People v. Ashby

• Decision Date: 08 July 1960
• Citation: 168 N.E.2d 672,8 N.Y.2d 238,203 N.Y.S.2d 854
• Parties: , 168 N.E.2d 672 PEOPLE of the State of New York, Appellant, v. Edwin W. ASHBY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 854

203 N.Y.S.2d 854

8 N.Y.2d 238, 168 N.E.2d 672

PEOPLE of the State of New York, Appellant, v. Edwin W. ASHBY, Respondent.

Court of Appeals of New York.

July 8, 1960.

Bernard Thompkins, New York City, and Wilfred R. Caron, Kingston, for appellant.

N. Le Van Haver, Kingston, Paul Rosen, Poughkeepsie, and John E. Egan, Kingston, for respondent.

DESMOND, Chief Judge.

Defendant, because of testimony he gave before a Grand Jury investigating alleged corruption of public officers and employees in Ulster County, was convicted of two crimes of perjury, second degree. One such alleged crime consisted of the giving by defendant on October 2, 1958 of testimony which he afterwards (October 27, 1958) recanted and denied before the same Grand Jury. The first indictment count on which defendant was convicted charged that defendant's October 2, 1958 Grand Jury testimony was false and, since defendant himself afterwards so labeled it and attempted to purge himself as to it, the trial jury's finding of his guilt on that count was entirely justified. The second count of the indictment was drawn under sections 1627 and 1627-a of the Penal Law, Consol.Laws, c. 40, which permit perjury second degree to be proven by the showing of contradictory sworn statements without proof as to which of the statements was true. Since defendant's evidence given at his second Grand Jury appearance was quite inconsistent with his October 2 statements to that body, the contradictions between the two versions justified the finding of guilt on the second count, also.

The Appellate Division's reversal of this judgment of conviction and grant of a new trial was 'on the law, the facts being affirmed'. This form of order necessarily meant that the new trial was being directed not because of any weighing of evidence and not as matter of discretion or in the interest of justice but solely because of an error of law considered by the Appellate Division to require reversal (See People v. Cohen, 5 N.Y.2d 282, 292, 184 N.Y.S.2d 340, 347). The alleged error is described and explained in the Appellate Division's opinion. To it we now turn.

The Appellate Division held that it was reversible error for the Trial Justice to permit an important defense witness (Bareika) to be cross-examined at the trial as to his having previously refused, on the ground that the answers would incriminate him, to answer questions put to him by the State Commissioner of Investigation as to the same matters to which he testified on this trial. The Appellate Division, citing Halperin v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, held that the prior exercise by the witness of his undoubted right to refuse to answer could not validly be used at this trial to destroy his credibility, and that such use was, especially because of the importance to the defense of Bareika's testimony, so serious an error as to require reversal. No one will now question the generality expressed in Halperin v. United States, supra, that a citizen's assertion of his constitutional right to refuse to incriminate himself cannot afterwards be the basis of an attack on his credibility. But, as we shall show, the demonstration by the People at this trial that witness Bareika had previously made use of the privilege in another investigation of the same matters was, under the circumstances of this trial, proper and justified. Letting this trial jury know that Bareika had earlier declined to answer was proper indeed, necessary because the defense itself had made an issue at the trial of Bareika's willingness to explain these occurrences and had attempted to show by Bareika himself that he had been ready to talk but that the prosecutor, to fob off a complete investigation, had failed to use him as a witness.

Beginning with his opening statement to the jury, defendant's counsel persistently charged that the prosecution 'never made any attempt to find out' the true facts. 'He didn't try and he didn't want to know', said counsel. Defense counsel asked the trial jury in that opening speech whether it did not think that had the Grand Jury and prosecutor been interested in discovering the truth 'inquiry would have been made' from Bareika and others. When it came to presenting the defense, the first witness called for defendant was attorney Rosen who had been retained by defendant and had talked with the prosecutor on defendant's behalf after the latter's first, or October 2, Grand Jury appearance. Attorney Rosen's trial testimony again put before the jury the contention of the defense that the prosecutor, despite suggestions by the attorney, had failed to check the underlying facts with various knowledgeable persons, including this same Bareika. It was in this setting that Bareika himself was called to the stand a little later as a witness for defendant. After preliminary questions had been answered, defense counsel showed by Bareika that he had been subpoenaed to the trial by the prosecution. He was then asked by the defense attorney whether he had 'been available as a witness'. The prosecutor conceded on the record that Bareika had been served with a subpoena but had not been...