People v. Bartholomew

• Decision Date: 26 March 1973
• Citation: 73 Misc.2d 541,342 N.Y.S.2d 798
• Parties: PEOPLE of the State of New York v. Lionel BARTHOLOMEW, Defendant.
• Court: New York County Court

Page 798

342 N.Y.S.2d 798

73 Misc.2d 541

PEOPLE of the State of New York v. Lionel BARTHOLOMEW, Defendant.

Nassau County Court, Special Term, Part I.

March 26, 1973.

William Cahn, Dist. Atty., Nassau County, Mineola, for the people.

Biaggi, Ehrlich, Galiber & Lang, New York City, for defendant.

LYMAN H. SMITH, Judge (By Assignment).

On November 16, 1972, a trial jury found the defendant guilty of the First, Third and Fifth Counts of Indictment No. 34766/72 (Bribe Receiving, Penal Law Section 200.10, Official Misconduct, Penal Law Section 195.00 and Promoting Prison Contraband, Second Degree, Penal Law Section 205.20). (See People v. Bartholomew, 71 Misc.2d 876, 337 N.Y.S.2d 906).

On January 15, 1973, defendant moved to set aside the jury verdict and for a new trial on grounds of newly discovered evidence pursuant to subdv. 3, sec. 330.30 of the Criminal Procedure Law. That motion was denied without prejudice, and with leave to renew, by decision of this Court dated and entered January 22, 1973. Reference is hereby made to that decision for a review of the pertinent factual background essential to an ultimate determination of the issues to be decided herein. Reference is also made to a decision of this Court filed and entered, sub nom. People v. Dodge, et al., 1973, Co.Ct., 73 Misc.2d 80, 341 N.Y.S.2d 471.

Exercising the leave of the Court, defendant again moves to set aside the trial verdict and for a new trial.

Specifically, the defendant now moves to set aside the verdict on two grounds: first, the defendant contends that 'newly discovered evidence', viz., a 1953 anamnesis and purported psychiatric report concerning one Charles Di Umberto (a principal trial witness for the People) (see 71 Misc.2d 876, 337 N.Y.S.2d 906), has been uncovered since the trial, which could not have been discovered by the defendant at the trial, even with due diligence on his part, and that such evidence is of sufficient substance and character to create a probability that, had this 'evidence' been received upon the trial, the verdict would have been more favorable to the defendant; secondly, he contends that the prosecution concealed this 'evidence', and violated principles laid down in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

As to the defendant's first contention, a careful review of the defendant's application compels two conclusions: 1) that the moving papers themselves fail to comply with the specific provisions of CPL 330.40(2)(e)(i)(ii); and 2) that, in any event, the proffered psychiatric records will not satisfy the definitive standards and requirements for 'newly discovered evidence', contemplated by the statutory and decisional law.

The papers in support of the defendant's application consist of an affidavit by defense counsel in which he refers to the 'newly discovered evidence' as being the aforementioned psychiatric reports of the People's chief witness, Charles Di Umberto. Nowhere in the affidavit, nor in his moving papers, does defense counsel indicate the source of his knowledge as to the contents of these psychiatric reports. He alleges, without supporting evidence, that these psychiatric reports were prepared by doctors from the 'Department of Mental Hygiene, Ossining Correctional Facility'. He further alleges that these reports carry a diagnosis of the witness, Charles Di Umberto, as a 'pathological liar', a 'psychopathic personality' and one whose 'statements must be discounted.' He then concludes, without corroborative proof, that the District Attorney knew of the witness' medical and psychiatric history and failed to produce it. Nothing is offered, other than these conclusory allegations, to support the claimed prior knowledge of the District Attorney. Defendant's counsel in his affidavit apparently quotes, at length, and verbatim, from reports from Sing Sing Prison and Dannemora State Hospital, without any allegations as to how he obtained knowledge of what is purportedly contained in these reports. Nowhere in his affidavit, does counsel even allege that he viewed these reports. In passing, it must be noted that these reports are privileged as a matter of law and, thereby, fall within the statutory protection of the doctor-patient privilege conferred by CPLR 4504. (Wilson v. State of New York, 36 A.D.2d 559, 317 N.Y.S.2d 546; Boykin v. State of New York, 13 Misc.2d 1037, 179 N.Y.S.2d 197; aff'd 7 A.D.2d 819, 180 N.Y.S.2d 884; see also decision of this Court People v. Dodge et al., Supra).

This is not evidence in chief. It is hearsay. It is conclusory. It is remote. It is privileged. The CPL, which codified the case law with respect to procedure for making a motion to set aside a verdict, has not been complied with in the case at bar. The papers should contain sworn allegations of fact based upon personal knowledge, or upon information and belief, provided that, if upon information and belief, the source of the information and the grounds for such belief must be set forth. (CPL 330.40, subdv. 2(a)). The moving papers fail to meet this standard. There is no disclosure as to whether the allegations are on personal knowledge or on information and belief, nor is there any revelation as to the basis of the affiant's belief. CPL 330.40 subdv. 2(e)(i) and (ii) specifically authorizes the Court in these circumstances to deny the motion. Therefore, this Court finds, De facto and De jure, that the moving papers fail to comply with the provisions of CPL 330.40(2)(a), and thus denies the motion pursuant to CPL 330.40(2)(e)(i)(ii).

Since, however, precise questions concerning the use upon trial of a witness' prior prison records have now been raised, apparently for the first time in our State, the merits of such issues, particularly upon a post-trial motion to set aside a jury verdict (as in the instant case) will warrant the further attention of the Court.

Subdv. 3, section 330.30 of CPL, provides that the 'new evidence' must be of 'such character as to create a probability that had such evidence been received at the trial, the verdict would have been more favorable to the defendant.' (People v. Gambacorta, 1910, 197 N.Y. 181, 90 N.E. 809; People v. Gordon, 1932, 142 Misc. 25, 254 N.Y.S. 424; People v. Badger, 1926, 217 App.Div. 424, 216 N.Y.S. 723, aff'd 243 N.Y. 632, 154 N.E. 635; People v. Devine, 1916, 97 Misc. 205, 162 N.Y.S. 852; People v. Henry, 1908, 127 App.Div. 489, 111 N.Y.S. 1005; People v. Poole, 1908, 127 App.Div. 122, 111 N.Y.S. 258, aff'd 199 N.Y. 542, 93 N.E. 1128; People v. Kehler, 1941 Co.Ct., 28 N.Y.S.2d 71; People v. Luciano, 1937, 164 Misc. 167, 299 N.Y.S. 132, aff'd 251 App.Div. 887, 298 N.Y.S. 629, appeal dismissed in part 275 N.Y. 547, 11 N.E.2d 747, aff'd 277 N.Y. 348, 14 N.E.2d 433, reargument denied 278 N.Y. 624, 16 N.E.2d 129; People v. Giordano, 1932, 144 Misc. 108, 259 N.Y.S. 178; People v. Enlind, 1922, 120 Misc. 42, 198 N.Y.S. 436, 40 N.Y.Crim.Rep. 241, appeal dismissed 208 App.Div. 723, 202 N.Y.S. 943, aff'd 214 App.Div. 277, 212 N.Y.S. 77.

CPL 330.30(3) further requires the 'evidence ' must be of such a nature that it could not have been discovered before the trial. (People v. Galler, Co.Ct., 37 N.Y.S.2d 482, aff'd 266 App.Div. 675, 40 N.Y.S.2d 126, mot. for lv. to rearg. den. 266 App.Div. 733, 41 N.Y.S.2d 908; see also, U.S. ex rel. Fein v. Deegan, 410 F.2d 13, 2d Cir., 1969, cert. den. 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450.) That this 'evidence' was not discovered pre-trial in this case hardly sustains the conclusion that it could not have been discovered. In this regard, defendant has failed in this motion to carry his burden of proof.

In order to assess the statutory validity of defendant's motion, we must now look to the prospective uses to which this 'new evidence' could have been used upon the former trial, or might be used upon a new trial.

From his application it is apparent the defendant's primary purpose is to use the witness' psychiatric reports to attack the credibility of the witness. Laying aside the issue of the privileged nature of these reports, it is clear that the character of this 'evidence', standing alone, as a hearsay diagnostic report, will dictate that it is not admissible in evidence. Restricted to its use on cross-examination, the defendant will then be foreclosed from offering extrinsic evidence to contradict any answer the defendant might give while on the stand under cross-examination. In other words, the defense counsel could not introduce the psychiatric reports nor could he call doctors to the stand to testify on the question of the witness' credibility. (People v. Duncan, 13 N.Y.2d 37, 241 N.Y.S.2d 825, 191 N.E.2d 888; People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549; People v. McCormick, 303 N.Y. 403, 103 N.E.2d 529; People v. Perry, 277 N.Y. 460, 14 N.E.2d 793; People v. De Garmo, 179 N.Y. 130, 71 N.E. 736). This would not, of course, prohibit the cross-examiner from continuing cross-examination on the subject in anticipation that the witness might change his testimony. (People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637).

The decisional law in this State generally indicates that a new trial based on newly discovered evidence should not be granted if the evidence is merely of an impeaching nature. (People v. Williams, 35 A.D.2d 1023, 316 N.Y.S. 473; People v. Bolster, 24 A.D.2d 774, 263 N.Y.S. 574; People v. Shepard, Co.Ct., 142 N.Y.S.2d 882; People v. Skeete, 205 Misc. 1118, 132 N.Y.S.2d 368; People v. McCarthy, 256 App.Div. 522, 10 N.Y.S.2d 978, aff'd 280 N.Y. 763, 21 N.E.2d 525; cf. People v. Rensing, 14 N.Y.2d 210, 250 N.Y.S.2d 401, 199 N.E.2d 489). (See, also, U.S. ex rel. Fein v. Deegan, Supra. The federal authorities follow the same rule). In this regard, it must be emphasized that the witness' credibility was under extended attack during the trial by a continuous and repetitious review on cross-examination of his extensive criminal record, including, but not limited to his...