People v. Lediard

• Decision Date: 07 May 1981
• Citation: 438 N.Y.S.2d 540,80 A.D.2d 237
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawrence LEDIARD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 540

438 N.Y.S.2d 540

80 A.D.2d 237

The PEOPLE of the State of New York, Respondent, v. Lawrence LEDIARD, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 7, 1981.

Howard B. Comet, Mineola, of counsel (William E. Hellerstein, New York City), for defendant-appellant.

Vida M. Alvy, New York City, of counsel (Billie Manning, New York City, with her on brief; Mario Merola, Dist. Atty.), for respondent.

Before BIRNS, J. P., and ROSS, CARRO, FEIN and LYNCH, JJ.

ROSS, Justice.

On Friday night, March 10, 1978, a group of teenagers were drinking beer and playing frisbee at a certain Bronx intersection. Complainant Kevin O'Sullivan, his brother Patrick and Anthony D'Amato, were among this congregation. Two and one-half hours later, tired of this activity, the above-mentioned trio proceeded to a local restaurant. They emerged from this establishment at approximately midnight and encountered two other acquaintances, one of whom was William Brennen. The latter two were coming from a party where alcoholic beverages had been served. Together these individuals proceeded to the intersection of Kingsbridge Road and Sedgwick Avenue, with their eventual destination being a neighborhood park. At a mid-roadway island of the above intersection, Kevin O'Sullivan picked up a bag of garbage, which had been discarded and hurled it towards D'Amato. This missile missed its intended target and struck a passing vehicle. The driver, a black man, stopped his car and demanded to know why O'Sullivan threw the bag at him. The latter apologized. However, an argument ensued and racial insults were exchanged.

At this point a second black man, later identified as the defendant, who was standing across the street between a real estate office and "Hickey's" bar, began to shout encouragement to the driver of the car. The defendant and this group of teenagers then shouted racial epithets at each other. Brennen was the only one of the group of teenagers to testify that he saw defendant come out of "Hickey's" bar prior to engaging these youths in this verbal exchange. The others testified that they first noticed defendant standing near the curb between the abovementioned businesses. After a minute of trading insults, an anti-crime police unit arrived and calmed the situation.

The teenagers then continued to cross the street. Kevin O'Sullivan and Brennen testified that they saw defendant and a woman enter a green taxicab. This vehicle then made a U-turn on Kingsbridge Road and stopped for a traffic light. When it started up again, the cab slowly drove past complainant and his friends. Complainant, Brennen and D'Amato testified that as the car passed, defendant reached out of the rear window of the cab and fired one shot from a small nickel plated pistol at them. This single bullet struck Kevin O'Sullivan in the neck causing serious injuries. Complainant spent twenty-six days in the hospital and at the time of trial the bullet was still lodged in his neck.

The defendant called several witnesses to testify on his behalf. For purposes of this appeal it is necessary only to refer to the relevant portions of the testimony of the two character witnesses and the alibi witness. Defendant's landlord, the first character witness, testified that he had known defendant for the past four years and that defendant had a peaceful reputation in the community. However, this witness admitted on cross examination that he had never discussed the defendant's reputation with anyone. The prosecutor then asked if the witness knew that the defendant had been charged with possession of a starter's pistol in 1957 ^* and whether the witness knew that defendant had been charged with burglary and possession of burglar's tools in 1974. ^** Defense counsel raised no objection to these questions. In addition, the prosecutor asked this question:

"Did you know that on March 10, 1978 in Hickey's Bar, the defendant showed * * * the bartender at Hickey's Bar, a loaded .22 calibre pistol, did you know that?"

This question was asked three times and objections were raised. The Court did, however, instruct the jury that there was no evidence presented as to this fact.

After this witness concluded his testimony, a conference was held in the chambers of the justice presiding to determine the prosecutor's good faith basis for asking the above question. Defense counsel noted that, while the prosecutor had interviewed the bartender, the latter was not called to testify that defendant had displayed a gun in the bar on the night of the shooting. The prosecutor replied that his good faith basis for this question was not based on information received from the bartender. Instead, one of the teenagers, who was with complainant when he was injured, told the prosecutor that the bartender told him about seeing defendant with a gun on the night of the incident. The Court directed that the prosecutor could not ask this same question again.

The second character witness testified that defendant had a reputation for being an unexcitable and gentle person. This witness explained that defendant had been employed since 1959 by the company for which she is a sales agent. On cross examination the prosecutor asked this witness if she was aware of defendant's prior arrests. She testified that she was aware of the present arrest and the one in 1974. However, she was not aware of the first arrest until defense counsel had recently advised her of it. She also noted that the 1957 incident occurred two years before defendant commenced his present employment.

James Tarrant, the alibi witness, testified that he had known defendant for the past ten years and they often went to Hickey's Bar together. On the night of this incident, this witness was in the bar along with defendant and his wife and numerous others. According to this witness, a young man entered the premises at approximately 12:30 A.M. and asked if he could use a dime to call the police emergency number because "some kid just got shot". At that moment defendant's wife was sitting next to this witness and he could see defendant standing five feet away from him. The records of the Police Department were admitted into evidence to show that the authorities were notified about the shooting incident between 12:24 and 12:30 A.M.

Defendant assigns error to, inter alia, the Court's charge on alibi and maintains that the cross examination of the character witnesses was improper. We find these arguments persuasive and now reverse defendant's conviction and dismiss the indictment.

Normally, the failure to object at trial to some of the now complained of errors, would not be reviewable on appeal. However, the cumulative effect of these...