Opinion
233-2012
09-16-2013
People of the State New of New York v. Paul Novak, Defendant.
Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant Hon. James R. Farrell Sullivan County District Attorney Attorney for the People Stephen F. Lungen, Esq. Special Prosecutor, Attorney for the People
Gary Greenwald, Esq.
Greenwald Law Offices
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
Attorney for the People
Stephen F. Lungen, Esq.
Special Prosecutor, Attorney for the People
Frank J. Labuda, J.
In the sixth week of jury trial, this matter is before the Court on the People's application to preclude the defense from calling a local attorney, Glenn Kroll, Esq., to testify about statements made by the People's witness, Elise Hanlon, during a conversation amongst Ms. Hanlon, Attorney Kroll (co-Defendant, Scott Sherwood's initial attorney), and Gary Greenwald, Esq., Defendant Novak's attorney. Defendant has submitted written opposition.
Glenn Kroll, Esq., has offices in Bloomingburg, New York. He had initially represented Novak's co-defendant, Scott Sherwood, on the charges of murder in the second degree and appeared with the witness, Elise Hanlon, Sherwood's wife, at a conference with the District Attorney before her Grand Jury testimony.
The People argue Defendant wants to call Attorney Kroll as a defense witness for the sole purpose of impeaching Ms. Hanlon's testimony. The People argue that the proffered testimony of Attorney Kroll relates to a collateral matter of credibility regarding whether or not she had a conversation with Defendant Novak regarding the homicide of Catherine Novak, and therefore, pursuant to various Appellate Division decisions, must be precluded as a matter of law.
Ms. Hanlon testified at trial on the People's direct examination that Defendant, Paul Novak, told her, in casual conversation, he murdered his wife. Defendant contends, however, that when defense counsel Gary Greenwald interviewed Ms. Hanlon, with Attorney Kroll's consent, Ms. Hanlon indicated on the phone that was not the case and she only heard about the allegations from Michelle LaFrance, Novak's ex-girlfriend, who testified earlier in the trial for the People. According to the defense, Ms. Hanlon indicated she was afraid of being charged with perjury and also expressed her concern to Attorney Kroll.
At trial, defense counsel cross-examined Ms. Hanlon at length. Defendant argues that to categorize Attorney Kroll's expected testimony as only being used for impeaching Ms. Hanlon's testimony and therefore collateral is in error. Defendant argues that the testimony goes to the issue of whether Novak committed and confessed to the alleged murder, and is therefore a direct issue.
It is well established law that evidence solely affecting the credibility of a witness may not be obtained from calling other witnesses or producing documentary evidence to contradict the witness. See, People v. Duncan, 13 NY2d 37 [1963]; see also, People v. Pavao, 59 NY2d 282, 288 [1983]. Evidence suggesting a victim's claim she did not confront a defendant about the charged crime has been excluded as collateral. People v. Diaz, 209 AD2d 632 [2nd Dept. 1994].
[The] court properly exercised its discretion in refusing to permit the defendant to call a witness that would have contradicted the victim's denial that she confronted the defendant seven months after her chain was stolen and asked for its return. A party who is cross examining a witness cannot introduce extrinsic evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. [Citations omitted]. Id., at 633.
In a situation similar to the case at bar, the First Department held that where the People's witness admitted she had made a prior inconsistent statement during a taped interview with defense counsel, defense counsel was precluded from calling any witnesses to controvert the witness' trial testimony on that issue. People v. Cintron, 173 AD2d 277 [1st Dept. 1991].The Cintron Court stated:
On direct examination, the complaining witness acknowledged that she had given a prior inconsistent statement during a taped interview at defense counsel's office. She explained the inconsistency as the result of conversations with defendant, whom she married while in jail prior to trial, in an effort to assist him. On cross-examination, counsel pressed the witness by repeatedly asking whether he had encouraged her to lie before the taped interview. Finally, she admitted that counsel had encouraged her to lie. The record shows that it was counsel himself who injected his integrity into the proceedings....The complaining witness' motive to fabricate during the taped interview was a collateral matter, with no independent relevance and no bearing upon any material aspect of her direct testimony. Id., at 277-278.
In the case at bar, Ms. Hanlon's motive to fabricate a lack of recollection during a time when her husband was still a co-defendant and his defense was intertwined with that of Novak, at the suggestion of counsel for Novak, is the same collateral issue upon which an impeachment witness was precluded in Citron, supra. The proffered testimony of Attorney Kroll offers nothing to establish whether Novak did or did not make the "confession" to which Ms. Hanlon previously testified. Instead, it affects only Ms. Hanlon's credibility, and therefore it was for defense counsel to pursue his impeachment of Ms. Hanlon on cross-examination, which he did at length, concerning her conversations at defense counsel's office and with Mr. Kroll by telephone.
Ms. Hanlon's husband is Scott Sherwood, the indicted co-defendant who struck a plea bargain with the prosecutor prior to jury selection for a Class E felony of Conspiracy and a three to 12 years sentence in state prison.
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Based on the foregoing, the proffered testimony of the witness' attorney is precluded as a matter of law, because it relates to a collateral issue as discussed in Cintron, supra.
This shall constitute the Decision and Order of this Court.
DATED:September 16, 2013
Monticello, New York
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Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate