitness in robbery was proper because witness would provide cumulative testimony); People v Nieves, 124 AD2d 603 (2d Dept 1986) (trial court granting of missing witness charge as to defendant's wife reversible error where her testimony would have added nothing material to testimony of other two alibi witnesses); People v Trichilo, 230 Ad2d 926 (3d Dept 1996)) (eyewitness' testimony would have been cumulative and trial court's refusal to give missing witness charge was proper)).
Based on the foregoing, the Court adheres to its ruling that the People adequately demonstrated that the testimony of Patricia Nelson and Donna Calhoun a/k/a "Rabbitt" would have been cumulative and that no missing witness charges were warranted. Accordingly, the verdict shall not be set aside for failure to give missing witness charges.
Next, defendant argues that the Court committed error by allowing the People to cross-examine the defendant about his prior arrests, whether or not they resulted in convictions. While it lies within the discretion of the trial court to permit cross-examination of a defendant regarding his prior convictions as bearing on his veracity, the trial court must weigh other factors such as the tendency of a jury to convict for the past criminal record rather than the crime charged ( People v Williams, 56 NY2d 236 (1982); People v Sandoval, 34 NY2d). The Court has had occasion to review the transcript from the Sandoval hearing. Contrary to defendant's assertion, this Court did not permit the People to delve into any and all arrests, but limited their cross-examination to arrests for which defendant was ultimately convicted of a crime. Further, the Court limited the scope of questioning and number of convictions that defendant could be confronted with on cross-examination. The Court permitted questioning as to convictions that went to the credibility of the defendant, including the bail jumping and obstruction of governmental administration convictions. The Court limited the cross-examination concerning the criminal contempt in the first degree and criminal sale of a controlled substance arrests, which ultimately resulted in convictions. The Court precluded the People from going into the details of the attempted petit larceny conviction. Defendant points to no specific instance where the Court allowed the People to cross-examine defendant as to an arrest that did not result in a conviction.
Based on the foregoing, defendant's motion to set aside the verdict on the basis that the Court allowed the People to cross-examine defendant about his arrest charges is denied.
Finally, defendant argues that the Court erred in permitting the People to characterize the defendant as a "liar" during cross-examination and summation, thus denying him a fair jury trial and necessitating a set aside of the verdict. Defendant specifically points to the People's cross-examination of defendant as to his having lied to a court by failing to return for an appearance when required, and to the People's summation, wherein the People characterized him as a "liar" for doing so.
Although the prosecutor's isolated comment during cross-examination and summation in referring to the defendant as a liar may have been improper, in light of the overwhelming evidence of guilt, they clearly do not rise to the level of misconduct requiring a set aside of the conviction and did not deprive the defendant of his right to a fair trial ( see People v Bronson, 32 NY2d 254 (1973). In People v Bronson, in an outrageously inflammatory summation, the prosecutor characterized the defendant as a "liar, an animal, a beast." There the Court of Appeals characterized the summation as "largely argument by epithet rather than by logic" (p. 261). With it all, the court sustained the assault in the second degree conviction and observed, "The District Attorney accepts the criticism that the summation was improper, but, on any view, it was hardly of sufficient forcefulness to influence the jury in the light of overwhelming evidence and the stark facts of the brutal, irrational crime committed" (p. 262). The court concluded, "In this case, it is at most only arguable that the prosecutor's misconduct could have produced a greater adverse effect on the jury then did the bizarre facts of the crime, and the overwhelming evidence of culpability" ( Id. at 262; see also, People v Cunningham, 222 AD2d 727 (3d Dept) (summation characterizing defendant as liar improper, but in view of the overwhelming proof of guilt, the errors were deemed harmless); People v Guerrero, 217 AD2d 411 (1st Dept 1995) (summation characterizing defendant's testimony as "fairy tale" was responsive and constituted fair comment on evidence presented). Moreover, this Court's general instructions at the beginning and conclusion of the trial, specifically wherein the Court advised the jurors that "statements, arguments and questions by the lawyers are not evidence", further eliminates the possibility of prejudice to the defendant ( People v Bayer, 302 AD2d 602 (2d Dept 2003)
In light of the foregoing, defendant's motion to set aside the verdict is denied.
This constitutes the Decision and Order of this Court.