People v. Barber

• Decision Date: 09 May 1989
• Citation: 541 N.E.2d 394,543 N.Y.S.2d 365,74 N.Y.2d 653
• Parties: , 541 N.E.2d 394 The PEOPLE of the State of New York, Respondent, v. Arthur BARBER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 365

543 N.Y.S.2d 365

74 N.Y.2d 653, 541 N.E.2d 394

The PEOPLE of the State of New York, Respondent, v. Arthur BARBER, Appellant.

Court of Appeals of New York.

May 9, 1989.

[74 N.Y.2d 654] Lynn W.L. Fahey, Philip L. Weinstein and Andrea Hirsch, New York City, for appellant.

Robert T. Johnson, Dist. Atty. (Susan L. Valle, Stacey K. Edelbaum and Billie Manning, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 138 A.D.2d 336, 527 N.Y.S.2d 329, should be affirmed.

Defendant had no right to file a supplemental pro se brief in the Appellate Division and under the circumstances presented we find no abuse of discretion by the court in denying him permission to do so (see, People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 [decided herewith]. We have considered defendant's remaining points and find they are either lacking merit, unpreserved or not grounds for reversal.

TITONE, Judge (dissenting).

I agree with my colleagues that a represented defendant has no absolute right, constitutional or otherwise, to file a pro se supplemental brief on appeal. Accordingly, although I find the Appellate Division's refusal to accept defendant's pro se supplemental brief puzzling, I would not vote to reverse the court's order affirming the conviction on that ground. However, in the final analysis, I cannot concur in the majority's decision to affirm without even commenting upon the significant evidentiary argument defendant has made.

It is defendant's contention that he was unfairly prevented from developing his defense at trial because of an outmoded rule of evidence that restricts the manner in which the accused's good character may be proven. The majority's opaque statement that "defendant's remaining points * * * are either lacking merit, unpreserved or not grounds for reversal" (majority mem, at 654, at 365 of 543 N.Y.S.2d, at 394 of 541 N.E.2d) furnishes no clue as to whether it has rejected the substance of this argument or has instead found some other impediment to reversal, such as a perceived preservation problem or a determination that the court's rulings, although erroneous, were harmless. Thus, the majority has left the important evidentiary question presented by this appeal without definitive resolution. I am unable to agree with this disposition, however, since, in my view, defendant's claim is preserved, meritorious and, in fact, compels reversal. For that reason, I dissent.

In this case involving an attempted murder charge, defendant contends that he should be afforded a new trial because of the trial court's errors in restricting his character witnesses' testimony to reputation evidence and in repeatedly precluding their testimony as to their own opinions of his character. While the existing precedent in this State may not support defendant's position, the weight of Federal and sister State authority, as well as simple common sense, does.

Under traditional evidentiary principles in New York, a defendant may attempt to establish his good character only by showing his general reputation in the community. The opinions of those who know him personally and have firsthand knowledge of his character are inadmissible (People v. Bouton, 50 N.Y.2d 130, 428 N.Y.S.2d 218, 405 N.E.2d 699; see, Richardson, Evidence § 151 [Prince 10th ed]. The rule is derived from People v. Van Gaasbeck, 189 N.Y. 408, 82 N.E. 718, which was decided in 1907 and at a time when most American jurisdictions that had considered the question held that " 'character means the estimate in which the individual is held by the community and not the private opinion entertained of him by the witnesses who may be called to testify in reference to such fact' " (id., at 416, 82 N.E. 718, quoting Jackson v. State, 78 Ala. 471). The court adopted what was then the majority view because of "overwhelming considerations of practical convenience," namely the difficulty of ascertaining the truth of the specific occurrences underlying the witness's opinion and a concern that the admission of character evidence beyond reputation would lead to a proliferation of collateral factual disputes, thereby impeding the conduct of trial (People v. Van Gaasbeck, supra, 189 N.Y. at 417-418, 82 N.E. 718).

Whether it was the product of the pragmatic concerns of the time or, as one noted treatise argues (7 Wigmore, Evidence §§ 1981-1982, 1986 [Chadbourn rev ed], the result of a cumulative misreading of prior precedent, the Van Gaasbeck restriction on proof of character has since been criticized as "archaic" and "paradoxical" (Michelson v. United States, 335 U.S. 469, 486, 69 S.Ct. 213, 223-24, 93 L.Ed. 168) and has been modified or rejected in a majority of jurisdictions, either by statute or judicial decision permitting opinion testimony as an alternative to reputation evidence (see, State v. Blake, 157 Conn. 99, 249 A.2d 232; Richmond v. City of Norwich, 96 Conn. 582, 115 A 11, 16; Freeman v. State, 486 P.2d 967, 974-975 [Alaska]; State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969; State v. Richards, 126 Iowa 497, 102 N.W. 439, 441; Alaska Rules Evid. rule 405[a]; Ariz. Rules Evid., rule 405[a]; Ark. Rules Evid., rule 405[a]; Cal.Evid. Code § 1102; Colo. Rules Evid., rule 405[a]; Haw. Rules Evid., rule 405[a]; Idaho Rules Evid., rule 405[a]; Iowa Rules Evid., rule 405[a]; Kan.Stat.Annot. §§ 60-446, 60-447; Md. Code, Cts. & Jud.Proc. § 9-115; Minn. Rules Evid., rule 405[a]; Mont. Rules Evid., rule 405[a]; Neb.Rev.Stat. § 27-405; Nev.Rev.Stat. § 48.045; N.J. Rules Evid., rule 47; New Mex. SCRA, rule 11-405; N.D. Rules Evid., rule 405; N.D. Rules Evid., rule 405; Ohio Rules Evid., rule 405[A]; Okla.Stat.Annot., tit. 12, § 2405[A]; Ore.Evid Code, ch. 40.350, rule 608; R.I. Rules Evid., rule 405[a]; S.D. Code Laws § 19-12-6, rule 405[a]; Tex Rules Crim.Evid., rule 405[a]; Utah Rules Evid., rule 405[a]; Vt. Rules Evid., rule 405; W.Va. Rules Evid., rule 405[a]; Wis.Stat.Annot. § 904.05; Wyo. Rules Evid., rule 405[a]; but see, Del. Rules Evid., rule 405; Fla.Stat.Annot. § 90.405; Me. Rules Evid., rule 405; Mich. Rules Evid., rule 405; Wash. Rules Evid., rule 405). Both the Model Code of Evidence (rule 306[2][a] and the Uniform Rules of Evidence (rule 405, 13A ULA [Master ed.] provide for the acceptance of personal opinion as character evidence. Further, the Federal Rules of Evidence now provide that "[i]n all cases in which evidence of character * * * is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion" (rule 405[a].

The Van Gaasbeck rule has fallen into disfavor because it, quite simply, does not promote the truth-seeking process. The rule is objectionable because it requires rejection of the more reliable form of proof, i.e., the opinions of those in a position to know the accused's character, while exposing the trier of fact to unverifiable hearsay of unknown origin. Further, it places the jury in the difficult position of having to evaluate the validity of so nebulous a concept as the opinion held of the defendant by the "general community," while the personal opinions of the testifying witnesses, which may readily be examined for credibility, bias and reliability through traditional forms of cross-examination, must be ignored. As Wigmore notes: "The Anglo-American rules of evidence have occasionally taken some curious twistings in the course of their development; but they have never done anything so curious in the way of shutting out evidential light as when they decided to exclude the person who knows as much as humanly can be known about the character of another, and have still admitted the secondhand, irresponsible product of multiplied guesses and gossip which we term 'reputation'." (7 Wigmore, op. cit., at 244; accord, Jones, Evidence § 4:45, at 474; Morgan, Basic Problems of State and Federal Evidence, at 311 [Weinstein 5th ed].) For these reasons, it has been said that "the rules * * * pertaining to the method of proving character [in New York] most urgently require reform" (Fisch, New York Evidence § 185, at 110 [2d ed] [emphasis in original].

When viewed against this impressive array of authority favoring change, the reasons for retaining the Van Gaasbeck rule seem insubstantial. The "practical" concerns that were expressed in Van Gaasbeck, i.e., the difficulty of ascertaining the facts underlying the witness's opinion and the danger of proliferating collateral factual issues, can be resolved by careful tailoring of the rules governing character evidence. The Federal Rules, for example, provide that only the witness's opinion may be elicited on direct examination; questioning about specific acts or the facts which form the basis for the witness's opinion is permitted only if the prosecution wishes to explore the matter further on cross-examination (Fed. Rules Evid., rule 405[a]; accord, Cal Evid. Code § 1102). This limitation effectively eliminates any prejudice or unfair surprise to the prosecution that might flow...