author: Gabrielli, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Joseph Santarelli, Appellant.
    Argued December 12, 1979;
    decided January 15, 1980

      POINTS OF COUNSEL

      Harold J. Boreanaz for appellant.
    Evidence of alleged prior criminal conduct of defendant was unnecessary, improper and highly prejudicial and denied appellant his constitutional right to a fair trial. (People v Molineux, 168 NY 264; People v Vails, 43 NY2d 364; People v Fiore, 34 NY2d 81; People v Schwartzman, 24 NY2d 241; People v Reingold, 44 AD2d 191; People v Sandoval, 34 NY2d 371; People v Duffy, 36 NY2d 258.)

      Patrick D. Monserrate, District Attorney (Patrick H. Mathews of counsel), for respondent.
    Evidence of defendant’s assaultive and criminal conduct and his association with the FBI and organized crime was admissible as medically relevant and critically probative with regard to rebutting the insanity defense. (People v Miller, 57 AD2d 668; People v Vails, 43 NY2d 364; People v Jackson, 39 NY2d 64; People v McKinney, 24 NY2d 180; People v Molineux, 168 NY 264; People v Silver, 33 NY2d 475; People v Wood, 12 NY2d 69; People v Calvano, 30 NY2d 199; People v Barber, 115 NY 475; People v Horton, 308 NY 1.)
   OPINION OF THE COURT

Gabrielli, J.

On the morning of August 24, 1975, the defendant shot and killed his brother-in-law, Joseph Foti, by firing five shotgun blasts at him, two of which proved to be fatal. There was no apparent motive for the killing; in fact, the evidence indicated that the victim and defendant had enjoyed a very close and warm relationship over the years. Following a protracted trial, defendant was convicted of having committed murder in the second degree (Penal Law, § 125.25, subd 1) by shooting his brother-in-law with a sawed-off shotgun. At his jury trial, defendant acknowledged having committed the acts charged in the indictment, but contended that his conduct should be excused because he was legally insane at the time of the alleged crime and, consequently, could not be held criminally responsible for his actions (see Penal Law, § 30.05). The People, in an effort to rebut this claim, sought to establish that the shooting was merely a product of defendant’s "explosive personality”, a character trait not rising to the level of legal insanity. To this end, the District Attorney offered proof through the testimony of witnesses that defendant had committed a number of unprovoked, violent acts, unconnected with his brother-in-law, prior to the shooting. It is the trial court’s ruling permitting the use of all of this testimony that forms the basis of the present controversy.

The People’s direct case at trial consisted solely of testimony by several police officers, each of whom described the circumstances surrounding the shooting. Lieutenant Fusco, a criminologist, explained that the dwelling in which the shooting occurred was divided into two apartments which were separated by a staircase and a doorway. Defendant and his wife occupied the upper apartment, while the defendant’s in-laws occupied the floor below. On the basis of information derived from the autopsy and from the position of the bullet holes in the woodwork, Lieutenant Fusco was able to conclude that the victim, Joseph Foti, had been standing on the lower landing of the staircase leading to defendant’s apartment when he was struck by gun discharges fired from above. After the first shot was fired, according to Lieutenant Fusco, the victim had enough strength to exit the building through the lower apartment in a vain attempt to effect an escape via the driveway. It was at this point, Lieutenant Fusco stated, that Foti was struck by the fatal shots, which were fired from a second-floor patio connected to defendant’s apartment. Defendant was apprehended shortly after the shooting and promptly acknowledged his responsibility for his brother-in-law’s death.

Following the close of the People’s direct case, defendant called a number of lay and expert witnesses in an effort to demonstrate that the shooting was the product of a "paranoid delusion” which caused him to believe that his brother-in-law was trying to kill him and that immediate defensive action was necessary to ward off an imminent attack. Several acquaintances of defendant were called to attest to the fact that defendant appeared distracted and unusually tense in the days immediately preceding the shooting. Defendant’s sister and several other relatives confirmed these observations and further noted that defendant’s attack on his brother-in-law was particularly uncharacteristic, since the two men had always enjoyed a very close and warm relationship. Nola Santarelli, defendant’s wife, testified that in the weeks preceding the killing, her husband had become increasingly disturbed as a result of efforts by members of the FBI to convince him to become a witness in a criminal action on the government’s behalf. Defendant had been especially unnerved, according to Mrs. Santarelli, when his close friend, Vincent Christina, also tried to persuade him to become a witness for the government.

Testimony concerning the events of the day of the shooting was supplied by Mrs. Santarelli, defendant’s father and the victim’s widow. All three testified that on the morning of the day in question, defendant had had a violent argument with his wife in which he accused her of working with the FBI. Mrs. Santarelli fled from the couple’s apartment as a result of the quarrel, and defendant’s brother-in-law, Joseph Foti, was called in to act as a peacemaker. Defendant immediately indicated his desire not to speak with Foti, but Foti persisted in pursuing the conversation. Finally, when Foti attempted to follow defendant into the latter’s apartment, defendant opened his apartment door and fired upon his brother-in-law.

To support his contention that his acts had been the product of a "paranoid delusion”, defendant also called to the stand two expert witnesses who were familiar with his background. On direct examination, both psychiatrists stated their professional beliefs that defendant had been in a psychotic state aggravated by amphetamine abuse when he shot his brother-in-law and that, at the time of the crime, he lacked substantial capacity to apprehend the nature and consequences of his acts or that, his conduct was wrong (see Penal Law, § 30.05). Upon cross-examination of defendant’s expert witnesses, however, the District Attorney attempted to establish that defendant’s conduct also could be explained as a symptom of a "personality disorder” commonly termed an "explosive personality”. He elicited through questioning that an individual suffering from such a disorder would probably have a history of violent, antisocial conduct and would have a tendency to react with disproportionate violence in the face of relatively mild provocation. Moreover, the psychiatrists stated, although an individual with a "personality disorder” will often exhibit poor impulse control, especially when placed under stress, such an individual is generally considered to be in touch with reality and cannot be classified as legally insane within the meaning of section 30.05 of the Penal Law.

Having thus established the medical and legal significance of the term "explosive personality”, the prosecutor then attempted to demonstrate that defendant was suffering from that condition rather than from the more serious condition of "delusional psychosis” and that, consequently, his conduct in shooting his brother-in-law could not be legally excused. By using the technique of hypothetical questioning, the District Attorney initially elicited from the expert witnesses that the shooting could be considered symptomatic of an "explosive personality” if it were assumed that the actor had committed certain specific acts of violence in the past and it were further assumed that he was laboring under considerable emotional stress at the time of the crime. The prosecutor then offered to prove through witnesses that defendant had, in fact, committed a number of irrational, violent acts in his past and that his tendency to react with violence had been exacerbated by the pressure that was being placed upon him in the weeks preceding the shooting as a result of his involvement with organized crime.

Defense counsel promptly objected to the admission of such proof on the ground that it would be highly prejudicial and would be probative only of defendant’s propensity to commit violent crimes. Arguing that the evidence was not relevant to any material element of the People’s case, defendant took the position that it should be excluded under the standards articulated in People v Goldstein (295 NY 61) and People v Moli neux (168 NY 264). The trial court, however, rejected defense counsel’s argument and permitted the prosecutor to proceed with his rebuttal witnesses, while granting defendant a "continuing objection”. Santarelli ultimately was convicted of murder in the second degree, and his conviction was affirmed by the Appellate Division. Noting that the challenged evidence "carried little potential for prejudice in this case”, the Appellate Division upheld the trial court’s ruling on the basis of what it perceived to be a "general rule” that once a defendant asserts the insanity defense, "any and all prior conduct of the accused having a bearing on the subject is admissible, even though it might also tend to show him guilty of other crimes” (64 AD2d 803, 804).

We note at the outset that we agree in principle with the Appellate Division’s conclusion that the People are entitled to introduce evidence of prior criminal conduct which is probative of the defendant’s sanity once the question of the defendant’s sanity is made an issue in the case. We nonetheless hold that the present conviction must be reversed, since we find that much of the evidence admitted by the Trial Judge failed to meet the test of "relevancy” long established in our earlier decisions.

As a general rule, evidence of prior, uncharged criminal conduct may not be admitted as part of the People’s direct case if its only purpose is to establish the accused’s propensity to engage in criminal activities (e.g., People v Fiore, 34 NY2d 81, 84; People v Dales, 309 NY 97, 101; Coleman v People, 55 NY 81, 90; see Richardson, Evidence [10th ed — Prince], § 170; Wigmore, Evidence [3d ed], § 305). While such evidence may be marginally relevant to the question of the accused’s guilt, its probative value is deemed to be outweighed by its potential for prejudice, and, accordingly, the evidence is excluded as a matter of judicial policy (People v Molineux, 168 NY 264, 294, supra; see People v Allweiss, 48 NY2d 40, 46; People v Zaekowitz, 254 NY 192; Fisch, New York Evidence [2d ed], § 209; McCormick, Evidence [2d ed], § 190). On the other hand and in limited instances, where the evidence of prior, uncharged criminal conduct has a bearing upon a material aspect of the People’s case other than the accused’s general propensity toward criminality, our cases have recognized that the probative value of the evidence justifies its admission, notwithstanding the potential for incidental prejudice (People v Allweiss, 48 NY2d 40, supra; People v Vails, 43 NY2d 364; People v Jackson, 39 NY2d 64; People v Molineux, 168 NY 264, supra).

There is no pre-established formula for determining when a particular uncharged criminal or immoral act may be admitted in evidence against a defendant (see McCormick, Evidence [2d ed], § 190). Although we have suggested certain "categories” for use as a guide in evaluating the relevance of such evidence (see People v Molineux, 168 NY 264, supra), we have consistently stated that these categories are not exhaustive, but rather represent "illustrations” of the type of analysis to be applied in cases involving potentially prejudicial information (e.g., People v Vails, 43 NY2d 364, 368, supra; People v Jackson, 39 NY2d 64, 68, supra; People v Calvano, 30 NY2d 199, 205-206). We have held, for example, that evidence of prior, uncharged crimes will often be admissible in cases where the defendant raises the affirmative defense of entrapment (People v Calvano, 30 NY2d 199, supra; see People v Mann, 31 NY2d 253). This is so because, in asserting this defense, the accused necessarily places his predisposition to commit the crime in issue (see Penal Law, § 40.05) and thereby "opens the door” for the People to introduce evidence of similar uncharged acts. Similarly, when a defendant interposes the "insanity defense”, he necessarily puts in issue some aspects of his character and personal history. By coming forward with sufficient evidence to rebut the presumption of sanity, the defendant in effect injects a new factual issue into the case, and the People are consequently required to bear the additional burden of proving the defendant sane beyond a reasonable doubt (see, e.g., People v Silver, 33 NY2d 475). It would strain the rules of evidence beyond anything ever intended by our prior decisions to hold, as defendant urges, that the People are precluded from introducing evidence to counter a defendant’s claim of insanity solely because the evidence involves the defendant’s previous immoral or unlawful conduct.

We hold instead that evidence of uncharged criminal or immoral conduct may be admitted as part of the People’s case on rebuttal if it has a tendency to disprove the defendant’s claim that he was legally insane at the time of the crime. Background information which sheds light upon a defendant’s personal history is often of crucial significance in cases involving the insanity defense, and we decline to adopt a blanket rule which would exclude such information solely because it is indicative of the defendant’s prior antisocial conduct. Having placed his mental state before the trier of fact, the defendant cannot complain when the People seek to bring forth additional evidence bearing upon that issue.

This is not to suggest, however, that a defendant automatically places his entire character in issue when he interposes the defense of legal insanity. To the contrary, a defendant who asserts an insanity defense "opens the door” to the People’s "character evidence” only to the extent that such evidence has a natural tendency to disprove his specific claim. In the present case, for example, defendant’s claim was that he suffered from a form of "temporary insanity” that prevented him from apprehending the nature and consequences of his acts and from knowing that his conduct was wrong. He attempted to establish this claim through lay testimony concerning his "unusual” behavior in the weeks preceding the shooting and through expert testimony indicating that his symptoms were consistent with an ultimate "break with reality” in the form of a "paranoid delusion”. The presumption of sanity having thus been rebutted, the People were faced with the burden of having to prove defendant sane beyond a reasonable doubt. Given the nature of defendant’s insanity claim, it was reasonable for the prosecutor to counter defendant’s evidence with evidence that defendant’s conduct also was consistent with a "personality disorder” not rising to the level of legal insanity. To the extent that evidence of defendant’s prior violent acts and his relationship with organized crime had a direct bearing upon the validity of the People’s "explosive personality” theory, we think it was clearly admissible.

The problem arises in this case, however, because the Trial Judge failed to evaluate with sufficient particularity whether each piece of evidence offered by the People was actually relevant and material to their "explosive personality” theory (cf. People v Allweiss, 48 NY2d 40, 49, supra). It is on this point, in fact, that we depart from the views expressed by the Appellate Division. In deciding whether to admit evidence of prior criminal or immoral conduct in rebuttal to an insanity claim, the trial court must take special care to ensure not only that the evidence bears some articulable relation to the issue, but also that its probative value in fact warrants its admission despite the potential for prejudice. As we noted in People v Allweiss (48 NY2d 40, 47, supra): "If the evidence is actually of slight value when compared to the possible prejudice to the accused, it should not be admitted, even though it might technically relate to some fact to be proven” (accord McCormick, Evidence, § 190). This observation is particularly apt in cases involving the insanity defense, where virtually every fact in the accused’s life may in some sense be said to have a bearing upon the issue of his mental state. Indeed, in insanity cases such as this, the danger is particularly great that the jury will become confused by the mass of evidence presented and will decide to convict the defendant not because they find he was legally sane at the time of the act, but rather because they are convinced that he is a person of general criminal bent.

With these considerations in mind, we turn our attention to an analysis of the individual pieces of evidence that were admitted below over objection by defense counsel. The first witness to testify for the People on rebuttal was one Robert Grover, who stated that he had observed defendant participate in a barroom scuffle. Grover, however, had no information regarding how the fight started and was unable to state whether defendant had reacted without adequate provocation. Thus, while Grover’s testimony may have served to demonstrate that defendant actually did engage in violence on at least one occasion, it could not logically be used to support the People’s theory that defendant had a chronically “explosive” temperment or a "hair trigger” temper. Since there was at least some potential for prejudice in Grover’s testimony, and since the testimony was not directly relevant to the question of defendant’s sanity, we think that it should have been excluded.

Similarly objectionable was the admission of testimony by a police officer, Charles Monroney, who stated that he observed defendant standing behind a bar throwing bottles and glasses around the room. Like the testimony offered by Robert Grover, Officer Monroney’s testimony shed no light on the questions of how the incident began and whether there might be some rational explanation for defendant’s conduct. In light of the ambiguity of this testimony, it cannot be said that its probative value with respect to defendant’s mental condition outweighed its potentially prejudicial effect, and accordingly, we find that the testimony should not have been placed before the jury.

The most serious trial error occurred, however, when the Trial Judge permitted the jury to hear the testimony of Vincent Christina, defendant’s close friend, and one Eugene Heath, a teamster shop steward. Heath stated under oath that he had been attacked and badly beaten by two men, but he was unable to identify his assailants. Christina supplied the missing information, testifying that he and his friend, Joseph Santarelli, had traveled to Heath’s place of business and had beaten the shop steward in accordance with a pre-established plan. The admission of this testimony plainly posed a danger that the jury would be influenced by the implication that defendant was a vicious individual who was given to coldblooded acts of violence. Yet, there was nothing in the testimony that was indicative of an "explosive personality” or a penchant for impulsive violence; if anything, the contrary was suggested. Since there could have been no logical purpose for the evidence concerning the Heath incident other than to demonstrate defendant’s general propensity toward criminality, there was no justification for the admission of this highly prejudicial information.

Finally, we hold that it was also error to permit testimony by defendant’s probation officer, John Caram, that defendant had previously been convicted of possession of a sawed-off shotgun. We can see no logical relationship between the ownership of a weapon, legal or not, and the symptoms of an "explosive personality”, and we therefore conclude that whatever probative value the evidence may have had was greatly outweighed by its potential for prejudicing the jury.

It should be noted that not all of the evidence offered by the People to support their "explosive personality” hypothesis suffered from the same infirmity. Probation Officer Caram, for example, also testified concerning several incidents in which defendant had resorted to violence in the face of relatively mild provocation. Since Officer Caram was able to give some information about the precipitating events preceding these incidents, this testimony was directly relevant to the question of defendant’s reaction patterns. Thus, it was properly admitted despite the danger of prejudice.

Similarly, the testimony elicited by the prosecutor regarding defendant’s relationship to organized crime had a tendency to support the People’s trial theory and was therefore properly admitted in evidence. An important aspect of the People’s case on rebuttal was its contention that defendant was not suffering from "paranoid delusions”, but rather was under considerable emotional stress at the time of the shooting as a result of circumstances that were firmly rooted in reality. It was shown that defendant had been made aware that an attempt had been made on the life of his friend, Vincent Christina, and that this knowledge had caused him to be fearful enough for his own safety to make inquiries concerning the possibility of receiving FBI protection. Although the connections were not drawn definitively, there was a clear implication that defendant’s fears were based upon his familiarity with local organized crime activities. The prosecutor’s purpose in bringing out these facts was to demonstrate that defendant was under very real stress at the time of the shooting. As indicated by the testimony of the expert witnesses, such a stressful situation would likely accentuate the characteristics of an individual with an "explosive” personality and cause him to react with disproportionate force when faced with frustration or mild provocation. Hence, if the facts concerning defendant’s problems with respect to organized crime were proven, the jury could infer that the shooting had simply been precipitated by the considerable emotional pressure under which defendant had been laboring, rather than by any "temporary psychosis” sufficient to satisfy the definition of legal insanity. For this reason, we conclude that the testimony offered by the People to demonstrate that defendant was familiar with organized crime activities and had become fearful for his life was relevant, to the central issue in this case, the defendant’s sanity. Accordingly, the testimony was properly admitted in evidence.

We note in passing that we are not insensitive to the problems encountered by the Trial Judge in cases such as this. It is often difficult, if not impossible, for the Trial Judge to determine in advance whether the testimony of a particular witness will be relevant to a specific issue in the case. Here, the Trial Judge made a commendable effort in this direction by conducting an inquiry out of the jury’s hearing to ascertain the nature and relevance of the People’s rebuttal proof. It is apparent from our holding, however, that his inquiry was not sufficiently detailed to permit him to make an informed determination as to the relevance of each piece of evidence offered by the District Attorney. Indeed, in view of the unpredictability of live testimony, we note that it is sometimes almost impossible for a Trial Judge to ascertain in advance whether the evidence offered through a witness regarding a defendant’s past crimes would be sufficiently relevant to justify its admission at trial.

It is for this reason that we disapprove of defense counsel’s decision in this case to rely upon a "continuing objection” to the District Attorney’s entire line of proof. While defense counsel’s anticipatory "continuing objection” may have served the technical function of preserving a "question of law” for appellate review (see CPL 470.05, subd 2), it did not provide the Trial Judge with an opportunity to consider the specific relevance of each fact as it was being presented through testimony. Had individual objection been taken each time prejudicial information was elicited, the Trial Judge might have been moved to require the prosecutor to articulate his theory of relevancy with more specificity, and the defects in the instant proceeding might have been avoided (cf. People v Michael, 48 NY2d 1, 6). In light of the difficulties encountered in this case, we find that the trial court’s acceptance of defendant’s "continuing objection” was ill-advised and that the interests of all parties would have been better served had individual objection been required.

Finally, we note that the Trial Judge acted properly in instructing the jury that it could consider defendant’s prior criminal history only in relation to the question of his sanity and not as an indication of his general propensity to commit the crime for which he was on trial. While such limiting instructions could not serve to cure the errors in admitting the objectionable testimony, they did serve the salutory purpose of minimizing any prejudicial effect that the otherwise properly admitted evidence might have had on the minds of the jurors.

For the foregoing reasons, the order of the Appellate Division should be reversed and the case remitted for further proceedings on the indictment.

Jasen, J.

(dissenting). I would affirm the order of the Appellate Division. In my opinion, the rule adopted by the majority today unfairly restricts the People’s use of evidence of prior crimes and antisocial conduct offered solely for the purpose of proving defendant’s mental condition. The majority, in adopting a new restrictive rule, overemphasizes the possibility of prejudice to the defendant and, in so doing, has withheld from the jury logically probative and clearly relevant proof of defendant’s sanity which the trial court, in its discretion, may accept into evidence.

As noted by the majority, once the defense of insanity is interposed by the defendant, it is incumbent upon the People to prove defendant’s sanity beyond a reasonable doubt. (See, e.g., People v Silver, 33 NY2d 475.) In attempting to meet this evidentiary burden, the prosecution should be permitted to introduce evidence of the whole previous career of the accused in order to assist the jury in evaluating the insanity defense interposed. This is so because a defendant’s reliance upon the insanity defense places his mental condition in issue and the question to be determined by the jury is not whether the defendant committed the acts complained of, but, rather, whether the defendant is criminally responsible for his actions.

In the case before us, defendant admitted killing his brother-in-law. His plea of not guilty by reason of insanity made the issue of defendant’s sanity the sole question to be decided by the jury. Thus, the traditional concern as to whether evidence of prior crimes and antisocial conduct will lead the jury to improperly infer criminal predisposition, if not altogether absent from the case, is at least greatly attenuated. As a result, the rule articulated in People v Molineux (168 NY 264) and its progeny — where the issue was whether the defendant actually committed the acts complained of — has little application to the instant case, except insofar as it reaffirms the general proposition that evidence bearing upon the character and prior history of the defendant may be excluded when its probative force is outweighed by its potential for prejudice.

The general rule that evidence which is highly prejudicial and only marginally probative and relevant must be excluded is grounded upon the notion that a defendant in fairness must be convicted upon proof of his guilt of the crime charged and not upon an inference of guilt flowing from proof that he has been a lifelong criminal, no matter how antisocial his prior behavior may have been. The wisdom and continued vitality of this rule is, of course, beyond dispute. However, in a case where a criminal defendant admits committing an illegal act and relies exclusively upon the defense of insanity to gain an acquittal, there is no danger that he will be convicted on the basis of an inference of criminal predisposition flowing from proof of prior crimes and antisocial conduct because the question of whether he committed the crime is simply not in issue.

The sole question for the jury to determine in such a case is whether the defendant was sane at the time he committed an act which has been proscribed by the Legislature. Since the risk that the defendant will be prejudiced is absent in a case where the defendant relies exclusively on the insanity defense, the only remaining factor to be considered in determining whether evidence of prior crimes and antisocial conduct is admissible is whether such evidence has any legal or medical probative value, or, quite simply, whether such evidence is material and relevant to the issue of defendant’s sanity at the time of the offense and whether it would be helpful to the jury in evaluating the defense of insanity.

The majority suggests that in order to be relevant, evidence of prior crimes and antisocial conduct must be consonant with the prosecutor’s theory of sanity — in this case, a "personality disorder”, also termed an "explosive personality”. However, the majority cites no authority for this proposition other than the general rule that the probative value of such evidence must outweigh its potential for prejudicing the defendant. In fact, where the defendant’s sanity is in issue, the weight of authority is to the contrary.

It has long been recognized that the scope of evidence which is admissible on the issue of insanity is very broad indeed. In People v Carlin (194 NY 448, 452), for example, this court noted "[t]he whole previous career of a man, in its general aspects at least, may throw some light on his mental condition at the time when he is alleged to have committed a criminal offense, and when insanity is relied upon as a defense in his behalf.” A similar view has also been articulated by Professor Wigmore in his treatise on evidence. He states: "The first and fundamental rule, then, will be that any and all conduct of the person is admissible in evidence. There is no restriction as to the kind of conduct. There can be none; for if a specific act does not indicate insanity it may indicate sanity. It will certainly throw light one way or the other upon the issue.” (2 Wigmore, Evidence [3d ed], § 228, p 9; emphasis in original.) Other leading treatises are in agreement. (See Fisch, New York Evidence [2d ed], § 243, p 150; 1 Wharton, Criminal Evidence [13th ed], § 258, pp 619-620; Weihofen, Mental Disorder as a Criminal Defense, pp 312-317; McCormick, Evidence, § 249, pp 592-593.) Likewise, a number of our sister States are substantially in accord. (See, e.g., People v David, 12 Cal 2d 639; State v Huson, 73 Wn 2d 660; Whitten v State, 263 Ind 407; Mears v State, 83 Nev 3; McLeod v State, 317 So 2d 389 [Miss]; see, also, 29 Am Jur 2d, Evidence, § 353, pp 402-403, and the cases cited therein.)

The majority asserts that this concept of admissibility was not intended to apply to proof of sanity offered by the People, but only to proof of insanity offered by the defense. However, the majority fails to explain why the same proof offered on the same issue is relevant when offered by the defendant and irrelevant when offered by the People. It would seem that if a criminal defendant may offer any proof of his previous career to the jury in support of his claimed infirmity, the People should be equally free to do so with respect to their claim that the defendant is sane. This is especially true in view of the People’s burden of establishing defendant’s sanity beyond a reasonable doubt.

Although the majority suggests that it has not done so, it has effectively restricted the People to only one theory of sanity. In my opinion, such a restriction is inappropriate. The defendant in this case has grounded his defense on a type of insanity in the nature of a "paranoid delusion”, and contends that he was only temporarily incapacitated at the time he killed his brother-in-law. In order to rebut the defense of temporary insanity, the People attempted to show that the defendant suffered from a "personality disorder” and that, although quite sane, he tended to react violently at the slightest provocation. The majority has chosen to exclude from evidence the testimony of several witnesses which indicated antisocial and violent behavior in the defendant’s past and evidence of prior criminal activity. The proffered reason for this exclusion is that the evidence was either unclear as to the amount of provocation involved or concerned intentional unprovoked violence. This analysis, however, defies reason.

Although the prosecutor relied to a great extent upon the theory that defendant suffered from a "personality disorder”, in so doing he did not bind himself to do so to the exclusion of every other possible theory of sanity. It must be remembered that the prosecutor’s burden in this case was to prove defendant’s sanity beyond a reasonable doubt, not to set forth a single unitary theory of sanity. He was free to offer a number of theories of sanity so long as each was material and relevant to a reasonable alternative explanation which could rebut defendant’s claim of temporary insanity. In my opinion, the excluded evidence was relevant on this issue. The sheer number of violent acts committed by the defendant, both premeditated and as a reaction to whatever amount of provocation and his prior criminal possession of a weapon might well lead the jury to infer that the defendant’s claim of temporary insanity was not worthy of belief in light of his past history of sane but antisocial behavior. This evidence does not become irrelevant merely because the prosecutor failed to label his theory properly.

I would also point out that this inference of "predisposition toward violence” is altogether different from the inference of "criminal predisposition” which the authorities cited by the majority seek to prevent. In fact, a sane yet antisocial predisposition toward violence is an entirely acceptable and relevant theory with which a prosecutor may rebut a claim of temporary insanity. This is equally true whether such predisposition toward antisocial conduct arises from a "personality disorder” or from any other sort of sane yet antisocial behavior. In short, it seems quite clear that most, if not all, of the prosecutor’s proof was material and relevant on the issue of sanity and was, therefore, admissible.

One other point deserves mention. The rule which prohibits the introduction of evidence of prior crimes and immoral or vicious acts when its probative value is outweighed by its potential for prejudice has been applied both in cases where the People have attempted to introduce such evidence on their direct case (see, e.g., People v Molineux, 168 NY 264, supra) and for impeachment purposes (see, e.g., People v Sandoval, 34 NY2d 371). However, in cases involving the use of prior crimes and immoral and vicious acts for impeachment purposes, the determination of whether the probative force of a given piece of evidence outweighs its potential for prejudice has been left to the sound discretion of the trial court. (People v Shields, 46 NY2d 764, 765; People v Duffy, 36 NY2d 258, 262-263; People v Sandoval, 34 NY2d 371, 374, supra.) Only in cases where a clear abuse of discretion can be shown should the Trial Judge’s ruling be overturned on appeal. This rule springs from the notion that the trial court has inherent power to control the scope of cross-examination and from a recognition of the distinction between the use of evidence of prior crimes and immoral acts as proof of guilt as opposed to proof of credibility. In those situations where such evidence is not used to prove guilt directly, the trial court has been allowed considerable latitude. (See, e.g., People v Shields, 46 NY2d 764, 765, supra; People v Duffy, 36 NY2d 258, 262-263, supra.)

In the instant case, proof of prior crimes and antisocial conduct was offered by the People not to prove that the defendant killed his brother-in-law, for the homicide had been admitted. Rather, such proof was offered only for the limited purpose of establishing defendant’s mental condition, an issue which, like credibility, leads to a separate inquiry requiring proof which is distinct from proof that a criminal act has been committed. Therefore, in my view, the responsibility for determining relevance and weighing the probative force and prejudicial effect of such evidence should be placed primarily upon the trial court.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jones, Wachtler, Fuchs-berg and Meyer concur with Judge Gabrielli; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . We note that other jurisdictions have recognized that a defendant’s prior immoral or criminal acts may have probative value when the question of the defendant’s sanity is made an issue in the case (e.g., People v Valcalda, 188 Cal 366; Mears v State, 83 Nev 3, cert den 389 US 888).

      . This is not to suggest, of course, that the prosecution was limited to building a single, integrated theory of "sanity” as a means of rebutting defendant’s insanity claim. To the contrary, the prosecutor was free to present his rebuttal case in any manner he deemed most effective. Here, the prosecutor chose to concentrate on establishing an alternate theory of defendant’s mental state to demonstrate that the shooting was the act of a legally sane man. Since the prosecutor himself elected to chart his own course in this manner and, indeed, relied exclusively upon his "explosive personality” hypothesis as a justification for introducing evidence of defendant’s prior immoral and illegal acts, his offer of proof can only be evaluated with reference to that hypothesis.

      . It is true that in People v Carlin (194 NY 448, 452), we stated that "[t]he whole previous career of a man, in its general aspects at least, may throw some light on his mental condition at the time when he is alleged to have committed a criminal offense, and when insanity is relied on as a defense”. This statement, however, was intended only as an indication of the considerable latitude which should be afforded to a defendant who is seeking to prove his own insanity as a defense to a criminal charge. The statement certainly was not intended to suggest that the People may bring in "the whole previous career of a man” whenever the insanity defense is interposed. Indeed, such a rule would impose an unwarranted burden upon a defendant who has a potential defense on grounds of insanity, since it would force him to choose between foregoing the defense on the one hand and, raising it on the other hand and taking the risk that the People will use the occasion to place all of his past immoral or illegal conduct before the jury, regardless of its relevance.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jack Silverstein, Respondent, v Irving E. Minkin, Individually and as Acting Commissioner of the Department of Buildings of the City of New York, et al., Appellants.
    Argued January 7, 1980;
    decided February 7, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Peter Lavigne and Carolyn E. Demarest of counsel), for appellants.
    I. Petitioner was given proper and adequate notice of his right to a hearing prior to his license revocation. (Goldberg v Kelly, 397 US 254; Mullane v Central Hanover Trust Co., 339 US 306; Memphis Light, Gas & Water Div. v Craft, 436 US 1.) II. Petitioner’s failure to avail himself of the opportunity for a hearing constituted a waiver of his right to such hearing. (Boddie v Connecticut, 401 US 371; Matter of Grottano v Kennedy, 5 NY2d 381; Sullivan v Department of Social Servs. of City of N. Y., 44 AD2d 672, 36 NY2d 766, 423 US 839.)

      Jack Silverstein, respondent pro se.

    I. The revocation of petitioner’s license without affording him a full and fair hearing was improper. (Matter of Hecht v Monaghan, 307 NY 461; Matter of Brody’s Auto Wrecking v O’Connell, 31 Misc 2d 466; Matter of Murray v Murphy, 24 NY2d 150.) II. Petitioner was denied a hearing on the charges raised in the July 17, 1978 letter. (Duplex Co. v Deering, 254 US 443; Wong Yang Sun v McGrath, 339 US 33; Matter of Simms v Monaghan, 282 App Div 733, 307 NY 637; Matter of Wignall v Fletcher, 278 App Div 28, 303 NY 435.) III. Petitioner’s refusal to answer questions including those beyond the scope of his subpoena cannot constitute the basis for a license revocation. (Bradley v O’Hare, 2 AD2d 436; Matter of Weaver, 58 Misc 2d 901; Meyer v Minsky, 128 App Div 589; Matter of Tropiano v Codd, 57 AD2d 769; Matter of Sherman v Oswald, 31 AD2d 516; Matter of Victorian House v New York State Liq. Auth., 24 AD2d 484.)
   OPINION OF THE COURT

Per Curiam.

Following an accident in which one of his employees was killed in a fall from a scaffold, the petitioner, a licensed rigger, accompanied by his attorney, attended and voluntarily testified before an official board of inquiry convened to investigate the cause of the accident. At a subsequent adjourned session of the inquiry the petitioner again appeared, this time under subpoena. On that occasion he refused to answer several questions, stated that he did not know he was required by the Administrative Code of the City of New York to keep a record of tests of his scaffolds, and refused to divulge the locations of other jobs involving scaffolding that then were being performed by his corporation.

Four days later the petitioner was notified by letter that his rigging license had been suspended for five days because of his refusal to reveal the location of his jobs using scaffolding and his admitted failure to keep required test records. The letter then stated that "During this time period you may contact Mr. Jacob Grill — Director of Division of Cranes, Derricks, Hoisting and Rigging, if you wish to be heard concerning your refusal to identify your job locations, as well as your admitted violation of Section C26-1907.4(b) of the code. Should you fail to properly explain your actions by July 21, 1978 your special riggers license will be revoked permanently.”

Section B26-1.8 of the New York City Administrative Code provides that the Commissioner of the Department of Buildings may not suspend or revoke any license except upon written notice at least five days in advance, and an opportunity to be heard. The precise form and content of the notice are not specified. It is the petitioner’s contention in this proceeding, as the Appellate Division concluded, that the letter did not afford him "acceptable” notice of his right to a hearing, and consequently that his failure to respond did not constitute a waiver of his right to a hearing.

The classic formulation of the standard by which the adequacy of notice is to be judged was stated by the United States Supreme Court in Mullane v Central Hanover Trust Co. (339 US 306, 314): "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” We conclude that the notice given in this case meets that standard.

First, it is undisputed that the petitioner received the letter. Second, he was informed of the nature of the proceedings and the possible consequences that might ensue. Third, he was informed that he had a right to be heard on the matter at issue, and the precise steps that should be taken should he desire to exercise that right. And fourth, the notice was given in plain, simple language that would be understood by any person of normal perceptions and intelligence. Indeed, it would be difficult to imagine a more explicit statement than that with which the letter concluded: "Should you fail to properly explain your actions by July 21, 1978 your special riggers license will be revoked permanently.”

That other or more felicitous words might have been chosen does not make the letter any less of a notice to petitioner of his right to a hearing prior to his license revocation nor does it excuse the failure of the petitioner to act on the notice that was given.

The order of the Appellate Division should be reversed, without costs, and the judgment (denominated order) of the Supreme Court reinstated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, without costs, and the judgment of Supreme Court, New York County, reinstated.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Luis Arroyave, Also Known as Henry Fortwl, Appellant.
    Argued December 12, 1979;
    decided January 10, 1980

      POINTS OF COUNSEL

      Mark Lemle Amsterdam for appellant.
    Appellant was denied his constitutional right to counsel. (United States v Seale, 461 F2d 345; People v McLaughlin, 291 NY 480; People v Diker, 34 AD2d 798; People v McManus, 17 Misc 2d 247; People v Iacona, 44 Misc 2d 573; People v Faracey, 46 Misc 2d 46; People v Gordon, 262 App Div 534; People v Walker, 29 AD2d 973.)

      Robert M. Morgenthau, District Attorney (Vivian Berger, Robert M. Pitler and Sanford H. Siegal of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Sierra, 45 NY2d 56; People v Roche, 45 NY2d 78.) II. The lower court correctly exercised its broad discretion in refusing to terminate a trial in progress in order to permit replacement counsel to prepare for trial where the court reasonably apprehended dilatory tactics, defendant had not unequivocally retained new counsel, and assigned counsel had furnished — and continued to furnish — excellent representation to defendant. (People v Reynolds, 39 AD2d 812; Releford v United States, 288 F2d 298; People v Dinan, 15 AD2d 786, 11 NY2d 350; People v Crown, 51 AD2d 588; People v Singleton, 41 NY2d 402; United States ex rel. Hyde v McMann, 263 F2d 940, cert den sub nom. United States ex rel Hyde v Lavalee, 360 US 937; United States v Mitchell, 138 F2d 831; People v Medina, 44 NY2d 199; People v Faracey, 46 Misc 2d 46.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, the sole issue presented for our determination is whether the trial court’s denial of a motion to grant newly retained counsel an adjournment to enable him to prepare for trial deprived defendant of his constitutionally guaranteed right to be defended at trial by counsel of his own choosing.

The facts relevant to this appeal are as follows: Defendant was arrested on September 9, 1974 and charged, in a 12-count indictment, with various offenses arising out of the sale and possession of marihuana and cocaine on three separate occasions. On September 11, 1974, an attorney was assigned to represent defendant pursuant to article 18-B of the County Law. Some two months later, defendant requested that assigned counsel be relieved and new counsel assigned. This request was denied.

Although the record reveals that assigned counsel represented defendant in a most diligent and conscientious manner, defendant remained persistent in his efforts to obtain , newly assigned counsel. Each subsequent request to relieve assigned counsel and to substitute newly assigned counsel was denied, and after the completion of various pretrial proceedings, the parties were advised to be ready to proceed to trial on September 23, 1975.

On September 23, 1975, while the jury panel was assembled for preliminary instructions, one Frank Bress, an attorney with the New York University Criminal Law Clinic, appeared and advised the court that defendant had written him a letter in early April, 1975 "seeking my assistance in his defense.” Mr. Bress explained that he responded to defendant by letter dated April 10, in which he advised defendant that "if [defendant] gave me a bit more information about his case; adjourned date and brief description of the case, that I would investigate the situation and probably represent him.”

Mr. Bress explained further that it had come to his attention that the letter he sent to defendant "was held by the Department of Corrections until September 19, four days ago” when it was given to defendant, who immediately responded by letter to Mr. Bress apprising him of the situation. Mr. Bress stated that he received the letter that very morning, and "tracked down the court clerk and found out the status and I am here to tell the Court I will appear as counsel for the defendant.”

The following colloquy ensued between Mr. Bress and the court:

"THE COURT: We started this trial, counsel.

"MR. BRESS: I understand. What the defendant discussed with me in the pen and in his letter, he told me he was dissatisfied with counsel then representing him and was attempting to have counsel [relieved] and new counsel appointed. I think that there is probably a comedy of errors. The letter held by the Department of Corrections and not being directed toward [defendant] earlier.

"THE COURT: Is it that you want to try the case? Do you want to sit in?

"MR. BRESS: I will try the case. I think it would be unreasonable to ask me to try the case this morning.

"THE COURT: I’m sorry, counsel.

"MR. BRESS: I think that it appears the defendant’s Constitutional Right to representation by counsel of his own choice has apparently been violated in part by the Department of Correction in not forwarding my letter to him. Had that letter been forwarded I would have been installed as counsel much earlier and been ready to try the case.

"THE COURT: You wrote to him saying you want more information and perhaps you might represent him.

"MR. BRESS: Yes.

"THE COURT: You never did come in and sign a slip of paper saying that you in fact represent this defendant the first time.

"MR. BRESS: I never did.

"THE COURT: I am not about to interrupt this trial which has already commenced to permit you to make an application for any kind of adjournment.

* * *

"THE COURT: Do you want to try the case?

"MR. BRESS: Yes.

"THE COURT: I will substitute you right now in [assigned counsel’s] place and you can sit there and proceed with the selection of the jury.

"MR. BRESS: I think you are aware that would probably be less than good representation than he already has.

"THE COURT: What is your application?

"MR. BRESS: My application is for a delay of the trial to allow me sufficient time to prepare myself to try it.

"THE COURT: Your application is denied.”

Thereafter, the case was tried — defendant being represented by assigned counsel — and the jury returned a verdict finding defendant guilty of two counts of criminal sale of controlled substances in the first degree. Defendant was sentenced to concurrent terms of 15 years to life.

On appeal, a divided Appellate Division affirmed the judgment of conviction. That court ruled, in essence, that under the particular facts of this case, the trial court did not abuse its discretion in denying Mr. Bress’ application for a trial adjournment so as to deprive defendant of his right to defend by counsel of his own choosing. The order of the Appellate Division should be modified, and the case remitted to Supreme Court, New York County, for an evidentiary hearing on the issue whether the Department of Correction obstructed defendant’s efforts to secure counsel of his own choosing by delaying delivery to defendant of the letter from Attorney Bress, dated April 10, 1975, until September 19, 1975.

It is certainly well established that the right to counsel, guaranteed by both the Federal and State Constitutions (US Const, 6th Amdt; NY Const, art I, § 6), embraces the right of a criminal defendant to be represented by counsel of his own choosing. (Chandler v Fretag, 348 US 3, 9; Powell v Alabama, 287 US 45, 53; People v Hannigan, 7 NY2d 317, 318; People v McLaughlin, 291 NY 480, 482; People v Price, 262 NY 410, 412.) As a necessary corollary to this right, a defendant must be accorded a reasonable opportunity to select and retain his counsel. (See Chandler v Fretag, 348 US, at pp 9-10, supra; United States v Bragan, 499 F2d 1376, 1379.)

This constitutional guarantee ensuring the right of a defendant to be represented at trial by counsel of his own choosing serves many critical needs. Paramount among these considerations is the need for a defendant to be willing to confide freely and fully in his attorney so that the channels of communication and advice between counsel and his client may remain free-flowing and unobstructed. Mutual co-operation between defendant and counsel is often times a critical prerequisite to effective legal representation, and an atmosphere of trust and respect can best be obtained if a defendant’s choice of counsel is honored. (Cf. Baird v Koerner, 279 F2d 623, 629-630.)

In addition, the accused is more likely to harbor a feeling that his presumed innocence and individual rights were scrupulously protected at trial. By granting a defendant a reasonable opportunity to retain counsel of his own choosing, individual rights are honored and the ultimate public concern at any criminal trial — the need to discern the truth — is best effectuated. (See, generally, Comment, An Examination of the Sixth Amendment Right to Choose Retained Counsel, 60 Iowa L Rev 328, 331-332.)

The courts of this State have remained vigilant in their duty to ensure that a defendant’s right to retain counsel of his own choosing is protected. Thus, it has been held to be reversible error where a court does not honor a defendant’s timely request to retain counsel (see, e.g., People v McLaughlin, 291 NY 480, supra; People v Walker, 29 AD2d 973; People v Faracey, 46 Misc 2d 46), or where a court proceeds with the trial, the taking of a guilty plea, or sentencing in the absence of the defendant’s retained counsel, even though an attorney has been assigned to represent the defendant’s interests (see, e.g., People v Fitch, 25 AD2d 783; People v Gordon, 262 App Div 534; People v Di Salvo, 19 AD2d 747; People v Iacona, 44 Misc 2d 573). In short, courts must remain sensitive to the benefits which both the defendant and the legal process itself derive from permitting the criminally accused to obtain counsel of his own choosing, and should undertake the steps reasonably required to ensure that the defendant’s right to retain counsel is honored.

Although a defendant has the constitutionally guaranteed right to be defended by counsel of his own choosing, this right is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel. While it has been stated that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality” (Ungar v Sarafite, 376 US 575, 589), it is equally true that the constitutional right to defend by counsel of one’s own choosing does not bestow upon a criminal defendant the absolute right to demand that his trial be delayed while he selects another attorney to represent him at trial. (See, e.g., United States v Bragan, 499 F2d 1376, 1379, supra.) Whether a continuance should be granted is largely within the discretion of the Trial Judge (see, e.g., People v Crown, 51 AD2d 588; People v Gordon, 262 App Div 534, supra; cf. People v Singleton, 41 NY2d 402, 405), and the question whether a defendant has been denied his right to retain counsel of his own choosing can only be answered by examining the particular facts of each case.

It can be said, however, that absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a defendant’s request to substitute counsel made on the eve of or during trial if the defendant has been accorded a reasonable opportunity to retain counsel of his own choosing before that time. (See People v Crown, 51 AD2d 588, supra; People v Reynolds, 39 AD2d 812; cf. People v Medina, 44 NY2d 199.) At this point, public policy considerations against delay become even stronger, and it is incumbent upon the defendant to demonstrate that the requested adjournment has been necessitated by forces beyond his control and is not simply a dilatory tactic.

On the record now before us, however, we are unable to ascertain whether the denial of the request for an adjournment was a proper exercise of the Trial Judge’s discretion. In determining whether the denial was justified, we must look to the reasonableness of the trial court’s decision in light of all the existing circumstances. One such circumstance in this case is whether the Department of Correction obstructed defendant’s efforts to secure counsel of his own choosing by delaying delivery to defendant of the letter from Attorney Bress, dated April 10, 1975, until September 19, 1975. Inasmuch as we consider the answer to this inquiry critical to the correct disposition of this appeal, an evidentiary hearing on this issue is required.

If, in fact, the delay was attributable to the Department of Correction, it would follow that the department obstructed defendant’s timely efforts to secure counsel of his own choosing and, therefore, defendant would be entitled to a new trial. Attorney Bress stated that defendant attempted to retain his services several months before the trial date and, further, Attorney Bress expressed, in clear and unequivocal terms, his willingness to represent defendant. The excuse offered by Attorney Bress for his delay in appearing on defendant’s behalf, if credited, would have justified the granting of the requested adjournment, for nothing in the colloquy compels the conclusion that the appearance by Attorney Bress was merely a ploy or tactic employed by defendant to disrupt the judicial proceedings. In such situations, the Trial Judge is under an obligation to inquire fully into the facts and circumstances surrounding the delay and the justification offered therefor. Of course, such inquiry must be placed on the record so that effective appellate review may be had.

However, if it is found that the delay in the exchange of correspondence between Attorney Bress and defendant is not attributable to the Department of Correction, there could be no finding that the department obstructed defendant’s efforts to secure counsel of his own choosing and, therefore, Attorney Bress’ request for an adjournment was properly denied. Defendant had more than ample opportunity to retain counsel of his own choosing before the date set down for trial, and the denial of Attorney Bress’ eleventh-hour motion under such circumstances would be eminently proper. Inasmuch as the trial had commenced, considerations of public policy — the critical need for the efficient administration of justice — militate against a finding that the Trial Judge acted improperly in denying the request. As has been stated, "[t]he right to counsel does not include the right to delay.” (People v Reynolds, 39 AD2d 812, 813, supra.)

Finally, we reject the People’s contention that defendant is entitled to a new trial only if he can demonstrate that he was prejudiced by the court’s denial of the request for substitution of retained counsel and an adjournment to prepare for trial. The constitutional guarantee to be represented by counsel of one’s own choosing is a fundamental right, and the doctrine of harmless error is inapplicable upon a showing that such right has been abridged. (Cf. People v Felder, 47 NY2d 287, 294-296.)

Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court, New York County, for a hearing in accordance with this opinion, with directions to provide an appealable paper by either amending the judgment to reflect a determination adverse to defendant or by entering an order vacating the judgment and for a new trial if defendant prevails. As so modified, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Defendant does not contend on this appeal that his requests to obtain newly assigned counsel were improperly denied.

      . Although the transcript indicates that Mr. Bress made his appearance on October 3, 1975, it is clear that the case was scheduled to be heard and Mr. Bress appeared in court on September 23.

      . We are in complete agreement with the court below "that whether or not an attorney is in a retained capacity does not depend upon his receipt of a fee or some other form of compensation. An attorney may furnish free legal service tó a criminal defendant and still be considered retained counsel.” (63 AD2d 127, 132.)


author: Meyer, J. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Herbert E. Mackey, Appellant.
    Argued December 10,1979;
    decided January 10, 1980

      POINTS OF COUNSEL

      Stephen R. Mahler for appellant.
    I. Where an indictment count is drafted strictly in the language of a statute, the denial of a bill of particulars as to a material element of the crime which it charges amounts to reversible error. (People v Iannone, 45 NY2d 589; People v Fitzgerald, 45 NY2d 574; People v Bogdanoff, 254 NY 16; People v Smith, 90 Misc 2d 495; People v Bneses, 91 Misc 2d 625; People v Taylor, 43 AD2d 519; People v Thomas J. S, 61 AD2d 1018; People v Rivera, 56 AD2d 701; People v Delorio, 33 AD2d 350; People v Pierce, 40 AD2d 581.) II. It was an abuse of discretion for both the Special Term to initially deny defendant’s Sandoval application and the trial court to refuse to review such prior determination during the trial. (People v Sandoval, 34 NY2d 371; People v Yost, 50 AD2d 577; People v Carmack, 52 AD2d 264; People v Dickman, 42 NY2d 294; People v Shields, 58 AD2d 94; People v Mayrant, 43 NY2d 236; People v Solomon, 91 Misc 2d 760.)

      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
    I. The court below did not abuse its discretion in denying appellant’s request for a bill of particulars alleging the specific crimes which he intended to commit at the time he unlawfully entered complainant’s residence. (People v Spina, 14 AD2d 505; People v Smalley, 64 Misc 2d 363; People v Flinn, 146 Misc 423; People v Noblett, 244 NY 355; People v Gilligan, 42 NY2d 969; People v Rodriquez, 39 NY2d 976; People v Lynch, 23 NY2d 262; People v Utley, 45 NY2d 908; People v Robinson, 36 NY2d 224.) II. The court below did not abuse its discretion as a matter of law in permitting the People to cross-examine appellant as to his prior criminal record. Furthermore the proof of appellant’s guilt was overwhelming, thereby rendering any conceivable error in this respect harmless. (People v Duffy, 36 NY2d 258, 423 US 861; People v Sorge, 301 NY 198; La Beau v People, 34 NY 222; People v Sandoval, 34 NY2d 371; People v Greer, 42 NY2d 170; People v Reed, 56 AD2d 896; People v Lee, 55 AD2d 658; People v Cole, 54 AD2d 643; People v Warner, 52 AD2d 684; People v Williams, 53 AD2d 999.)
   OPINION OF THE COURT

Meyer, J.

Presented by this appeal are questions concerning the right to a bill of particulars with respect to a charge of burglary and of whether Sandoval rulings by both the pretrial Judge and the Trial Judge improperly denied defendant the possibility of testifying in his own behalf. For the reasons set forth below, we conclude that neither the denial of the particulars motion nor the several Sandoval rulings constituted an abuse of discretion. The order of the Appellate Division should, therefore, be affirmed.

Defendant was indicted and charged with rape in the first degree and burglary in the second degree. The burglary count accused defendant of "knowingly entering and unlawfully remaining in the dwelling of [complainant] with intent to commit a crime therein”, but did not specify the crime he was accused of intending to commit. Defendant made an omnibus motion (1) to dismiss the indictment, (2) for a bill of particulars, and (3) under Sandoval to preclude the People from using his prior convictions to impeach his credibility. The court denied the Sandoval relief in its entirety, denied the motion to dismiss the indictment, and denied that portion of the motion for a bill of particulars which requested that the People specify which crime defendant intended to commit within the building.

The prior convictions to which the Sandoval motion was addressed were for disorderly conduct (1963), for petit larceny (1963), for attempted felonious possession of drugs (1967), for robbery in the second degree (1971), and for criminal trespass (1975). The motion was repeated to the Trial Judge at the beginning of the trial, at the end of the People’s case and at the end of defendant’s case. The Trial Judge denied all three applications, however, on the ground that he could not overrule the pretrial Judge, a Judge of co-ordinate jurisdiction.

The fact setting in which these issues arise is sufficiently indicated by the following summary of the relevant testimony: Complainant was awakened at about 1:30 a.m. in her bedroom by a man who, she testified, was a stranger to her and who had no authority from her to enter her house. After the man left she found a window open in one of the other rooms. A textbook, pamphlet, registration and receipt card with defendant’s name on it and a schedule of classes for City College, which defendant attended, were found 10 to 12 feet from complainant’s house. Defendant identified the books, card and schedule as his. A storm window screen had been removed from a window of the house and was propped against the side of the house about three feet from the window. The window faced an alleyway between complainant’s house and the adjacent building, was in a poorly lighted area and was surrounded by shrubbery. When apprehended a short distance from the house defendant first stated "I live here” but then stated "Well, I don’t live here. I used to live here. I’m visiting friends.” The house was a two-family house in which the complainant’s sister had previously resided in the apartment which at the time of the incident was occupied by complainant and in which house two other sisters resided as tenants in the basement apartment. The tenant sisters and a man friend of theirs all testified that complainant had been present with defendant on a number of occasions, that the house was like "open house” to the two men who were friendly with both sets of sisters. Complainant’s sister testified that she had moved out of the house about three months prior to the incident and admitted that she had socialized with the tenant sisters and the men, but swore that though defendant had been present in the house while complainant lived there, defendant and complainant were never in each other’s presence.

I

Defendant’s motion for particulars as to the burglary count requested "that The People be required to inform [the defense] as to the specific crime which it will allege that the defendant intended to commit inside of the complainant’s premises”. He relies upon our holdings in People v Iannone (45 NY2d 589) and People v Fitzgerald (45 NY2d 574) as supporting his contention that denial of the requested particulars was an abuse of discretion to such a degree as to amount to reversible error. That reliance is misplaced.

Iannone and Fitzgerald held that indictments which stated no more than the bare elements of the crimes charged and in effect parroted the statute were sufficient, while noting that the defendants could discover the particulars of the crimes by requesting a bill of particulars. But the particulars to which a defendant indicted by such a document is entitled are the particulars of the crime charged, here burglary in the second degree, which requires only a knowing entry "with intent to commit a crime therein” (Penal Law, § 140.25; emphasis supplied). The predecessor sections of the Penal Law of 1909 were phrased in terms of "some crime” (§§ 402, 403), "a crime” (§ 404) and "any crime” (§ 406) and we are told by Professor Arnold Hechtman’s Practice Commentary (McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.20, p 37) that "Similarly the Revised Penal Law’s definition of burglary is satisfied if the intruder’s intent, existing at the time of the unlawful entry or remaining, is to commit any crime.”

Thus, to secure a conviction for burglary the State "need not establish what particular crime the intruder intended to commit” (Hechtman, loc. tit), nor is it necessary that the intended crime in fact be committed (id.). Nor is there any unfairness to a defendant in so holding, for as we pointed out in Iannone 45 NY2d, at p 598): "[T]he need to utilize the indictment as the means of resolving any double jeopardy inquiry has been considerably alleviated by the modern practice of maintaining full records of criminal proceedings which may be considered by subsequent courts. Similarly, the function of the indictment as the vehicle for assuring that the crime for which the defendant is tried is the one for which he was indicted by the Grand Jury is of less significance due to the practicability of using sources extraneous to the indictment should a challenge be made on those grounds (see CPL 210.30).”

The reason for the rule is pragmatic: intent is subjective, and must be established by proof of defendant’s conduct and other facts and circumstances (see McCourt v People, 64 NY 583, 586; People v Oliver, 4 AD2d 28, 31, affd 3 NY2d 684). If the State must prove an intent to commit a particular crime as distinct from the general intent to commit crime, the trial of a burglary indictment becomes an exercise in hairsplitting similar to that which, prior to 1942, engulfed the Penal Law’s larceny article in a sea of technicalities (see, e.g., People v Noblett, 244 NY 355; and Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 155.05, p 113).

Had the Legislature intended the result for which defendant argues it could easily in revising the Penal Law have inserted the word "specified” or the word "particular” between "a” and "crime”. It did not do so and the dissent points to nothing in the legislative history of the present provisions or in our prior holdings that requires such a result, relying instead on decision of Federal and State courts construing the statutes of other States. We have not in the past and do not now find those decisions persuasive.

Thus, in People v Gilligan (42 NY2d 969) we made clear that the People need prove only that defendant intended to commit a crime during his illegal presence in the building, for we there held that defendant’s intent to commit a crime on entering the building "could be inferred beyond a reasonable doubt from the circumstances of the breaking”. Similarly, People v Henderson (41 NY2d 233), citing People v Terry (43 AD2d 875), recognized that the intent necessary for burglary can be inferred from the circumstances of the entry itself. The out-of-State cases on which the dissent relies proceed from the premise that the burglary statute "is a proscription on entry of a dwelling with any one or more of a certain category of specific intents and not merely a proscription against entry with a generally evil or criminal intent” (United States v Thomas, 444 F2d 919, 921). If that premise be accepted, it follows that intent to commit a specific crime being an element of the offense, a due process problem might exist if the specific crime is not particularized. But unless there is read into the words "a crime” more than the Legislature has stated, intent to commit a specific crime is not an element, and the necessity for particulars, and with it the due process question, disappears.

The fallacy involved in the contrary view is pointed up by the suggestion of the dissent that "in the absence of indicia of a different criminal intent”, larceny may be specified as the intended crime (p 284). The cases cited in support of that proposition do clearly so hold, but they also make clear that the jury may infer from the circumstances of the entry if not explained to their satisfaction that larceny was intended (United States v Thomas, 444 F2d, at p 924, supra; State v Woodruff, 208 Iowa 236, 243; Commonwealth v Ronchetti, 333 Mass 78, 81) and that the rationale behind the rule is that the usual object of burglary is theft and that unless a presumption of larceny is indulged "the burglar caught without booty might escape the penalties of the law” (State v Woodruff, 208 Iowa, at pp 239-240, supra; United States v Thomas, 444 F2d, at p 924, supra). To hold that a specific not a general intent is required, but allow the specific intent to be proved by inferring it from the same evidence that would prove the general intent, is simply to indulge in circular reasoning.

Had defendant’s motion for particulars demanded the basis upon which the People would contend that he intended to commit a crime its denial may have been error (CPL 200.90). But the demand as framed asked only for information that was not a necessary element of burglary — the specific crime that defendant intended to commit — and its denial, therefore, was not an abuse of discretion. Moreover, there not only was clear evidence from which the jury could infer general intent to commit a crime, but it also is clear that defendant’s trial strategy was in no way affected. Defendant took no exception to the failure to charge intent to commit a specific crime; he did, however, consistent with his strategy of showing prior association, permission to enter and inferentially consent to intercourse, make a number of requests for a charge that the People had to prove beyond reasonable doubt that he had no license or privilege to enter complainant’s dwelling. There is, therefore, no basis for reversal in defendant’s first point.

II

Defendant argues that he was prejudiced by the rulings on his Sandoval motions by not being able to testify in a situation in which it was essentially the complainant’s word against his. He suggests that at the very least it was error to deny the motion at the end of his case after he had presented witnesses to establish that he and complainant, who denied ever having seen him before, had been present together at parties in the same house in which she lived.

In view of the nature of the offense and its age it would not have been error to suppress the disorderly conduct conviction, nor, though petit larceny is more closely related to veracity than disorderly conduct, to suppress the petit larceny charge. Both occurred when defendant was 13 years old. However, as we have made clear in People v Shields (46 NY2d 764, 765), "the exclusion of prior convictions is largely, if not completely, a matter of discretion which rests with the trial courts and fact-reviewing intermediate appellate courts” (see People v Duffy, 36 NY2d 258, 263, cert den 423 US 861). We cannot say that the ruling of the pretrial Judge or that of the Trial Judge denying the motion made just prior to trial constituted the clear abuse of discretion that would make it reversible error.

Nor can we say that the denial of the motions during trial were such an abuse. Though our Sandoval ruling permits motions both before and during trial when circumstances warrant, and it may be argued that the Trial Judge, therefore, denied the last two motions in too summary a fashion, it was under Sandoval defendant’s burden to demonstrate that the prejudicial effect of admission so far outweighed the probative worth of the evidence as to warrant its exclusion. The motions as made sought exclusion of the 1967, 1971 and 1975 convictions, counsel stating that he assumed that those from 1963 would not be used, and the only reason advanced for renewal was, as to the first that defendant’s case was about to begin, and as to the second that defendant’s two witnesses had testified. Under these circumstances, adherence to the ruling of the pretrial Judge is not such an exercise of discretion as, after affirmance by the Appellate Division, warrants reversal.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J.

(dissenting in part). I cannot join in the conclusion that a prosecutor need not comply with a request to furnish a bill of particulars when an indictment charging burglary does not itself particularize the crime which defendant allegedly intended to commit inside the building. Such holding is mandated neither by statute nor decisional law. Rather, I suggest it runs counter to fundamental principles of notice and fair play.

The majority interprets the statutory words "with intent to commit a crime” (Penal Law, § 140.25) as meaning that a burglar need possess only "the general intent to commit a crime.” I find the holding too conclusory by far, given that, on its face, the statute’s ambiguous phrase may be read as requiring either an intent to commit a crime in particular or, alternatively, a general intent to commit some act that would constitute a crime. To the resolution of this problem, the majority cites a commentator who simply reiterates the statute’s language and, without analysis, construes it to mean that the prosecutor " 'need not establish what particular crime the intruder intended to commit’ ” (p 279). Furthermore, the majority’s reliance on our brief memorandum in People v Gilligan (42 NY2d 969) as dispositive of this issue is misplaced inasmuch as that decision merely held that an intent to commit a crime could be inferred beyond a reasonable doubt from the circumstances of a breaking. By no means did it reach the question here, i.e., whether those circumstances had to be directed to the intent to commit a particular crime. To decide this issue on no more basis than this paucity of authority seems to me to minimize the importance of the problem.

In contrast, confronted with the precise question in the context of similarly worded burglary statutes, most courts have held indictments themselves insufficient for failure to specify the particular crime intended upon entry (see, e.g., United States v Thomas, 444 F2d 919, 922 [DC Cir]; Henson v People, 166 Col 428; State v Tippett, 270 NC 588; Taylor v Commonwealth, 207 Va 326; Adkins v State, 389 P2d 915 [Alaska]; State v Deedon, 56 Del 49; Bays v State, 240 Ind 37; Lowe v State, 163 Tex Cr Rep 578; Brumñeld v State, 206 Miss 506; People v Westerberg, 274 Mich 647; Hooks v State, 154 Tenn 43; People v Schiaffino, 73 Cal App 357; State v Doran, 99 Me 329; see, generally, 13 Am Jur 2d, Burglary, § 36, p 341).

Certainly, a rule requiring specificity is more consistent with modern pleading and discovery tenets. The view of a criminal trial as a game in which information may be disclosed or not as partisan strategy dictates has long ago been rejected in favor of disclosure of such information as may be necessary and useful in the preparation of the defense.

It is therefore regrettable that by a literal and hypertechnical construction of the burglary statute, the decision today sanctions the withholding from the defendant of a material element of the offense until the commencement of a trial or longer. The short and long of it is that the risk that a defendant may be unfairly surprised and, hence, rendered unable to effectively meet the prosecutor’s theory of the case is dramatically increased. (Cf. People v Thomas J. S., 61 AD2d 1018; People v Rivera, 56 AD2d 701; People v Taylor, 43 AD2d 519.) To take an example, a vagrant whose defense to a burglary charge is built around a claim that he entered a house meaning only to warm himself will surely suffer prejudice if the prosecutor, without prior notice, is permitted at trial to unexpectedly introduce proof that the ulterior crime was not larceny, but, say, arson.

Moreover, even before a trial ever commences, failure to require particularity may result in the Grand Jury returning an indictment with one object crime in mind while the prosecutor proceeds to try the case on evidence of a completely different one. The "looseness” that may thus ensue between the accusatory instrument and the proof at trial may carry serious double jeopardy ramifications. More readily apparent are the implications in terms of due process which may result from inadequate notice of the charges, a problem I thought had been obviated by our recent decisions in People v Iannone (45 NY2d 589) and People v Fitzgerald (45 NY2d 574), which conditioned the sufficiency of broadly drawn indictments upon the availability of a bill of particulars.

Against all this, the prosecutor contends that forcing him to reveal the underlying criminal intent "would allow burglars to slip unnecessarily through the fingers of the law by the simple expedient of contending that they intended to commit a crime different than that alleged.” But, granted the difficulty in designating the offense which an accused intended to commit upon entry where the ulterior crime remains unconsummated, elementary principles of fairness need not be abandoned. For, in such cases, where the investigation and theory of the prosecution embraces more than a single object offense, or alternate ones, the indictment may permissibly allege that the defendant intended to commit one or more crimes (United States v Thomas, 444 F2d 919, 922, supra). And, where an indictment, by tracking statutory language, fails to designate them, the information should be available on demand. Moreover, where the evidence of the ulterior crime may be indefinite, the circumstances of the breaking and entry will generally suffice to support, though not to compel, an inference that larceny was intended and, in the absence of indicia of a different criminal intent, may be so specified (State v Woodruff, 208 Iowa 236; Commonwealth v Ronchetti, 333 Mass 78).

In sum, where, as in People v Iannone (supra, at p 599), People v Fitzgerald (supra, at pp 579-580), or in the present case, an indictment merely parrots the general wording of a statute or is otherwise inadequately or opaquely drawn, the bill of particulars is elevated to a position of special importance and a defendant’s request therefor may not be lightly allowed to be refused.

Here, not only did the defendant make a timely request for a bill of particulars, he explicitly sought to be informed "as to the specific crime which [the People] will allege that the defendant intended to commit inside of the complainant’s premises”, a demand of which any reasonable reading would have taken to include all such crimes if the prosecution believed there was more than one. Without specification as to the ulterior crime or crimes it was his intent to commit upon entry, the defendant, as the majority’s factual recital itself points up, apparently assumed from the rape charge in the indictment that the People would proceed upon the theory that he had an intent to commit rape and, accordingly, he directed his attention to showing that he had no such motive; though found to have engaged in coercive conduct, he succeeded in this goal as indicated by his acquittal on the far more serious charge of rape, offering his own testimony and other proofs of his prior relationship with the occupants of the house for that purpose. Having failed to even sustain the rape charge, which they did not claim was an object of the breaking, the People now belatedly fall back on the theory that defendant was possessed of larcenous intent. Not surprisingly, the trial court, somewhat confused, alternatively instructed the jury that the intent underlying the burglary was an intent to rape or to commit some other undefined crime. In the end, what this all added up to is that the denial of the bill of particulars resulted in the omission of an element critical to the preparation of the defense to the burglary charge. As a consequence, the defendant, instead of being fairly informed of the specific charge against him, was visited impermissibly, I believe, with the prosecution of a criminal charge whose basis in significant part was mired in mystery.

Accordingly, while the evidence might well have sustained the lesser included charge of criminal trespass (Penal Law, § 140.15), the conviction for second degree burglary should be overturned. I would therefore modify the order by affirming the conviction for coercion and otherwise reversing.

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur with Judge Meyer; Judge Fuchsberg dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Order affirmed.

      . (People v Sandoval, 34 NY2d 371.)

      . Removal of a screen from a window located along the darkened alleyway between the houses and concealed by shrubs.

      . His acquittal of the charge of rape does not indicate otherwise, as the dissent suggests, for he was convicted of the lesser included offense of coercion in the second degree. Thus, the jury found compulsion not consent (see Penal Law, § 135.60). By its burglary conviction it also found that defendant entered without leave for the purpose of committing a crime, which is all the Penal Law requires.