People v. Beavers

• Decision Date: 14 April 1987
• Citation: 127 A.D.2d 138,514 N.Y.S.2d 235
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael BEAVERS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 235

514 N.Y.S.2d 235

127 A.D.2d 138

The PEOPLE of the State of New York, Respondent, v.Michael BEAVERS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 14, 1987.

David Yamada, of counsel(Philip L. Weinstein, New York City, attorney), for defendant-appellant.

Lisa M. Rubin, of counsel(Jeremy Gutman with her on the brief; Mario Merola, New York City, attorney), for respondent.

Before SANDLER, J.P., and SULLIVAN, MILONAS, KASSAL and SMITH, JJ.

SULLIVAN, Justice.

Convicted of the shooting death of Anthony White outside a poolroom on the evening of December 21, 1983, on the basis of a positive identification of him as the assailant by an eyewitness, who had known him since 1965, defendant does not challenge the sufficiency of the proof of guilt.Rather, he claims, inter alia, that the court erred in failing to preclude the People on their rebuttal case from using evidence of collateral matters for the sole purpose of impeaching the defense witnesses' credibility and in failing to give a curative charge on the limited use of such evidence.

At trial, defendant's mother, Mildred Beavers, took the stand in support of his alibi defense.She testified that defendant had not been living with her on December 21, 1983, but had been in her apartment on that date between 7:00 and 11:00 p.m., which encompassed the period when the killing occurred.She stated that defendant had come to her apartment to pick up two kittens for "Antoinette," and that she was able to fix his time of arrival and departure by the air time of certain programs that were on the television.A school crossing guard, she remembered the date because "it was two days before school was going to close before the Christmas holiday."On cross-examination, she denied ever having spoken to a Sergeant Viggiano, ever having told him that she had not seen her son since Thanksgiving and that the last time she had spoken to him was when he telephoned her on Christmas, and ever having told him that defendant might be in Memphis, Tennessee with a woman named Gwendolyn Newman.

Defendant also called Frank Mazion, allegedly Mrs. Beaver's common-law husband, who corroborated her testimony that defendant was at the apartment from 7:00 to 11:00 p.m. on the night of the shooting.He denied any knowledge of a calendar with the date December 21, 1983 encircled.

On rebuttal, the People recalled Sergeant Viggiano, who had testified on the People's case as to the circumstances of defendant's arrest on December 29, 1983.According to Sergeant Viggiano, he telephoned Mrs. Beavers on December 27th, and, after identifying himself as a police officer, asked to speak to defendant with respect to an incident which he was investigating.Mrs. Beavers told him that she had not seen defendant since Thanksgiving, although he had telephoned her on Christmas Day, and that she did not know where he was currently living, except that she believed he"had a woman" named Gwendolyn Newman, who, at the time, was somewhere in Memphis, Tennessee.In the course of the conversation, Mrs. Beavers stated that she lived alone.

Although defendant failed to object to Sergeant Viggiano's rebuttal testimony, he now argues that since the officer's testimony dealt with collateral matter it should not have been permitted, even with limiting instructions.According to defendant, Sergeant Viggiano's testimony with respect to these "collateral matters" had only one purpose, namely, the impeachment of his alibi witnesses.While defendant has waived his right to raise this claim on appeal (CPL 470.05[2];People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771;People v. Castro, 101 A.D.2d 392, 398, 475 N.Y.S.2d 840, affd.65 N.Y.2d 683, 491 N.Y.S.2d 623, 481 N.E.2d 255), we find that even if the issue were preserved reversal would not be warranted since the rebuttal evidence was properly received after an appropriate instruction to the jury.Inasmuch as the issue is a recurring one, we take this opportunity to clarify the circumstances under which testimony such as Sergeant Viggiano offered may be received in rebuttal.

The general rule is that the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.(People v. Pavao, 59 N.Y.2d 282, 288, 464 N.Y.S.2d 458, 451 N.E.2d 216, citingRichardson, Evidence [Prince, 10th ed.], § 491, p. 477;see, also, People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den.396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96.)"It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility."(People v. Pavao, supra, 59 N.Y.2d at 288-289, 464 N.Y.S.2d 458, 451 N.E.2d 216;accord, People v. Zabrocky, 26 N.Y.2d 530, 535, 311 N.Y.S.2d 892, 260 N.E.2d 529;Richardson, Evidence, supra§ 491, p. 477.)As the Court of Appeals has noted, "The collateral evidence rule [rests] upon auxiliary policy considerations of preventing undue confusion of issues and unfair surprise by extrinsic testimony."(People v. Schwartzman, supra, 24 N.Y.2d at 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, citing3 Wigmore, Evidence [3rd ed.] §§ 979, 1002.)

Evidence is not collateral, however, when it is relevant to some issue other than credibility and is offered for the purpose of disproving facts set forth by a witness for the opposing side on direct examination.(People v. Wise, 46 N.Y.2d 321, 328, 413 N.Y.S.2d 334, 385 N.E.2d 1262;People v. Schwartzman, supra, 24 N.Y.2d at 246, 299 N.Y.S.2d 817, 247 N.E.2d 642;People v. Galletti, 55 A.D.2d 154, 157, 391 N.Y.S.2d 109.)Parenthetically, it should be noted, this was precisely the substance of the trial court's instruction to the jury, "A rebuttal witness is [one] who is called in order to rebut testimony that has been introduced by the defense and for that purpose only."In Schwartzman, the court, after setting forth the rationale underlying the collateral matter rule, went on to limit its scope, explaining:

[T]he objection of confusion of issues is inapplicable if the evidence sought to be introduced is admissible for any purpose other than contradiction.Likewise, it is not unfair to expect a party to refute testimonial errors when the subject of the error is a material issue in the case, for upon such subjects the parties should in any event come prepared.Therefore, the policy objections to the contradiction of a witness' answers are inapplicable if evidence of the fact contradicted would be admissible for any purpose independent of the contradiction.It follows that a fact is not a collateral matter if it could be shown in evidence for any purpose independent of the contradiction.(24 N.Y.2d at 245-246, 299 N.Y.S.2d 817, 247 N.E.2d 642.)

The distinction between matters collateral and those that are not is often imprecise and difficult to draw.(See, People v. Chin, 67 N.Y.2d 22, 28, 499 N.Y.S.2d 638, 490 N.E.2d 505.)A witness's bias, interest, or hostility is not, however, collateral and may be shown...