People v. Bennett

• Decision Date: 12 May 1992
• Citation: 593 N.E.2d 279,79 N.Y.2d 464,583 N.Y.S.2d 825
• Court: New York Court of Appeals Court of Appeals
• Parties: , 593 N.E.2d 279 The PEOPLE of the State of New York, Appellant, v. Robert O. BENNETT, Respondent.

Page 825

583 N.Y.S.2d 825

79 N.Y.2d 464, 593 N.E.2d 279

The PEOPLE of the State of New York, Appellant, v. Robert O. BENNETT, Respondent.

Court of Appeals of New York.

May 12, 1992.

David A. Wait, Dist. Atty. (Thomas J. McNamara, Melville, and John A. Siliciano, Ithaca, of counsel), for appellant.

Stephen R. Coffey and Barbara G. Billet, Albany, for respondent.

OPINION OF THE COURT

KAYE, Judge.

In this prosecution for rape and related crimes, the central issue is whether the trial court erred in its pretrial ruling that would have allowed the People to cross-examine defendant (if he testified in his own defense) regarding two other criminal charges that were pending against him. We conclude that, in the circumstances presented, the pretrial ruling was erroneous, and the Appellate Division correctly ordered a new trial on that basis.

On September 10, 1988, the victim--a married college professor--was driving from her home near Ithaca to a family wedding in Lake George, when at about 7:30 P.M. she was stopped on the Northway by defendant, then a uniformed State Trooper. At defendant's request, she gave him her license and registration. Defendant told her she was driving erratically and had failed to signal a lane change properly. He instructed her to leave her car, walk a straight line, and then enter the passenger seat of the patrol car, where he told her she could be in serious trouble, including "driving while intoxicated" charges, and would have to blow in his face as a sobriety test. While she was doing this a second time at defendant's behest, he put his mouth on hers, began fondling her, and told her he was going to "make it" or "do it" with her, but first had to go to State Police barracks for a condom. The victim followed defendant to the barracks in her own car, though he retained her license and registration. She testified that she remained terrified throughout this entire period believing that, with defendant armed, any escape attempt in an unfamiliar area would be futile and possibly even fatal.

At the barracks, defendant placed the victim in the police car, instructing her to remain there while he went inside. She testified that she was still frozen with fear, not knowing whether defendant had friends in the barracks who knew what he was doing. On his return, they drove off while the victim--believing it vital to her safety--engaged defendant in conversation. When they reached a secluded area, defendant, still armed, sexually attacked her. He thereafter returned with her to the barracks and allowed her to proceed to her destination, where she explained to the wedding guests that she was late because of car trouble. On her return home--after being unable to eat or sleep for two days, and overcoming her fear that defendant would harm her--the victim contacted a local rape crisis center, which ultimately led to a report to the State Police, an investigation, and defendant's arrest. Defendant was convicted of rape, sodomy, sexual abuse, coercion, unlawful imprisonment and official misconduct.

Essentially two errors were alleged on defendant's appeal to the Appellate Division--the first relating to a pretrial ruling that would have permitted the People to cross-examine defendant regarding two other pending charges, the second relating to expert testimony regarding rape trauma syndrome. A divided Appellate Division overturned defendant's conviction on the first issue, 169 A.D.2d 369, 573 N.Y.S.2d 322, and a Justice of that court granted leave to appeal. We now affirm.

The Pretrial Ruling Regarding Other Pending Charges

While awaiting trial, defendant was indicted for official misconduct and criminal impersonation (Penal Law § 195.00[1]; § 190.25[3]. Those later charges arose out of defendant's efforts, after he had been suspended from the force, to obtain the victim's records from the Department of Motor Vehicles (DMV) by representing that he was a State Trooper investigating a crime in which she was a defendant.

Before trial on the rape charges commenced, the People advised defendant that, if he testified, they would cross-examine him about specified prior criminal and immoral acts affecting his credibility. On defendant's pretrial motion addressed to the permissible scope of cross-examination regarding those acts, the trial court precluded the People's cross-examination regarding complaints by other women that defendant, as a State Trooper, had for no reason pulled them over and engaged in inappropriate behavior. Additionally, the court limited the People's inquiry into two areas involving claims of assault by defendant's wife and mistress. As to the DMV incident, however, the trial court concluded that if defendant testified, he would be deemed to have waived his privilege against self-incrimination and exposed to cross-examination. Defense counsel announced before opening statements that, based on that ruling, defendant would not testify.

The Appellate Division determined that the trial court's ruling was erroneous, reversed the conviction, and ordered a new trial. Relying on People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865, the court observed that permitting cross-examination of a defendant regarding other pending unrelated charges, for credibility purposes only, unduly compromised defendant's right to testify in the case on trial and jeopardized the corresponding right not to incriminate himself as to the other charges. The Appellate Division further concluded that the People's attempt to invest the evidence with independent relevance aside from credibility did not bear up under scrutiny. We agree with both conclusions.

Defendants who take the stand, like other witnesses, place their credibility in issue, and thus may be cross-examined on past criminal or immoral acts affecting credibility (People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637; People v. Johnston, 228 N.Y. 332, 340, 127 N.E. 186). Recognizing the importance of a defendant's informed choice whether or not to testify, in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, we held that a defendant is entitled to a pretrial ruling on the scope of permissible cross-examination as to such prior misconduct (34 N.Y.2d, at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413). A Sandoval ruling, which balances the probative value of the evidence against the risk of unfair prejudice, is " 'largely, if not completely' a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, and * * * generally no further review by this Court is warranted." (People v. Mattiace, 77 N.Y.2d 269, 274, 567 N.Y.S.2d 384, 568 N.E.2d 1189.)

While per se rules in this area are eschewed, where defendant's misconduct is another pending criminal charge a more categorical approach is appropriate because of the constitutional protections against self-incrimination (N.Y. Const., art. I, § 6; US. Const. 5th Amend.). Cross-examination on an unrelated pending criminal charge, solely for the purpose of impeaching defendant's credibility, is impermissible ( People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865, supra ). As we held in Betts:

"Allowing a defendant-witness' credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant's right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter." (70 N.Y.2d, at 295, 520 N.Y.S.2d 370, 514 N.E.2d 865.)

At the Sandoval hearing in this case, the People urged that cross-examination regarding defendant's alleged unlawful attempt to obtain complainant's driving records was appropriate because it went "directly to the issue of [defendant's] credibility." Betts unambiguously held that "a defendant-witness does not generally and automatically waive the privilege against self-incrimination as to pending collateral criminal charges" (70 N.Y.2d, at 294-295, 520 N.Y.S.2d 370, 514 N.E.2d 865). On the authority of Betts--decided nearly two years before trial--the People should therefore have been denied permission to cross-examine defendant on those charges.

The Appellate Division majority also correctly rejected the People's alternative claim that the DMV incident was related to the rape charges, as evincing a consciousness of guilt. We need not reach the question whether consciousness of guilt could ever be a sufficient nexus to permit cross-examination under Betts because we conclude that the pending charges do not evidence defendant's consciousness of guilt. ¹

Certain postcrime conduct is "indicative of a consciousness of guilt, and hence of guilt itself." (People v. Reddy, 261 N.Y. 479, 486, 185 N.E. 705.) Reddy, a case involving evidence of flight, noted that such evidence betrayed an awareness of guilt, citing Proverbs (ch XXVIII, v 1): "The wicked flee, even when no man pursueth; but the righteous are bold as a lion." (See also, People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263; People v. Fiorentino, 197 N.Y. 560, 567, 91 N.E. 195.) Other conduct that has been recognized as revealing a guilty mind includes false statements or alibis (People v. Moses, 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4; People v. Leyra, 1 N.Y.2d 199, 208, 151 N.Y.S.2d 658, 134 N.E.2d 475); coercion or harassment of witnesses (People v. Shilitano, 218 N.Y. 161, 179, 112 N.E. 733; see, People v. Plummer, 36 N.Y.2d 161, 365 N.Y.S.2d 842, 325 N.E.2d 161); and abandonment or concealment of evidence (People v. Alexander, 37 N.Y.2d 202, 204, 371 N.Y.S.2d 876, 333 N.E.2d 157; People v. Butterly, 25 N.Y.2d 159, 162-163, 303 N.Y.S.2d 57, 250 N.E.2d 340).

Consciousness of guilt evidence has consistently been viewed as weak because the connection between the conduct and a guilty mind often is tenuous (see, People v. Yazum, 13 N.Y.2d, at 304, 246 N.Y.S.2d 626...