Able Cycle Engines, Inc. v. Allstate Ins. Co.

• Decision Date: 28 December 1981
• Citation: 445 N.Y.S.2d 469,84 A.D.2d 140
• Parties: ABLE CYCLE ENGINES, INC., etc., et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 469

445 N.Y.S.2d 469

84 A.D.2d 140

ABLE CYCLE ENGINES, INC., etc., et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

Dec. 28, 1981.

Richard J. O'Keeffe, White Plains, for appellants.

Mead, Dore & Voute, P. C., White Plains (Donald A. Mead, White Plains, of counsel; Emanuel Thebner, White Plains, on brief), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and WEINSTEIN, JJ.

WEINSTEIN, Justice.

May evidence that a witness committed a crime in a state other than New York be introduced at a trial in a New York State court for the purpose of impeaching the witness' credibility if, under the law of the state where the crime was committed, such crime could not be used for impeachment purposes? We hold that, assuming such evidence is otherwise admissible, it may be so introduced.

Plaintiff Able Cycle Engines, Inc. was engaged in the manufacture and sale of motorcycle parts. The business was conducted from a one-story building in northern Westchester County. At all relevant times, this structure was covered by a "Business Insurance" policy issued by defendant Allstate Insurance Company.

Early in the morning of August 5, 1973, a fire destroyed the aforesaid plaintiff's premises. Paul Carrera, an officer of Able Cycle, was seen just outside the premises as the fire was blazing, although he told a State trooper present at the scene that he had not noticed the fire until a passing motorist pointed it out to him. Suspecting that the fire may have resulted from an act of arson, the State police requested that the District Attorney investigate the possibility of criminal activity. Accordingly, a criminal investigator from the District Attorney's office attempted to inspect the premises. His efforts, however, were repeatedly thwarted by Frederick Greenwood, who actually operated Able Cycle. On at least four occasions, Greenwood or his wife refused to allow the investigator to enter the premises; on two other occasions, the investigator could not locate Greenwood there. Finally, the case was closed due to lack of co-operation by Greenwood.

Greenwood filed an insurance claim with Allstate. A fire protection consultant was hired by Allstate to investigate the premises, and he succeeded in making an inspection. He concluded that two separate fires, one in the back and one in the front of the building, had started at about the same time, and had each progressed toward the middle of the structure. It was his opinion that the fires were deliberately set in order to destroy the building. Based on his opinion, Allstate notified Greenwood that it would deny his claim for insurance benefits.

The instant action was thereupon commenced to collect insurance proceeds allegedly due under the policy. Greenwood was the only witness called by Able Cycle during its direct case; Carrera had died in an automobile accident shortly after the fire. At trial, Greenwood admitted, in the course of cross-examination, that in April, 1974, he was convicted in California of the crime of grand theft, arising out of an insurance fraud. At the conclusion of the trial, the jury found that the fire at the premises of Able Cycle had been deliberately set, and returned a verdict in favor of defendant Allstate. The plaintiffs now appeal.

The crux of this appeal is whether the court erred in permitting Greenwood's testimony to be impeached by the introduction of evidence of his California conviction. This issue is complicated by the fact that the law of New York and that of California are at odds on this point. Greenwood received a sentence of probation for his California crime. Section 1203.4 of the Penal Code of California provides a mechanism whereby any defendant who has fulfilled all the conditions of probation for the entire period of probation, or who was discharged from probation prior to the termination of that period, can have his conviction vacated, the charges against him retroactively dismissed, and "thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted", with certain exceptions not relevant here. Greenwood's conviction of grand theft was, in fact, vacated. Subdivision (c) of section 788 of California's Evidence Code provides that a prior felony may not be used to attack the credibility of a witness if "accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4." A California court has explained that "the legislature intended by the enactment of section 1203 that no convicted person discharged after probation thenceforth should be regarded as one possessed of the degree of turpitude likely to affect his credibility as a witness" (People v. Mackey, 58 Cal.App. 123, 131, 288 P.2d 633). This is so even if the witness cannot demonstrate that he has been rehabilitated subsequent to the period of probation (see People v. Butler, 105 Cal.App.3d 585, 164 Cal.Rptr. 475); indeed, the statute applies even when it is manifest that rehabilitation has, in fact, not taken place (see People v. Bradley, 248 Cal.App.2d 887, 57 Cal.Rptr. 82; People v. Johnson, 134 Cal.App.2d 140, 285 P.2d 74). ^*

Under California law, then, evidence of Greenwood's conviction of grand theft would not have been admissible. It appears that the law of New York is contrary. Pursuant to CPLR 4513, any conviction of a crime may be introduced to impeach the credibility of a witness at a civil trial (see Richardson, Evidence § 506; Fisch, New York Evidence, § 459; 65 N.Y.Jur., Witnesses, § 78). In fact, inquiry into even the nature of the crime, and not just the fact of the conviction itself, is proper (see Moore v. Leventhal, 303 N.Y. 534, 104 N.E.2d 892; People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637). There are no exceptions for a crime for which a certificate of relief from disabilities has been obtained.

The fact that the statute does not explicitly limit prior-crime impeachment to crimes for which no certificate of relief from disabilities has been obtained does not, however, terminate our inquiry as to the law of New York on this point. Article 23 of the Correction Law (§ 700 et seq.) provides for the granting, under appropriate circumstances, of a certificate relieving an eligible offender "of any forfeiture or disability * * * automatically imposed by law by reason of his conviction" (Correction Law, § 701, subd. 1). We could treat the certificate contemplated by this article as roughly equivalent to the relief granted to Greenwood in California. We would thus be confronted by the possibility that the statute could be construed to include relief from the "disability" of having all testimony offered by the offender rendered liable to prior-crime impeachment as to the crime in question. We are aware of no case in New York which has dealt with this possibility.

An extremely narrow interpretation of the privileges bestowed by a certificate granted under article 23 of the Correction Law was rendered in People v. Honeckman, 87 Misc.2d 117, 384 N.Y.S.2d 657. The court read subdivision 2 of section 701 of the Correction Law to be a clarification of the terms of subdivision 1 of that section, so that only certain privileges specified in subdivision 2, none dealing with impeachment of the offender's testimony, could be conferred by the certificate. We are not certain that such restrictive reading of the statute is appropriate; we certainly do not believe that it reflects its plain meaning. Subdivision 2 appears to be a nonexhaustive listing of privileges which may be granted by the certificate.

Nonetheless, we believe that the Honeckman court was correct insofar as it held that the certificate did not expunge the conviction for all purposes. Subdivision 3 of section 701 of the Correction Law, for instance, specifies that a licensing board can, at its discretion, suspend, revoke, or refuse to issue a license to an offender on the basis of his prior offense, even though a certificate has been issued (see Matter of Sturman v. Public Health Council, 58 A.D.2d 389, 397 N.Y.S.2d 168). Subdivision 1 specifies that a certificate does not remove the bar to an offender's holding public office (cf. Matter of DePaolo v. Bronstein, 45 A.D.2d 691, 356 N.Y.S.2d 631). In other words, "granting of a certificate of relief from disabilities in no way eradicates or expunges the underlying conviction" (Matter of Da Grossa v. Goodman, 72 Misc.2d 806, 809, 339 N.Y.S.2d 502). This statement was cited as the law of this State in Rehman v. Immigration & Naturalization Serv., 544 F.2d 71, 74 and Nass v. Local 348, Warehouse Production Sales & Serv. Employees Union, 503 F.Supp. 217, 218. Even more persuasive is United States v. DiNapoli, 557 F.2d 962, 966, cert. den. 434 U.S. 858, 98 S.Ct. 181, 54 L.Ed.2d 130, which also cited Da Grossa. In DiNapoli, impeachment of testimony by a prior crime was held permissible even though a certificate of relief from disabilities had been obtained. That holding, it is true, was based upon section 609 (subd. of the Federal Rules of Evidence, which renders a prior conviction inadmissible for impeachment purposes if a certificate of rehabilitation has been obtained "based on a finding of the rehabilitation of the person convicted"; the court in DiNapoli noted that rehabilitation need not have been accomplished in order for the offender to be granted a certificate (but see Correction Law, § 702, subd. 2, par. and n. supra ).

DiNapoli, being based on Federal law, is of course not direct authority for the issue at bar. But we believe that the result it reached would be correct under State law also. We can glean from the provisions of section 701 of the Correction Law that the intent of the Legislature in enacting it was to enable eligible offenders who have shown certain indications of having been rehabilitated to avoid some of the restrictions immediately flowing...