author: Cooke, J.

text:
    The People of the State of New York, Appellant, v Philip Greer, Respondent.
    Argued June 10, 1977;
    decided July 7, 1977

      Edward C Cosgrave, District Attorney (John J. DeFranks of counsel), for appellant.

      Rosalie M. Stoll and Nathaniel A. Barrell for respondent.
   Cooke, J.

Shortly after one thirty on the morning of July 26, 1974 complainant drove her car to a point in front of her Buffalo apartment where she fell asleep behind the wheel. She testified as to having previously consumed five or six drinks. An hour or so later she was awakened by defendant Greer who inquired if she was all right or needed help. When defendant stated he was going to South Park and was walking, complainant offered a ride. At first he drove and, when he pulled in a driveway and got out of the vehicle, she moved to the driver’s side. Upon his re-entry into the car, she followed his directions and after a while realized they were just going in circles and not going any place. He asked her to stop the car. She was scared. It was in a nonresidential area near a warehouse. He put the car in parking gear and started to get out and, when she placed it in drive, he got back in, put it in park and took the keys. He started out again and, when she tried to lock the door, he grabbed it and got back in the car. When she beeped the horn, he grabbed her arm, twisted it and dragged her from the car. When she screamed, he told her not to make him mad. He had his hand on her mouth, put it on her throat and repeated his admonition not to make him mad. She was dragged 40 to 50 feet to a truck-docking area where she was pushed to the ground. She talked to him and, when she asked him about God, he said he was Mosely whom she knew was connected with rape and murder. Defendant then pulled off her shorts and had intercourse with her.

The complainant testified that during the ordeal she was afraid for her life and that all she thought about was dying. Seeing lights, she called for help and a police officer came to the scene. Buffalo Police Lieutenant Vaccaro testified: that while on a routine patrol he saw an automobile in the middle of Indiana Street in an industrial and vacant lot area; that the door on the passenger side was open with a woman’s sandal in the street near the open door, another in the car and a woman’s purse 30 or 40 feet down the street; that he heard a woman calling for help and, in turning his flashlight, saw a man on the ground against a loading platform with his trousers down around his ankles; that as defendant arose, complainant was seen beneath him with no clothing from the waist down; that when Vaccaro with gun in hand asked, "What’s going on here?”, defendant replied, "this is my woman”; that the officer asked her name and Greer said, "I don’t know”; and it was observed that the woman was crying, her face was mud or tear-streaked and she was covered with dirt.

Defendant presented a different testimonial version. He took the stand and related: that he was 21 years of age, five feet 10 V2 inches tall and weighed 238 pounds; that about 3 o’clock in the morning of the day in question he noticed a woman whom he knew as Annie in an automobile on Elmwood Avenue; that complainant said she was waiting for someone and asked defendant to get in the car; that after talking a bit he asked her to drive him home to which she agreed; that at first he drove and then, after stopping to allow him to go to a friend’s house on Ferry Street, she drove, proceeding in time on Main Street past two police stations; that eventually they went up Indiana Street where she stopped the car; that she talked about her boyfriend with whom she had had an argument; that he left the car to void and upon returning found complainant standing outside the vehicle; that they talked and kissed and walked over to a truck-loading area where he put his jacket on the ground; that they were having intercourse on the jacket when the police arrived; that he told the police he knew the girl, that her name was Annie and that he did not know her name was Jeanne until charges were preferred; that he seen her on three prior occasions, on two of which he had had relations with her; and that he never told her his name was Mosely.

Based on this proof, a jury found defendant guilty of rape in the first degree, for which crime he had been indicted. The Appellate Division in turn unanimously reversed the conviction and granted a new trial because of errors it found. That court was in disagreement, however, as to whether coercion in the second degree should have been charged as a lesser included crime, the majority being of the opinion that the trial court’s refusal to so charge constituted reversible error.

By statute, "[i]n submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50, subd 1). A "lesser included offense” is defined in this fashion: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense’ ” (CPL 1.20, subd 37). Thus, before a jury is charged concerning a lesser included offense, two criteria must exist: (1) the offense being scrutinized for possible submission must meet the said statutory definition of a "lesser included offense,” and (2) there must be a reasonable view of the evidence which would support a finding that defendant committed the lesser offense but not the greater (People v Johnson, 39 NY2d 364, 367).

For our discussion, "[a] male is guilty of rape in the first degree when he engages in sexual intercourse with a female: 1. By forcible compulsion” (Penal Law, § 130.35, subd 1). Rape in the first degree is a class B felony. "Forcible compulsion” means "physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear o/[ 1] immediate death or [2] serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped” (Penal Law, § 130.00, subd 8; emphasis added). On the other hand, so far as pertinent, a person is guilty of the class A misdemeanor of coercion in the second degree "when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in * * * by means of instilling in him a fear that, if the demand is not complied with, the actor or another will: 1. Cause physical injury to a person” (Penal Law, § 135.60, subd 1; emphasis added).

Here, the prosecution presented evidence of forcible compulsion under two theories. The first was under the category of physical force by proof of acts such as taking the car keys, twisting her arm, putting his hand on her mouth and throat, dragging her 40 or 50 feet, pushing her to the ground and pulling off her shorts. The second was that the victim’s resistance was overcome by a threat or threats which placed her in fear of immediate death. Under the first theory, where the forcible compulsion consists of physical force which overcomes earnest resistance, it is not essential that the victim be placed in fear of any sort of harm in order that the charge of rape in the first degree be sustained. In such instance, coercion would not be a lesser included offense of rape in the first degree, so structured on a basis of physical force. It is not impossible to commit the crime of rape in the first degree, based upon physical force overcoming earnest resistance, without concomitantly committing, by the same conduct, the crime of coercion in the second degree (see CPL 1.20, subd 37).

As to the prosecution’s second theory of forcible rape, that the intercourse was compelled by a threat which placed the victim in fear of death, the only proof introduced regarding the victim’s state of mind, other than defendant’s version of consent, was that defendant stated to her that he was Mosely, a person she knew to be connected with rape and murder, as well as her testimony that she was afraid for her life and that all she thought about was dying. Upon this proof it was not a question of "serious physical injury” as opposed to "physical injury.” We need go no further here than to hold that there was no reasonable view of the evidence, in respect to the fear the victim was suffering, which would support a finding that defendant committed coercion in the second degree but not rape in the first degree.

Defendant contends that certain prejudicial errors were committed during his cross-examination. He was asked whether he and three others "jumped” a fellow named Dantonio and beat him up when he refused to give them money, to which he replied in the negative. At a conference between the trial court and counsel, attended by defendant, the Assistant District Attorney revealed a series of questions he intended to put to defendant when cross-examination resumed. Defense attorney’s request for a "full hearing” to determine whether the questions would be prejudicial was not granted. Upon returning to the stand, defendant again denied the Dantonio attempted robbery, posed in a somewhat different question. He denied possession at a certain address of a concealed and dangerous weapon. He admitted on March 18, 1969 that he stole an automobile but denied that on the same day he walked into an apartment, grabbed scissors, ripped a blouse off one girl and forced that .young lady and her companion into bed. Defendant urges that this cross-examination was designed to establish guilt by the implication of previous involvement in similar crimes and that the graphic nature of the questions and the suggestive manner of the prosecutor’s approach belie any claim that the inquiries were made in an effort to impeach defendant’s credibility.

Scarcely necessary for repetition is the rule that a defendant who chooses to testify may be cross-examined concerning any immoral, vicious or criminal acts of his life which have a bearing on his credibility as a witness, provided the cross-examiner questions in good faith and upon a reasonable basis in fact, the law being inflexibly set against questioning as to such acts when the obvious intent is to show from character or experience a propensity to commit the crime for which defendant is on trial (People v Duffy, 36 NY2d 258, 262, cert den 423 US 861). The instant inquiries went to the witness’ disposition or willingness to place self-interest ahead of principle and society, as well as to his honesty and integrity (see People v Sandoval, 34 NY2d 371, 377). The good faith and reasonable basis of the prosecuting official were substantially demonstrated at the conference attended by the court, counsel and defendant whereat said official asserted that the Dantonio encounter and the weapon possession were the subject of Family Court determinations and that the automobile theft resulted in a youthful offender adjudication. Although it would be impermissible to use a youthful offender or juvenile delinquency adjudication to impeach the illegal or immoral acts underlying such adjudications may be employed for such a purpose (People v Duffy, 36 NY2d 258, 264, supra; Fisch, New York Evidence, § 460, p 266; cf. People v Rahming, 26 NY2d 411, 419). Defendant could have made an application for a Sandoval ruling, in advance of trial, to assist in deciding whether to take the stand, but chose not to do so (People v Sandoval, 34 NY2d 371, 375, supra). The trial court did not abuse the discretion vested in it, in determining the extent of the cross-examination bearing on defendant’s credibility, and the exercise of that discretion should not be disturbed (People v Schwartzman, 24 NY2d 241, 245, cert den 396 US 846).

The most difficult problem concerns the reception into evidence, over objection, of the testimony of the police officer that, after defendant said, "this is my woman,” the officer asked him her name and defendant replied that he did not know it. The District Attorney had served a notice specifying his intention to offer proof that "Defendant claimed that complainant was 'his woman’ ” but the notice did not indicate an intention to submit testimony that defendant could not or did not tell her name. Defendant urges that this admission as to inability to name the complainant was inadmissible as being involuntary, made without being informed of his Mi randa rights, and as having been received without a hearing as to voluntariness, a demand for which was made during trial.

"[A] police officer may stop a person in a public place located within the geographical area of such officer’s employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a class A misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct” (CPL 140.50, subd 1). Under the proof, Lieutenant Vaccaro was on a routine patrol at about four in the morning, while it was dark, and came upon a vehicle with its door open in the middle of a street in an industrial and empty lot area. A woman’s sandal and purse were strewn nearby on the street. He heard a call for help. The officer approached the defendant. With gun and flashlight drawn the officer asked, "what’s going on here” and received the reply, "this is my woman.” This led to the question as to her name, to which defendant responded, "I don’t know.” This was normal police investigative procedure, it was cursory and, most important, within the statutorily permissible demand for "an explanation of conduct.” Both questions were asked as part of Vaccaro’s initial, on-the-scene investigation. There was the possibility, as defendant claimed on trial, that the circumstances were compatible with innocence as well as guilt. The suspicious circumstances might well have been explained to the officer’s satisfaction, resulting in his withdrawal from the scene, but in any event were sufficient to require him to seek an explanation.

The situation here bears striking resemblance to that in People v Huffman (41 NY2d 29), where police officers on an early morning tour of duty observed several individuals standing on steps leading to the back door of a delicatessen. When the police vehicle approached, the group ran and defendant went behind some bushes. The officers left the car and one officer, with his revolver drawn but held at his side and pointed down, and the other, with his holster clasp-loosened and his hand on his bolstered weapon, ordered defendant, who was looking at one of the officers, to come out. When defendant emerged with empty hands in the air, the officers secured their weapons and defendant was asked, "What are you doing back here?”, to which defendant replied, "We were trying to break into that store.” It was held that such an admission, although made before preinterrogation warnings, was admissible. Although the presence of drawn and reholstered weapons is indicative of a "police dominated” atmosphere which could affect defendant’s will to resist and although by drawing their weapons on defendant and thereby obtaining his acquiescence to their authority the officers gained custody and control of the defendant, it was concluded that the single question propounded to defendant did not constitute a process of interrogation to which Miranda is applicable (p 34). The conduct of defendant was viewed as highly suspicious and the question was held to be designed to clarify the nature of the situation confronted, rather than to coerce a statement (p 34).

Here, too, the circumstances with which Officer Vaccaro was confronted were bound to arouse suspicion. In asking his two questions, he was merely following good police practice by seeking an explanation of the situation. The fact that two simple questions were asked instead of the one in Huffman is legally insignificant, since the answer given to the first was not responsive and meaningful clarification or further explanation was required. It would be ludicrous to hold that a police officer in such a predicament was limited to but one question in his demand for an explanation, and section 140.50 does not so circumscribe.

A vital distinction exists between Huffman and this case, however, since there a suppression hearing as to defendant’s oral and written admissions was conducted. Obviously, defendant had been notified of the admissions. CPL 710.30 (subd 1) provides in part: "Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20 * * * they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.” The obvious purpose of the statute is to afford a defendant adequate time in preparing his case in respect to the voluntariness of a confession or admission (People v Ross, 21 NY2d 258, 262). Thus, as the Appellate Division observed, the notice of intention to offer evidence need not be served upon the defendant where there is no question of voluntariness (see CPL 710.20, subd 3). Since the notice of intention served by the prosecution did not include any reference to an admission by defendant that he did not know the victim’s name, defendant’s attorney objected to the introduction of such testimony and asked that "a Huntley hearing * * * be given to my client at this time to determine the voluntariness of those statements.” In the colloquy between the trial court and counsel, no statements indicating good cause for the failure to include defendant’s admission in the notice of intention were advanced. The objection was overruled and the requested hearing in effect denied. Only upon a showing of good cause may the court permit service of the notice during trial with a reasonable opportunity to make a suppression motion during trial (CPL 710.30, subd 2) and, if good cause is not shown, a failure to give the required notice of intention before trial mandates exclusion of the statement or statements (People v Briggs, 38 NY2d 319, 323-324). In view of the deficiency of the notice and the denial of a suppression hearing, it was error, therefore, to have admitted evidence of the inculpatory statement by defendant that he did not know the name of the woman with whom he had just engaged in sexual intercourse. In the context of this case, in which defendant admitted the intercourse but claimed consent by the woman as well as prior intimacies with her, such testimony was crucial.

The order of the Appellate Division should be affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Cooke; Chief Judge Breitel concurs in result on the opinion by Mr. Justice G. Robert Wither at the Appellate Division.

Order affirmed.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v George H. Arce, Appellant. The People of the State of New York, Respondent, v Efrain Nieto Camara, Appellant.
    Argued June 1, 1977;
    decided July 7, 1977

      Thomas N. O’Hara for appellant in the first above-entitled action.

      Kenneth Gribetz, District Attorney (William Frank and Thomas K Urell of counsel), for respondent in the first above-entitled action.

      Amanda Potterfield and Pierce Gerety, Jr., for appellant in the second above-entitled action.

      Kenneth Gribetz, District Attorney (William Frank and Thomas E. Urell of counsel), for respondent in the second above-entitled action.
   Fuchsberg, J.

George Arce and Efrain Nieto Camara each stand convicted of two counts of murder and one count of the felony of conspiracy in the first degree following the fatal shooting of John Morales and Manuel Carrero on the Palisades Parkway in Orangeburg, Rockland County, early in the morning of Monday, April 30, 1973. The People contended that the murders had been committed for hire, the shooting having been executed by Camara and one Rafael Martinez Perez at the instance of Arce, who had agreed to pay the gunmen $10,000 for the deadly deed. Shortly before trial, Perez, originally indicted along with the other two, entered a plea of guilty to manslaughter and turned State’s evidence.

The Appellate Division affirmed the conviction in each case. On this appeal, defendants rely on a host of alleged trial errors and contend that they were deprived of their fundamental right to a fair trial. Among the contentions are that the trial court erred in its rulings and charge on corroboration, in failing to grant a mistrial because Camara was asked whether he had remained silent at the time of his arrest, in participating in the cross-examination of Perez as to the motivations for his entry of a plea, and with respect to various incidents of prosecutorial misconduct. After reviewing each of them, we find that none support a reversal.

Some exposition of the facts will be helpful to an understanding of our legal analysis. We note first that Arce, who was not present at the time and place of the actual shooting, did not testify. Camara did take the stand; he and Perez testified most fully. They agreed that, soon after 6 a.m. on the morning of the murders, Camara and Perez drove together in the latter’s car to Rockland County from the southern part of The Bronx, where each of them resided and had known one another for some years, that they did so pursuant to an arrangement they had made on the previous evening, and that there came a time when they parked at the Mt. Ivy Diner at a point adjacent to Exit 11 of the Palisades Parkway from which they could view southbound parkway traffic. Nor do they differ on the fact that, as soon as a blue Mustang occupied by Morales and Carrero drove by, Camara and Perez entered the highway and took chase after the Morales car until Perez caused the two to collide. They also both testified that right after the impact both cars pulled over to the shoulder of the road, whereupon, their occupants having exited, Morales, the driver of the Mustang, was shot to death and that Carrera, his passenger, suffered a similar fate as he was attempting to run away. They each also told the Judge and jury that no cars other than these two and no men other thamthese four played any direct part in this episode and that Perez and Camara were still together when, having abandoned their damaged car and discarded the guns used in the killings, they were apprehended by the police while attempting to leave the area by foot.

From this point on the tales of Camara and Perez diverge. Perez testified as follows: The first time he ever met Arce was on Sunday, the day before the shooting, when Camara, whom he had known as a neighbor for some years, introduced him to Arce. All three went to a neighborhood Kentucky Fried Chicken store and a gas station. At Arce’s request Perez agreed to use his car to drive Camara "upstate” the next morning. Before they separated, Arce informed Perez that his destination the next morning was to be the diner off Palisades Parkway Exit 11, where Arce said he would meet Camara and Perez. The next morning, when the latter arrived there, they found Arce and a man unknown to Perez waiting for them. Camara had explained to Perez that Arce was going to pay Camara $10,000 "to eliminate somebody” and that Camara would give Perez $4,000 for driving the car. When they met Arce at the diner, he told them "the guy I want you to kill” would be a man who would soon be driving by in a blue Mustang. Shortly thereafter he pointed out a passing Mustang as the one he intended. Perez took off after it, Camara telling him to "catch up” and, when they were behind the other car, handed him a gun, saying "just in case”. At Camara’s instructions, Perez caused the collision, after which both cars stopped and their occupants alighted. Perez was still next to his own car when he observed the driver of the Mustang checking his car. At that point Camara pulled out a gun, Perez heard a shot and Camara commanded him to "shoot the other man”, which Perez did.

Camara’s version did not square with that of Perez. He pictured himself as an innocent bystander. He denied ever having met Arce until after he was arrested, insisting that he found himself in the car the morning of the shooting because Perez had offered to drive him to a Rockland County factory to try to find a job, though it turns out that he already had one. He admitted stopping at the diner, but denies seeing Arce there. According to him, when they left the diner area Perez’ car, which had been speeding, collided with the blue car, which had slowed down unexpectedly. An argument then ensued between the two drivers, in the course of which the Mustang’s driver (Morales) drew a gun and Perez "jumped him”. He went on to relate how during the struggle, "the gun went off two or three times”, after which Perez pursued Morales’ companion, Carrero, and shot him too.

In short, according to Camara, he had possessed no gun, planned no murder, shot no one and the episode, so far as he was concerned, was a completely unexpected event for which he was blameless. ,His defense consisted solely of his testimony. He offered no explanation of why, if the shooting had indeed been precipitated by Morales’ resort to a gun, Perez, who had already involved Arce and obtained the District Attorney’s consent to his plea to a lesser offense, should have found it necessary not only to implicate Camara but to relate a false version contrary to his own self-interest.

Be that as it may, Camara’s main difficulty was that, aside from any inherent improbabilities in his story, there was overwhelming proof to contradict it. For one thing, Henry Goldman, a motorist in the immediate vicinity of the events, testified that he observed that Morales was not engaged in a fight but merely inspecting the rear of his car when a shot rang out and Morales’ body convulsed "as if hit by gunfire”. Another and equally disinterested motorist, Rocco Marino, provided confirmatory testimony. Two witnesses other than Perez testified that they too had seen Camara with Arce the evening before the homicides. One of them, Feliz Burgos, a friend of Arce’s for about 10 years, related that he had seen Arce, Perez and Camara together the night before, as had his fiancee, Minerva Cuadros, an employee at the fast food place where the three men went to purchase chicken. Burgos had driven to the fast food place to take her home from work that night. The car in which Camara was seen by them, a Chevelle Malibu, was later identified as a vehicle rented by Arce.

So far as the case against Arce is concerned, additional proof from a licensed wholesale firearms company and from a female acquaintance of Arce established that the gun used to kill Morales had been purchased by Arce and delivered to him through the friend’s address in Maryland. Burgos, who testified under a grant of immunity, also told the jury that, some months before the killings, Arce had confided in him that he "was going to get [Morales]”.

With these facts as background, we now turn first to the questions involving the accomplice testimony. Perez, by his own admission one of the actual perpetrators of the crime, was an accomplice and the trial court so charged as a matter of law. The trial court also held that his testimony was corroborated sufficiently for the case against Arce to go to the jury. Having excepted to that ruling, Arce now assigns it as error. Moreover, Camara now urges that the trial court also erred in refusing his request to charge that Burgos too was an accomplice as a matter of law. We do not agree with either of these contentions.

The statutory standard is that a "defendant may not be convicted * * * upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with [its] commission” (CPL 60.22, subd 1). It need not prove the commission of the crime. It is enough if the evidence shown to connect the defendant with the crime satisfies the jury that the accomplice is telling the truth (People v Daniels, 37 NY2d 624, 629-630, citing People v Malizia, 4 NY2d 22, 27, and People v Dixon, 231 NY 111, 116).

As to Perez’ testimony, the corroboration here was more than sufficient to meet that test. Indeed, it can be said to have come from several different sources. The proof of the direct connection between the gun used in the commission of the crime and Arce, the evidence that Arce had rented the car in which he was seen with Perez and Camara the evening before the shooting and the testimony of Minnie Cuadros each would have sufficed even without the testimony of Burgos that he saw Arce, Camara and Perez together the night before the murders and that Arce previously had vowed to "get” Morales.

As to Burgos’ status, the question under the statutory definition of an accomplice was whether he could reasonably be considered to have participated in "(a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22). Burgos, long-time friend of Arce, admitted that he knew of Arce’s intentions with regard to Morales. Perez testified that the man with Arce at the diner when the intended victims were pointed out looked like Burgos. It also developed that Burgos had told his fianceé that he was worried about being questioned about the shootings. However, he vehemently denied that he was the man at the diner. Different inferences could reasonably be drawn from this disputed testimony and therefore whether he was an accomplice was a question of fact (People v Basch, 36 NY2d 154, 157).

In submitting that issue to the jury, the trial court advised it that if it found "that any other witness [other than Perez] was in any way concerned in or aided or abetted in any way in the commission of the crimes or any of them, he would be an accomplice. I will leave it to the jury to determine whether any other witness was an accomplice”. Camara takes the position that the failure to mention Burgos by name in this instruction was error. In «light of the fact that he was the only witness other than Perez to whom the question could possibly have applied, we conclude it was not prejudicial.

We turn now to the claim that the prosecution’s attempt on cross-examination to elicit the fact that Camara had been silent at the time of his arrest was violative of his right to due process. Earlier, counsel for the codefendant Arce had put the following question to Camara: "When you were picked up by the police did you tell the police about the shootings.” An objection was overruled and Camara answered "No”. But when the Assistant District Attorney later put a similar question, the court sustained the objection with an immediate curative instruction, in which he said "[W]hen a person is picked up there is no requirement under the law that he say anything to a police officer or anyone else, and no unfavorable inferences are to be taken against him by reason of his silence because, as I indicated to you, the defendant does not have to prove or disprove anything. The law does not require that he speak at all and the fact that he does not speak cannot be held against him.”

The fact that a defendant is silent at the time of arrest may not be used to impeach him at trial (Doyle v Ohio, 426 US 610). The Assistant District Attorney’s question was therefore improper. Even unanswered, it served to bring Camara’s silence to the attention of the jury. Nor had the door to the impropriety been opened because the court had allowed the question when put on behalf of the codefendant.

However, though all trials must be fair, very few are perfect and many imperfections may be cured or alleviated by a wise and timely curative course on the part of the court. It may be less fact than fiction to suppose that an instruction to erase a prejudicial matter from a mind that has once perceived it, no matter how conscientiously carried out, can be fully accomplished. But it would also be a mistake to assume that, in the give and take of a trial of considerable length, it will not eliminate the prejudice sufficiently to assure a fair trial in many circumstances (cf. People v Ashwal, 39 NY2d 105, 111).

In the present case, we cannot say that it did not have the intended curative effect. Unlike Doyle (supra), where the objection was overruled, the cross-examination permitted and the answer was the basis for argument to the jury, the curative instruction here immediately followed upon the sustaining of an objection, it was simple and direct, the tone of its languge did not serve to overemphasize the question and the matter never came up again.

As to the Trial Judge’s interruption of Camara’s counsel’s cross-examination of Perez on the expectations and commitments that may have influenced his plea, we first quote the testimony elicited:

By defendant’s counsel: "Do you recognize, Mr. Perez, that the maximum sentence that could be imposed upon you under our law under your plea is 25 years in jail? Do you recognize that? Do you know that?
"a: Yes
"the court: In fact, you were told that by me at the time you accepted your plea; isn’t that correct?
"the witness (Perez): Yes
"the court: And I also told you what the minimum was?
"the witness: Right, sir.
"the court: That you could get a minimum of eight and a third years?
"the witness: Right, sir.
"the court: And I also told you at that time that I was making no promises to you and you couldn’t expect an easy sentence. I believe my words were?
"the witness: That is correct. Your Honor.
"the court: However, I would take into consideration the fact that you cooperated. I indicated that to you, as well as anything else that might be favorable to you in any presentence report that I received?
"the witness: That is correct.”

It goes without saying that the existence of a promise of leniency or other consideration made to a self-confessed criminal can weigh heavily in the assessment of his credibility as a witness. The deprivation or serious circumscription of a co-defendant’s right to cross-examine on that issue therefore can be prejudicial error (People v Roth, 30 NY2d 99). However, that is not what occurred here. The court’s interjection of its questions did not stop Camara’s counsel from returning to his cross-examination on that issue so that he might delve into the motivations for the plea. Nor did the court try to do so. Specifically, in a series of leading questions, counsel went on to probe and, in fact, secured admissions, among other things, of the witness’ consciousness of the role of the Parole Board in determining the ultimate length of his sentence and that either his lawyer or the District Attorney had explained to him that his co-operation at trial would be a factor that could be taken into account for that purpose.

Furthermore, the Trial Judge did not attempt to express or otherwise indicate a personal opinion that the witness was worthy or unworthy of belief. Nor did he indicate any penchant for overinterrogation such as might create an aura of prejudice. To the contrary, his inquiry, direct and matter of fact, was confined solely to facts of which the Judge had personal and official knowledge. His questions, put at a time when they were relevant to the ongoing inquiry on that subject, obviously were intended to clear up any possible misconceptions. (See ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge, § 5.6 [Approved Draft, 1972].)

We focus now on appellant’s charges of prosecutorial misconduct consisting, in the main, of the putting of patently objectionable questions and of the making of prejudicial comments on summation.

Defendant’s complaint is not without cause. Time after time, the Assistant District Attorney here asked objectionable questions in testimonial rather than interrogational form. The vice, of course, was that, though the court would sustain an objection, the very putting of the question served to bring inadmissible matter to the attention of the triers of the facts. Among other consequences of such tactics is that opposing counsel, who unwittingly may thus be forced into making repeated objections, are placed in a position where they appear to be trying to keep things from the jury. It also serves to communicate impressions by innuendo rather than by proof, a practice to be condemned (See 6 Wigmore, Evidence [Chad rev], § 1808). When resorted to by a public prosecutor, whose position conveys an imprimatur of authority, the injury it does to both the case at hand and the administration of justice generally may be all the greater (cf. People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267, 269).

Fortunately, however, the trial court did not ignore this situation. It repeatedly sustained the objections. And, by curative instructions given in graphic and unmistakable manner, the Trial Judge tried to dissipate the effect of the unanswered questions. For instance, at one point, he told the jury:

I will tell them, as I told the jury before, the mere fact that a question is asked in and of itself is not evidence. It is the question plus the answer. Additionally, as I indicated, if I were asked whether I owned an automobile and even if I answered no, there is no inference that I owned an automobile merely because that question was asked. "the court:
I went through it many times before. "the court:
I will tell the jury too, in connection with asking a question of Mr. Lynch back there, when did you stop beating your wife, that does not mean you were beating your wife just by asking the question.” "the court:

As far as the prosecutor’s prejudicial comments on summation are concerned, they included vouching, calumny (see ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, § 5.8, and comments thereto [Approved Draft, 1971]) and other rhetorical excesses by which defendants claim to have been aggrieved. However, except for a sentence in which the defendants were referred to as "cold-blooded killers”, no objection was taken to any of these and so nothing is preserved for our review (see People v Robinson, 36 NY2d 224, 228).

Moreover, the prosecutor’s remarks did not occur in a vacuum; the "cold-blooded killers” phrase, for instance, was preceded by the use of a similar expression by one of the defense counsel (cf. People v Marks, 6 NY2d 67, 77). In further amelioration of possible prejudice to the defendants, when the prosecutor used it, the court interrupted, characterized the statement as improper and directed the jury to disregard it (cf. People v Gonzalez, 38 NY2d 208, 210). It also must be remembered that the force of what might otherwise be a shocking term is lost in a case where neither of the only direct participants, Perez or Camara, denied the deliberate and violent nature of the crimes, but merely disputed whether one or the other, or both, were its executioners.

Finally, we note that, having examined each of the defendants’ other contentions which were preserved for appellate review, we find each of them without merit. On consideration of the whole record, we also find that defendants have not been deprived of their fundamental right to a fair trial (cf. People v Patterson, 39 NY2d 288, 296, affd 432 US 197).

Accordingly, the order of the Appellate Division should be affirmed in each case.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

In each case: Order affirmed.


author: Wachtler, J.

text:
    In the Matter of Basis Kalamis, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent. In the Matter of Gerard A. Collins, Appellant, v Leon J. Vincent, as Superintendent of Green Haven Correctional Facility, Respondent. In the Matter of Richard Bush, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Argued June 7, 1977;
    decided July 5, 1977

      Joseph A. Shifflett, Nathaniel A. Barrell and Eric L. Glazer for appellant in the first above-entitled proceeding.

      Louis J. Lefkowitz, Attorney-General (Frederick R. Walsh and Jean M. Coon of counsel), for respondent in the first above-entitled proceeding.

      Sally Mendola, William E. Hellerstein and Donald H. Zuckerman for appellant in the second above-entitled proceeding.

      Louis J. Lefkowitz, Attorney-General (Joseph W. Henneberry and Samuel A. Hirshowitz of counsel), for respondent in the second above-entitled proceeding.

      Joseph A. Shifñett, Nathaniel A. Barrell and Eric L. Glazer for appellant in the third above-entitled proceeding.

      Louis J. Lefkowitz, Attorney-General (Martin J. Siegel and Jean M. Coon of counsel), for respondent in the third above-entitled proceeding.
   Wachtler, J.

In these three article 78 proceedings the petitioners, who are inmates at State correctional institutions, seek credit for jail time previously spent in local detention facilities. In each case the petitioner was sentenced on one charge and then was either held in a local facility or returned to a local facility to await disposition of another charge or charges which ultimately resulted in one or more additional sentences. The question common to all the appeals is whether the time spent in custody between the first sentence and a later one should be credited against the later sentence pursuant to subdivision 3 of section 70.30 of the Penal Law. In the Collins case the petitioner also seeks credit, against the second sentence, for time spent in a local facility prior to the first sentence.

The Kalamis case

In the first appeal Matter of Kalamis v Smith (51 AD2d 859), the petitioner was charged with committing various crimes in three different counties. On November 14, 1973 the Nassau County Court sentenced him to 0 to 5 years for attempted robbery in the first degree. On January 2, 1974, while petitioner was still in the Nassau County jail, Suffolk County filed a detainer warrant against him. He was later sent to New York County where, on January 16, 1974 he was sentenced to 0 to 4 years for attempted burglary in the third degree. This sentence was to run concurrently with the first.

On January 30, 1974 he was sent to the State correctional institution at Green Haven. On February 14 he was transferred to the State institution at Clinton. Several days later (Feb. 20) he was sent to the Suffolk County jail to await disposition of the Suffolk County charge. He remained in that jail until December 9, 1974 when he was sentenced to 0 to 5 years for robbery in the third degree. This sentence is to run concurrently with the first two. He was returned to State prison on December 19, 1974.

Thus the petitioner is now serving three indeterminate sentences, imposed by three different courts, at three different times. However, because the sentences are to run concurrently "the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run” (Penal Law, § 70.30, subd 1, par [a]). As a result the. controlling sentence, that is, the one with the latest expiration date, is the Suffolk County sentence imposed on December 9, 1974.

Petitioner claims that he was in constructive custody of the Suffolk County authorities from January 2, 1974, the date the Suffolk County warrant was filed, until December 19, 1974, the date he was returned to State prison and thus should have this time credited against the controlling Suffolk County sentence. The courts below agreed that 28 days of this time (Jan. 2 to Jan. 30, 1974) should be credited to the Suffolk County sentence. On this appeal petitioner claims that the remainder of this time should be credited against this sentence pursuant to subdivision 3 of section 70.30 of the Penal Law.

The relevant portion of subdivision 3 of section 70.30 of the Penal Law states:

"The maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. * * * The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject. Where the charge or charges culminates in more than one sentence, the credit shall be applied as follows:
"(a) If the sentences run concurrently, the credit shall be applied against each such sentence”.

The primary purpose of the statute is to give a person convicted of a crime, credit for the time he has spent in local custody awaiting disposition of the charge. It is also intended to give him credit for the time spent in a local facility after pronouncement of sentence, since an indeterminate sentence does not formally commence until the person is received at a State institution (Penal Law, § 70.30, subd 1), and a definite sentence does not formally commence until he is received at the institution named in the committment (Penal Law, § 70.30, subd 2). As a general rule then a person who has been held in local custody, on a certain charge, prior to the formal commencement of his sentence on that charge, is entitled to credit the time previously spent in the local facility before and after sentence was pronounced. However, even though a person has been held in local custody on a certain charge, he is not entitled to have the time credited against the sentence imposed on that charge if it has already been credited to a "previously imposed sentence.”

The application of these principles becomes complicated when the petitioner has been held on several charges which result in multiple sentences. The commission staff which drafted the statute noted that under prior law there was no "rule with respect to the manner of calculating jail time when multiple sentences are imposed” (see Commission Staff Notes to the 1964 Draft of the Proposed Penal Code, § 30.30, subd 3 [no Penal Law, § 70.30, subd 3]). Thus they included, as a "new feature”, the requirement that jail time should be credited when the charges culminate in more than one sentence and further provided that the time shall be credited against each such sentence if the sentences run concurrently. But when, as here, the concurrent sentences have been imposed at different times, can the time between the first and second sentence be credited to the second if it has already been credited to the first? Under these circumstances it would seem that the new general rule regarding multiple sentences is cut short by the specific exception relating to "previously imposed” sentences.

Here the Appellate Division held that once Kalamis formally commenced service of the first two sentences at State prison on January 30, 1974 all the time subsequently spent in custody, whether in State prison or the Suffolk County jail, was being credited against the prior sentences and could not be credited against the Suffolk County sentence. They held that this is required by "the clear mandate of section 70.30 and the holding in Matter of Canada v McGinnis (36 AD2d 830, affd 29 NY2d 853).”

In the Canada case the defendant was arrested in Manhattan and released on bail in 1967. On February 6, 1968 he was arrested on a second charge and was held in the Manhattan House of Detention. On May 15, 1968 he was sentenced on the first charge to a term of 1 year, 3 months to 2 years, 6 months. On July 1, 1968 he was transferred to the State penitentiary at Sing Sing and formally commenced service of the first sentence. Ten days later he was returned to the Manhattan House of Detention to stand trial on the second charge. He was found guilty and, on September 26, 1968, was sentenced to an indeterminate term with a maximum of seven years. He claimed that the time spent in the Manhattan House of Detention awaiting the disposition of the second charge (July 11-Sept. 26, 1968) should be credited as jail time against the second sentence. The Appellate Division held that he was not entitled to credit this time against his second sentence because he "was serving a sentence under a prior conviction at the time of his transfer to the House of Detention and, consequently, the time served there was part of his first sentence” (36 AD2d 830). We affirmed, without opinion (29 NY2d 853).

The holding of the Canada case is directly applicable here. Since Kalamis commenced the service of his first two sentences when he arrived at State prison on January 30, 1974 all the time later spent in custody, whether in State or local institutions, was credited against the first two sentences and could not be credited against the third, Suffolk County sentence. Kalamis in fact makes no effort to distinguish the Canada case. Instead he relies on our more recent holding in People ex rel. Middleton v Zelker (36 NY2d 691).

In Middleton the petitioner was arrested in Kings County on May 27, 1968 and held there to await disposition of a Kings County robbery charge. On June 27, 1968 the Westchester County authorities issued a detainer warrant on another robbery charge. This warrant was filed against him in Kings County. Nearly a year later (April 30, 1969) petitioner pleaded guilty, in Kings County, to robbery in the third degree. On about October 1, 1969, before being sentenced in Kings County he was transferred to Westchester County where he again pleaded guilty to robbery in the third degree and, on October 17, 1969, was sentenced to an indeterminate term for a maximum of seven years. He was then transferred back to Kings County where, on November 25, 1969 he was sentenced to an indeterminate term not to exceed four years, to run concurrently with the Westchester County sentence. On about December 13, 1969 he commenced serving the sentences in State prison.

Although Middleton had been in local custody for 556 days, the prison authorities only gave him jail time credit for 72 days against his controlling Westchester County sentence— i.e., from the date he was physically surrendered to the Westchester authorities (Oct. 1, 1969) to the date he was received at the State institution (Dec. 13, 1969). The remainder of the time, which had been spent in Kings County facilities, was credited only against the Kings County sentence. The question was whether the petitioner was "in custody * * * as a result of’ the Westchester charge while he was physically held in Kings County. The Appellate Division held that he had been in "constructive custody” of the Westchester authorities from June 27, 1968, the date the Westchester detainer warrant was issued, and presumably filed, until he formally commenced serving his sentence (Dec. 13, 1969), a total of 526 days which should be credited against the Westchester sentence (42 AD2d 998). We affirmed on the Appellate Division memorandum (36 NY2d 691).

Kalamis claims that the Middleton holding affects his case in two respects. First he claims that it shows that he was in the constructive custody of the Suffolk County authorities from January 2, 1974, when the detainer warrant was filed. Secondly he claims that it shows that once a detainer warrant is filed, the place of detention becomes immaterial and thus he should be deemed to have been in the custody of the Suffolk County authorities even during the period he was actually incarcerated in State prison.

The arguments do not go far enough. In Middleton the petitioner sought credit for time in custody prior to the imposition of any sentence. Since no sentence was being served during that period, the time was not already committed to a previously imposed sentence. Here however Kalamis claims credit for time in custody after he had begun the first two sentences. Since that time was already being credited against the first two sentences, it could not also be credited as jail time against the third (Matter of Canada v McGinnis, 36 AD2d 830, affd 29 NY2d 853, supra). Thus even if we were to hold that Kalamis was in the constructive custody of the Suffolk County authorities during this period, the time could still not be credited against the Sufolk County sentence.

The Collins case

In the second appeal, Matter of Collins v Vincent (50 AD2d 886), the petitioner was first arrested in Queens County in 1973 and was then released on bail. Later that year (Sept. 1) he was arrested again, in Queens County, and held on another charge, a robbery, at the Queens County House of Detention. On September 19, 1973 bail on the first charge was exonerated and a bench warrant was lodged. On November 9, 1973 petitioner pleaded guilty to unauthorized use of a motor vehicle in satisfaction of the first charge; was sentenced to nine months’ imprisonment and immediately commenced serving the sentence at Hiker’s Island. On January 22, 1974 he was sentenced on the second charge to an indeterminate term of to 7 years to run concurrently with the earlier sentence. A week later he was transferred to the Brooklyn House of Detention to await the disposition of a third charge. On February 27, 1974 he was sentenced on the third charge to a one-year concurrent term.

The prison authorities credited the petitioner with 60 days jail time against the controlling, second sentence of 3½ to 7 years. Petitioner commenced this article 78 proceeding claiming an additional 138 days jail time credit. Special Term held that he was entitled to an additional six days and the Appellate Division affirmed (50 AD2d 886).

On this appeal petitioner claims that he is entitled to an additional credit of 124 days against the second sentence. Two distinct periods are involved: (1) time spent in custody from the date the bail was exonerated and the warrant was filed (Sept. 19, 1973) to the date the sentence commenced on the first charge (Nov. 9, 1973), a total of 50 days and (2) time spent in custody between the date the first sentence commenced (Nov. 9, 1973) and the date the second sentence was imposed (Jan. 22, 1974), a total of 74 days. Credit for the second period should be denied on the authority of Matter of Canada (supra). But the petitioner is entitled to jail time credit for the first period pursuant to Middleton and its progeny, Matter of Manning v Vincent (37 NY2d 724).

The respondents note that between September 19 and November 9, 1973 petitioner was held on two charges. Consequently, when he received his first sentence, on the first charge, this period was properly credited, as jail time, against the first sentence. They argue then that it cannot be credited against the second sentence because it had already been credited against a "previously imposed sentence” (Penal Law, § 70.30, subd 3; Matter of Canada, supra).

In Middleton, as noted, we decided that a person held in custody on more than one charge prior to the commencement of any sentence, is entitled to credit this period against a sentence later imposed on one of the charges. However, in that case the credit was taken against the first sentence, which happened to be the controlling one. The principle though was later extended in Matter of Manning v Vincent (supra). In that case the petitioner was held in custody on three charges and was later sentenced on each of them but at different times. He sought to credit the time in custody prior to the commencement of the first sentence, against the third sentence, which was the controlling one. We held that he could, citing Middleton.

The respondent claims that Middleton and Manning are not applicable here because in those cases the concurrent sentences were for indeterminate terms, while here the first sentence was for a definite term of nine months. The distinction is of no significance. The statute expressly provides that "If the sentences run concurrently, the credit shall be applied against each such sentence” (Penal Law, § 70.30, subd 3, par [a]). Obviously the statute applies to all concurrent sentences and not just to indeterminate concurrent terms.

The problem presented in this case, it should be noted, is different from Canada. There the petitioner was actually serving a prior sentence while he was in local custody on the second charge. Here, however, there was no sentence in existence while the petitioner was in local custody (from Sept. 19 to Nov. 9, 1973) and thus the time was not being credited, as time actually served, against a previously imposed sentence. The fact that it was later credited to another sentence, as jail time, before the controlling sentence was imposed, does not preclude a second jail time credit. On the contrary, as indicated, the statute expressly requires that jail time be applied against each sentence when the various charges on which the petitioner was held result in multiple concurrent sentences (Penal Law, § 70.30, subd 3, par [a]).

In sum, the petitioner is entitled to an additional credit of 50 days against his second sentence for time spent in local custody from September 19, 1973 to November 9, 1973.

The Bush case

In the third appeal, Matter of Bush v Smith (51 AD2d 860), the petitioner was first arrested in Kings County on January 4, 1972, for robbery, and was released after posting bail. On December 7, 1972 he was arrested again in Kings County, for a second robbery, and was held in the Brooklyn House of Detention. On December 15, 1972 he was sentenced on the first charge to an indeterminate term of 0 to 3 years. One month later (Jan. 16, 1973) he was transferred to a State correctional institution and formally commenced serving the first sentence. On November 13, 1973 he was returned to Kings County and two days later was sentenced on the second charge to an indeterminate term of 0 to 7 years, to run concurrently with the first sentence.

Petitioner claims that all the time spent in custody after his arrest on the second charge to the date he was sentenced on the second charge (Dec. 7, 1972—Nov. 15, 1973) should be credited to the second sentence, which resulted from that charge. The prison authorities credited-him with seven days (from the date of arrest on the second charge to the date he was sentenced on the first charge [Dec. 7, 1972 to Dec. 15, 1972]), against the second sentence, which is the controlling one. The remainder of the time which was spent in custody after the first sentence, was credited only against the first sentence.

The courts below held that all the time spent in custody after the first sentence was properly credited against that sentence, and thus could not be credited against the second one. The Appellate Division held that the decision in Canada was dispositive. They distinguished Middleton on the ground that the credit allowed there was "for time spent under presentence incarceration” (51 AD2d 860).

Although the petitioner was sentenced December 15, 1972 he did not formally commence serving the sentence until he arrived at the State correctional institution on January 16, 1972. Under the Canada holding all time spent in custody after January 16, 1972 cannot be credited as jail time against the second sentence because during that period petitioner was actually serving the first sentence. But the time spent in the Brooklyn House of Detention prior to that date falls into another category. As noted earlier, jail time includes all time spent in local custody prior to the formal commencement of the sentence. Thus the time spent in the Brooklyn House of Detention after pronouncement of the sentence but before arrival at the State institution was still only jail time which, as indicated above in Matter of Collins, should be applied against each concurrent sentence (Penal Law, § 70.30, subd a; see, also, Matter of Manning v Vincent, 37 NY2d 724, supra).

In sum, Bush is entitled to credit against his second sentence, the time he spent in the Brooklyn House of Detention from December 15, 1972 to January 16, 1973.

Finally we would note that in each of these appeals the petitioners complain that the amount of jail time credited to the controlling sentence should not depend upon fortuitous events—the timing of the sentences, whether the last sentence or a previous one is controlling, whether the petitioner was held in local custody or sent to a State institution during a certain period, etc. Undoubtedly problems of this nature are to be found in any complex statutory scheme. Perhaps they are inherent in the nature of the intractable sentencing process itself. But whatever the reason, the remedy, if there is or should be one, lies with the Legislature.

The orders of the Appellate Division should be affirmed in Matter of Kalamis v Smith and modified in Matter of Collins v Vincent and Matter of Bush v Smith, in accordance with this opinion.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

In Matter of Kalamis v Smith: Order affirmed, without costs.

In Matter of Collins v Vincent: Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

In Matter of Bush v Smith: Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . The respondent has not cross-appealed from that portion of the Appellate Division order which granted the petitioner credit for 28 days spent in the Nassau County jail.

      . The respondent has not cross-appealed from that determination and has apparently also given the petitioner an additional credit for seven days.


author: Wachtler, J. Cooke, J.

text:
    The People of the State of New York, Respondent, v Joseph Cook, Appellant.
    Argued June 8, 1977;
    dedided July 7, 1977

      Allen Redlich for appellant.

      Sol Greenberg, District Attorney (George H. Barber and Daniel J. Centi of counsel), for respondent.
   Wachtler, J.

After a jury trial, the defendant, Joseph Cook, was found guilty of robbery in the first degree (Penal Law, § 160.15) and burglary in the first degree (Penal Law, § 140.30). He was sentenced to concurrent indeterminate terms of imprisonment with a maximum of 20 years. The Appellate Division affirmed. On this appeal he contends that the trial court committed reversible error in allowing Kathleen Hotaling to testify with respect to an alleged sexual assault committed by one of the three intruders in her home.

These facts are undisputed. In the early morning hours of November 18, 1974 Kathleen and Edwin Hotaling were asleep in the bedroom of their home in Albany, New York. They were awakened by the sounds of three intruders entering their bedroom. The three men were wearing nylon stocking masks which obscured their facial features. They ordered the Hotalings to pull the bed covers over their heads. At least one of the burglars was seen carrying a gun. The men then bound the hands and feet of their victims, tied them together in the bed and demanded money from them. The criminals then forcibly removed the Hotalings’ jewelry, ransacked their home and removed several items of personal property from the premises. The culprits then fled in their victims’ car.

Subsequently the police investigating this incident obtained a search warrant for premises located at 57 Dove Street, Albany, where they discovered many of the items taken from the Hotalings’ residence. While the police were at the residence, Joseph Cook and another individual arrived. Cook was wearing an earring which later proved to have been taken during the robbery. He was arrested, given his constitutionally mandated warnings and taken to the police station where he later signed a written statement implicating himself.

Cook was subsequently indicted for robbery in the first degree, two counts of robbery in the second degree, burglary in the first degree and burglary in the second degree.

At the trial the defendant testified that the written confession was coerced and that he was not involved in the incident. In support of this claim he presented four alibi witnesses.

As part of the People’s case, the prosecution called Kathleen Hotaling as a witness. She testified as to the events of the burglary and robbery, giving a general description of the intruders but never specifically identifying any of the criminals. During the course of her testimony, she related an alleged sexual assault committed by one of the intruders. She stated that while two of the men were ransacking the house, a third man re-entered the bedroom and that "he had himself exposed in front of me and put his hand up inside of me.” Defense counsel’s objection was overruled and the prosecutor pursued the issue further:

"Q. Let me break in for a moment. When you say this individual exposed himself, what did he do?
"A. He had has pants unzipped and his penis was exposed.
"Q. And where was he in relation to you when he did this?
"A. He was sitting on the bed up near my head.
"Q. What did he do then?
"A. He had his hand on the inside of my leg.
"MR. GRAY [defense counsel]: Same objection
"THE COURT: Overruled.
"Q. I don’t mean to press you on this, but would you explain to the ladies and gentlemen of the jury exactly what you mean when you say he had his hand inside your leg?
"A. He had his hand—
"MR. GRAY: Objection.
"THE COURT: Overruled.
"A. —on the inside of my leg and he put his hand to my vagina.
"Q. After this happened, what happened then?
"A. His friends came back and they said, 'Come on, let’s get out of here’, similar terminology.”

Thereafter, during the course of his summation, the Assistant District Attorney again made reference to Mrs. Hotaling’s testimony concerning the sexual assault: "[T]wo of the individuals went out and the Hotalings told you they could hear them ransacking the rest of the house. What did the other man do? Well, he was going in for a different type of ransacking. And I don’t think I even need to repeat what happened, because I’m sure that is very fresh in your minds, what Mrs. Hotaling encountered with that one individual who came back in. * * * [H]e (the defendant) admitted to what he couldn’t deny, that he was at 71 Beach Avenue on November 18th, 1974. He admitted walking out, helping load things in the car. He tells you they went to 57 Dove Street, tells you the times. He wouldn’t admit to the rest. He didn’t admit to the gun, he didn’t admit to the gruesome acts done to Mrs. Hotaling. How convenient. But that is just one of the many excuses Joseph Cook has tried to pass off on this jury.”

The defendant argues that the prosecutor deliberately and unnecessarily placed before the jury evidence of the sexual assault, and uncharged crime, and that this testimony was so prejudicial and inflammatory as to require a new trial. The People, on the other hand, contend that testimony about the sexual assault was admissible as part of the narrative of the events of the evening in question, citing People v Gines (36 NY2d 932) and People v Acevedo (32 NY2d 941). We hold that it was error to allow this testimony into evidence, but that, in light of the overwhelming proof of guilt in this case, the error was harmless (People v Crimmins, 36 NY2d 230).

It is axiomatic that evidence of uncharged crimes may be introduced only when the testimony is relevant and necessary to the prosecution’s case (People v Molineux, 168 NY 264; see People v Stanard, 32 NY2d 143). Moreover, in determining the admissibility of such evidence, a balance must be struck between the probative value of the testimony in connection with the crimes charged and the danger of undue prejudice to the defendant (People v Schwartzman, 24 NY2d 241, 247). A defendant is entitled to have the jury determine his guilt or innocence solely upon evidence tending to prove the crime charged and uninfluenced by irrelevant and prejudicial facts and circumstances (People v Tassiello, 300 NY 425, 430-431; see People v Posner, 273 NY 184, 190).

Nor are these basic principles altered by our holdings in People v Gines (supra) and People v Acevedo (supra). In those cases we merely held that testimony concerning an uncharged crime was admissible "to complete the narrative of the episode and to establish the complainant’s opportunity to identify the defendant as her assailant” (People v Gines, supra, at pp 932-933). In those cases, therefore, the probative value of the testimony about the uncharged crime outweighed the potential prejudice and, hence, the testimony was properly admitted.

The case now before us, however, does not fit within the exceptions delineated by Gines and Acevdeo and the prosecutor was as much in error in relying on those precedents as he was in pursuing the prejudicial inquiry. The testimony in question cannot be held admissible on the ground that it "establish[ed] the complainant’s opportunity to identify the defendant as her assailant”, since the record indicates that Mrs. Hotaling never identified Cook as one of the intruders. Indeed, because of the stocking masks worn by the three marauders, she was only able to give vague, general descriptions of the men. Further, there is no indication in the record, apart from the prosecutor’s totally unfounded and highly improper suggestions on summation, that Cook was the individual who sexually abused Mrs. Hotaling.

. The testimony in question would have been highly prejudicial and inexcusably inflammatory but for the other evidence which overwhelmingly establishes defendant’s guilt. We do not feel that the error in admitting this testimony warrants a reversal of the conviction, although the prosecution did transcend legitimate bounds by probing the lurid and intimate details of the uncharged sex crime. In view of the defendant’s oral and written inculpatory statements, which the Appellate Division properly found to be admissible, acknowledging his participation with others in this crime, and the presence of contraband on his person at the time of his arrest, the error in allowing into evidence the testimony concerning the sexual assault must be considered harmless.

In reaching this conclusion we initially note that the defendant was never identified by the victim as her molester and any prejudicial taint concerning him was therefore indirect at best. Nor was it claimed before the jury that the sexual molestation was a part and parcel of the criminal plan in connection with the burglary-robbery. Finally, any prejudicial hint to be found in the prosecutor’s summation that the defendant may have been directly responsible for the sexual assault was not objected to and cannot serve as a basis of a claim of error on the instant appeal (People v Kuss, 32 NY2d 436, 445). In light of the foregoing we find insufficient reason to upset the conviction.

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

Cooke, J.

(dissenting). The conviction should be reversed and a new trial ordered.

The majority itself concedes that the testimony of the uncharged crime was of a "highly prejudicial and inexcusably inflammatory” nature and states that it would have been so but for other evidence which overwhelmingly established defendant’s guilt. It is also conceded (p 208) that the "prosecution did transcend legitimate bounds by probing the lurid and intimate details of the uncharged sex crime.” I cannot agree, even in the presence of overwhelming proof of guilt, that such error was, or for various obvious reasons could be, harmless for it inevitably served to deprive defendant of a fair trial (see People v Trybus, 219 NY 18, 21).

Although others were allegedly involved in the robbery and burglary for which defendant was convicted, defendant was tried alone. The egregious nature of error as to the uncharged crime was compounded by the fact, as the majority notes (p 209), that "defendant was never identified by the victim as her molester.” It was exacerbated by the veiled hint in the prosecution summation that defendant may have been responsible for the sexual assault. Defendant’s counsel having objected to the introduction of the proof of the sexual molestation, the error, together with its consequent ramifications, was preserved.

"The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right” (People v Crimmins, 36 NY2d 230, 238).

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

Order affirmed.


text:
    In the Matter of Janet Boden, Mother, on Behalf of Janet M. Boden, Respondent, v James J. Boden, Appellant.
    Submitted June 10, 1977;
    decided July 7, 1977

      James H. Goodfriend for appellant.

      Peter E. Bronstein for respondent.
   Wachtler, J.

A mother, on behalf of her daughter, brings this proceeding to seek child support in excess of the amount provided in the separation agreement between the mother and father. The Family Court denied the petition. A divided Appellate Division reversed that determination and awarded $250 per month as child support. This represented an increase of $100 a month over and above the amount being paid by the father under the terms of the separation agreement. The father has appealed from that determination.

Janet and James Boden were married in 1956 and their only child, a daughter, was born in 1957. Marital difficulties resulted in the parties executing a separation agreement in May of 1960. Pursuant to the terms of that agreement, the father was to pay child support in the amount of $150 per month. In addition, the agreement obligated the father to: "[P]ay for the college education of said child and to that end shall cause a life insurance endowment policy in the principal sum of $7,500 to be written on his life, to mature 15 years from date hereof, and to pay all premiums thereon. The proceeds of such policy shall be used for the purpose of such college education * * * Such policy shall provide that the proceeds are to be applied for such college education with the further proviso that if said child shall die, or shall attain the age of 21 years without having attended college, then the proceeds of such policy shall be paid to the Husband.”

After the separation the mother and daughter moved to California, where a final judgment of divorce was granted on January 26, 1961. The divorce decree awarded custody of the child to the mother but contained no provision for child support nor was the New York separation agreement expressly incorporated or merged in that decree.

When the child reached college age, she decided, with her mother’s counseling, to attend Yale University in New Haven, Connecticut. At about this time, the mother, who has not remarried, moved back to New York and subsequently initiated this proceeding, on behalf of her daughter, seeking to have the amount of child support being paid by the father increased.

It is undisputed that at all times prior to the initiation of this litigation the father had complied with the support provisions of the agreement. In addition, he had purchased and kept in force the insurance endowment policy called for by the agreement and the daughter, having commenced her college education, began to receive payments from that fund.

In this proceeding the mother sought to have the child support increased to $15,170.99 per annum. The father was then paying $1,800 a year in support and an additional $1,875 from the insurance endowment policy—an aggregate of $3,675 per year. At the hearing in Family Court, it was established that the mother was presently earning an annual salary of $45,000 as an executive in an advertising agency. On the other hand, the father, who had remarried, had an income of approximately $43,000 per year.

A husband and wife, in entering into a separation agreement, may include in that agreement provisions pertaining to the support of the children of their marriage. The terms, like any other contract clauses, are binding on the parties to the agreement. The child, on the other hand, is not bound by the terms of the agreement (see Family Ct Act, §461, subd [a]; Moat v Moat, 27 AD2d 895) and an action may be commenced against the father for child support despite the existence of the agreement (see Family Ct Act, § 413; Backstatter v Backstatter, 66 Misc 2d 331). In deciding the amount of child support to be awarded, the Family Court is not constrained by the terms of the separation agreement, but rather must look to the facts and circumstances of each case individually and determine the. amount of support necessary. The key consideration, of course, is the best interest of the child, insuring that the child be adequately provided for—but the court must also consider the assets, earnings, expenses and obligations of the father (see Matter of Antelo v Antelo, 27 AD2d 825). The mother’s financial status is also a proper consideration for the court in making its determination (see Matter of Lewis v Lewis, 5 AD2d 674, mot for rearg den 5 AD2d 777, app dsmd 4 NY2d 872).

Where, as here, the parties have included child support provisions in their separation agreement, the court should consider these provisions as between the parties and the stipulated allocation of financial responsbility should not be freely disregarded. It is to be assumed that the parties anticipated the future needs of the child and adequately provided for them. It is also to be presumed that in the negotiation of the terms of the agreement the parties arrived at what they felt was a fair and equitable division of the financial burden to be assumed in the rearing of the child. Included in these obligations is the financial responsbility of providing the child with adequate and reasonable educational opportunities. Absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed (see Matter of Halpern v Klebanow, 21 AD2d 858; Matter of Lewis v Lewis, 5 AD2d 674, mot for rearg den 5 AD2d 777, app dsmd 4 NY2d 872, supra; Unger v Schiff, 277 App Div 1123, mot for rearg and mot for lv to app den 278 App Div 571, app dsmd 302 NY 767). Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into (see McMurray v McMurray, 53 AD2d 596-597; Matter of Best v Baras, 52 AD2d 557; Matter of Klein v Sheppard, 52 AD2d 532).

Although the courts have the power to modify the provisions pertaining to child support in a separation agreement, on the record in the case now before us it was an abuse of discretion for the Appellate Divison to increase the amount of child support to be paid by the father. The agreement expressly provided for an amount which the parties felt was adequate for child support and manifests an understanding that the child might pursue a college education. Specific provision was made for a fund to cover those expenses. Further there has been no showing of an unforeseen change in circumstances, or that the agreement was not fair and equitable when entered into. The facts and circumstances here present did not warrant a modification of the child support provision of the separation agreement and it was error for the Appellate Division to do so. The Family Court was correct in denying the petition.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

Order reversed, with costs, and the order of Family Court, New York County, reinstated.


text:
    The People of the State of New York, Appellant, v Joseph Gruden, Respondent. The People of the State of New York, Appellant, v Donald Frazier, Respondent.
    Argued May 5, 1977;
    decided July 7, 1977

      Carl A. Vergari, District Attorney (Janet E. Cunard of counsel), for appellant.

      Irving Nitzberg for Joseph Gruden, respondent.

      Robert W. Stieve and Stephen J. Pittari for Donald Frazier, respondent. The indictment was properly dismissed; the matter should not be remanded for a hearing.
   Wachtler, J.

In each of these cases the defendants moved to dismiss the indictment on speedy trial grounds, claiming that the People were not ready for trial within six months of the commencement of the criminal action (CPL 30.30, subd 1, par [a]). The People did not dispute the facts alleged in the defendants’ motion papers. Instead they consented to a hearing.

CPL 210.45 (subd 4, par [c]) provides that "The court must grant the motion without conducting a hearing if * * * [t]he sworn allegations of fact essential to support the motion are either conceded by the people to be true or are conclusively substantiated by unquestionable documentary proof.” The trial court dismissed the indictments without a hearing holding that "the failure of the People to raise an issue of fact in their answering papers is tantamount to a concession on their part as to the truth of the allegations of the moving papers.”

On this appeal the People claim that the court erred in dismissing the indictments without a hearing because the People had not expressly conceded the facts alleged by the defendants. They have also informed us that it is, or was, the accepted practice in Westchester County for the court to conduct a hearing under these circumstances.

It is fundamental that a motion may be decided without a hearing unless the papers submitted raise a factual dispute on a material point which must be resolved before the court can decide the legal issue (see, e.g., CPLR 2218). Nevertheless the People conclude that CPL 210.45 (subd 4) establishes a new and unusual procedure. In their view the statute should be literally read so as to preclude the court from summarily granting the motion to dismiss unless the facts are expressly conceded by the People to be true, arguing that a failure on the part of the People to controvert is not necessarily to be deemed a concession under the statute. They surmise that this unusual procedure may be occasioned by the fact that to grant the motion would be to abort the prosecution at the threshold.

It should be noted that this statutory procedure is not peculiar to motions to dismiss. The same standard applies in those sections dealing with motions to suppress (CPL 710.60, subd 2, par [b]), motions to set aside a verdict (CPL 330.40, subd 2, par [d]) and motions to vacate a judgment or set aside a sentence (CPL 440.30, subd 3, par [c]X In short it is the standard procedure to be followed in connection with nearly every pretrial and posttrial motion made in a criminal action.

The prosecution’s "literal” interpretation of the statutory language could have a catastrophic effect on motion practice in all criminal cases. The court’s power to grant motions on the papers will be virtually abolished. Even though the facts alleged warrant the relief sought, even though there is no factual dispute presented in the papers, and even though the prosecutor’s case may be hopelessly lost, the court must hold a hearing before granting the motion if the prosecutor decides that he will not expressly concede the facts alleged. No statute should be interpreted that literally.

Obviously it is not the statutory language but the prosecution’s interpretation of it which is unusual. Normally what is not disputed is deemed to be conceded. Generally a party opposing a motion cannot arbitrarily demand a hearing to conduct a fishing expedition. The courts should not assume that the Legislature intended to establish such a useless and wasteful procedure.

There is a special irony in the position taken by the prosecution in this case. Several years ago in People v Ganci (27 NY2d 418), a speedy trial case, this court undertook an extended statistical analysis of court congestion and concluded that hearings "consume substantial amounts of time and contribute to the delays in processing criminal cases” (People v Ganci, supra, p 426). We noted that the problem was of such magnitude that drastic measures should be adopted to cut back on the amount of time consumed by these collateral proceedings. In fact it was suggested that "in view of the growing crisis caused by congested criminal calendars, reduplicated hearings before the Judge, and then before the Judge and the jury, on similar proof, is a procedural luxury” which should be abolished (People v Ganci, supra at p 425).

Following Ganci, the Administrative Board of the Judicial Conference promulgated a series of rules, to become effective May 1, 1972, providing specific time-period definitions of a speedy trial (Rules, Administrative Board of Judicial Council, §§ 29.1-29.27; 22 NYCRR 29.1-29.7). These rules were almost absolute in nature. As long as the defendant himself was not responsible for the delay, the court was required to dismiss the indictment "if the cause has not been brought to trial within” the prescribed periods (Rules, Administrative Board of Judicial Council, §§ 29.1, 29.2). Before the effective date of these rules and in order to ameliorate their somehwat harsh results, the Legislature enacted the speedy trial provisions of the Criminal Procedure Law (CPL 30.30). While the statute also sets time limitations, it calls for dismissal of the indictment only "where the People are not ready for trial within” the applicable period (CPL 30.30, subds 1, 2). Thus, under the statute the People can avoid dismissal through diligence and lack of fault on their part for the delay, whereas under the Administrative Board rules the dismissal was automatic as long as the defendant had not caused the delay.

Today the prosecution has asked us to come full circle. In addition to the benefits received by the enactment of CPL 30.30, they now seek a rule that there must be hearings on speedy trial motions, even though the answering papers do not present a factual dispute for the court to resolve. They apparently assume that the Legislature intended that they have the final option of demanding a hearing, by inaction, even though they may realize that the facts alleged are accurate. This is a procedural luxury of the purest sort.

There is no indication in the history of these statutes that the Legislature ever intended to establish such a new and unusual motion practice in criminal cases. In the absence of any indication to the contrary we should interpret the statutory language in light of traditional procedures. Generally hearings are not available merely for the asking. We therefore hold that the court may summarily grant a motion to dismiss unless the papers submitted by the prosecutor show that there is a factual dispute which must be resolved at a hearing. That is not to say that the opposition papers need be as detailed as they would have to be to defeat a motion for summary judgment. Indeed, there may well be instances when the information alleged may be solely within the knowledge or possession of the defendant or based upon information and belief, as is permitted by the statute, so that in opposing the motion the prosecutor could simply ask the court to put the defendant to his proof. But in the cases now before us, where the facts alleged were available to both sides, there was no issue raised, by contradiction or avoidance, and therefore no need for a hearing.

In these cases, however, since it appears that a contrary practice prevailed, or was tolerated, in Westchester County, the People should be given an opportunity to submit additional papers on the motions. In both of these cases the People have tendered certain facts in the briefs in an effort to show that they might be able to explain the delay. In the Frazier case they claim that the defendant had absconded and apparently could not be located. This would seem to warrant a hearing. In the Gruden case however the facts alleged do not appear to be sufficient to defeat the motion even if they were established at a hearing. If that is all the People would have to offer upon remission, there would be no need for a hearing and the indictment was properly dismissed.

The orders of the Appellate Division should be modified and the cases remitted to County Court, Westchester County, to permit the People to submit whatever papers they may deem appropriate in accordance with the above opinion and, as so modified, affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

In each case: Order modified and case remitted to County Court, Westchester County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Donald Skrynski, Appellant.
    Argued June 1, 1977;
    decided June 30, 1977

      Margrethe R, Powers for appellant.

      James C. Steenbergh, District Attorney (Edward G. Cloke of counsel), for respondent.

      Eugene W. Salisbury and Duncan S. Mac Affer, for New York State Association of Magistrates, amicus curiae.

      James J. Alñni and Allan Ashman for the American Judicature Society, amicus curiae.

      Rene H. Reixach for Greater Up-State Law Project, Monroe County Legal Assistance Corporation, amicus curiae.

   Per Curiam.

There are two significant issues. The first attacks, on due process constitutional grounds, the use of nonlawyer town and village Justices. The second involves the alleged lack of opportunity by defendant to be advised of his right to counsel and the availability of such counsel.

On the first due process issue the State Constitution provides for the continuance of town and village courts as they existed in the past (NY Const, art VI, § 17, subd a). The State Constitution also provides the Legislature with the power, subject to some limitations, to change the jurisdiction of town and village courts or to eliminate them (subds a, b). It also provides that the Legislature shall have power to prescribe the qualifications of town and village Justices (NY Const, art VI, § 20, subd c). Consequently, under the State Constitution the current practice of lay town and village Justices is authorized.

Insofar as the Federal Constitution is concerned, the Supreme Court has determined that in certain circumstances so long as defendant has the effective alternative of a criminal trial before a court with a traditionally law-trained Judge or Judges, there is no violation of the Federal Constitution (North v Russell, 427 US 328, esp pp 333-339). CPL provides for a procedure to divest the town and village courts, of, and remove to a superior court, the power to try and determine a criminal case (170.25). Consequently, there is no evident Federal infirmity in the New York State system of town and village courts with lay Justices. If there be such Federal infirmity, it is for the Supreme Court to make such determination (but see Gordon v Justice Ct., 12 Cal 3d 323, esp pp 327-328).

On the second issue, the record does not show whether defendant’s right to counsel was denied or. impaired. The briefed assertions submitted are contradictory. The appropriate procedure to establish such denial or impairment, if any, would be a motion to vacate the judgment in the nature of coram nobis under CPL 440.10. Such motion would include the submission of affidavits and perhaps entail a hearing (see CPL 440.30), thereby providing a proper record whereas there is none at all now except as to the actual trial.

Because defendant does not specify how any witnesses he would have called could have aided his defense, the Trial Justice’s failure to issue a subpoena on behalf of defendant cannot be said to warrant disturbance of the conviction. As to the limitation put on cross-examination of witnesses, all the Justice did was exercise the court’s discretion so that impeachment not stray unrestrained to completely irrelevant matters. With respect to other alleged errors, they turn on the failure of defendant, proceeding as attorney pro se, to make proper applications, objections, and exceptions, and therefore depend on whether his right to counsel was denied or impaired.

Accordingly, the order of the County Court should be affirmed without prejudice to the making of a motion pursuant to CPL 440.10.

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

Order affirmed.