People v. Bowen

• Decision Date: 21 December 1978
• Citation: 411 N.Y.S.2d 573,65 A.D.2d 364
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward BOWEN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 573

411 N.Y.S.2d 573

65 A.D.2d 364

The PEOPLE of the State of New York, Respondent, v. Edward BOWEN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1978.

David G. Secular, New York City, of counsel (Martin Erdmann and William E. Hellerstein, New York City, attys.), for defendant-appellant.

Carol Y. Kendrick, New York City, of counsel (Alan D. Marrus, New York City, with her on the brief; Mario Merola, Dist. Atty.), for respondent.

Before KUPFERMAN, J. P., and BIRNS, FEIN, LANE and SANDLER, JJ.

BIRNS, Justice:

The defendant was convicted by a jury of attempted rape in the first degree and sentenced to a term of 5-15 years.

On this appeal, we are confronted by two claims of the defendant. As outlined in the dissenting opinion, they are: First, that the defendant's constitutional rights were violated when he was cross-examined concerning his failure, at the time of his arrest, to give the police the exculpatory account to which he testified at trial. Second, that the defendant's right to a fair trial was gravely impaired when he was cross-examined concerning the events underlying a previous arrest in a manner "painstakingly" calculated to persuade the jury that he was predisposed to commit the same kind of crime with which he was charged.

We disagree with the reasons expressed in the dissenting opinion which would accept these claims of the defendant, reverse the conviction herein and order a new trial. We would affirm the conviction for the reasons which follow.

On May 13, 1975, at about 6:25 A.M., Gladys Ramos left her home and walked one and one-half blocks to a garage on River Avenue where she kept her car parked. Inside the garage, she was confronted by a man pointing a gun at her. When she screamed, the man grabbed her by the neck and started choking her, during which period she kept screaming. Ultimately, she felt a blow to the side of her head and became unconscious. When she regained consciousness, police officers were standing over her and she was lying in the back of the garage with her dress and slip pushed up to her chest and her pantyhose and panties down to her knees exposing her lower torso. Ms. Ramos' identification of the defendant at trial was at first somewhat uncertain, but she then stated, "The gentleman that's sitting there is the face that I still keep seeing. I cannot forget that face."

Victor Rodriguez resided in a fourth floor apartment with windows facing Ms. Ramos' garage. At the time and date with which we are concerned, Mr. Rodriguez heard a woman's screams, looked out the window to see what was happening, saw that the garage door was open, and realized the screams were coming from the garage. He left his window for 30 seconds to tell his brother-in-law, who lived down the hall, to call the police. Returning to his window, Mr. Rodriguez saw, "a man's hand, a black hand" closing the garage door from the inside. He remained at the window and watched the closed garage door until the police arrived minutes later. When the police opened the door, the defendant emerged and was taken into custody.

Since there was no other exist from the garage, it follows that whoever was found in the garage when the police came is the same person who closed the door from the inside. Moreover, the circumstances of this case lead to no other conclusion but that whoever closed the door from the inside is the one who attacked Ms. Ramos. When the police arrived and opened the garage door, the defendant was seen standing with gun drawn, a short distance from Ms. Ramos. The defendant at that time identified himself as a police officer. He was arrested, transported in a police car to a police precinct and two hours later, after being given the Miranda warnings, was questioned by his supervisor, Captain Lucas, a friend for 36 years, to whom he made a brief inculpatory statement.

Defendant Bowen, who was indeed a Housing Authority Patrolman for over eight years, testified he called his supervising officer prior to six o'clock that morning and asked for time off to straighten out a few problems. He armed himself with a gun, extra ammunition, a blackjack and bayonet, and wandered, without any particular destination, across the 155th Street Bridge into the Bronx. He testified that he heard Ms. Ramos' screams and ran a distance of one and one-half blocks toward the screams. This took somewhat less than 30 seconds. The defendant testified he found Ms. Ramos' garage door open about four feet and ducked inside without drawing any of the many weapons he carried. He conceded this was not good police procedure. Upon entering the garage, the defendant claimed he was immediately struck in the face and neck, and stunned, by an unknown assailant. The defendant then heard the garage door closing. Several minutes later, the police arrived and told him to throw out his gun.

Viewing the evidence up to this point, it is notable that defendant's story contradicts both the testimony of Ms. Ramos who positively identified him as her attacker, and also that of Mr. Rodriguez who told of his observations. Thus, in order for defendant's testimony to be true. Ms. Ramos would have to be mistaken or lying about her identification of the defendant as the man who attacked her at close range. Mr. Rodriguez would have to be not only mistaken about having been away from his window a brief 30 seconds, but he would have had to be lying about "a man's hand, a black hand" closing the door from the inside and about not thereafter leaving the window until the police came. We find nothing in the record to support such a possibility. Issues of credibility are primarily for the jury, and here, not surprisingly, the jury accepted the testimony of Ms. Ramos and Mr. Rodriguez. There is no basis to speculate here, as does our dissenting colleague, whether the jury accepted as "letter perfect" the testimony of Mr. Rodriguez, as a background for our consideration whether there was constitutional error warranting reversal, and this is certainly not a case where the verdict is against the weight of the evidence (Cf., People v. Yanik, 63 A.D.2d 574, 404 N.Y.S.2d 633).

Defendant's testimony was that he was a Housing Police Officer who came to Ms. Ramos' rescue and was then himself the victim of an assault by a phantom assailant. When the police arrived, beyond identifying himself as a police officer, the defendant did not report that his actions were in the line of duty (Matter of Washington v. New York City Housing Authority, 31 A.D.2d 700, 295 N.Y.S.2d 845, affd. 24 N.Y.2d 912, 301 N.Y.S.2d 642, 249 N.E.2d 481; Burns v. City of New York, 6 A.D.2d 30, 33-34, 174 N.Y.S.2d 192, 196-197; Public Housing Law, § 402(5); CPL § 1.20(34)(e)), in attempting to aid the victim of a possible crime, as he testified on the witness stand, or the fact that he, a police officer, had been assaulted. Hence, his silence where there was a duty to speak invited cross-examination. The District Attorney thus attempted to impeach defendant's testimony which was apparently tailored after the fact to explain how he, the defendant, was caught standing Flagrante delicto near Ms. Ramos' half-naked body.

Questions directed to these areas were asked by the District Attorney without objection by defense counsel. Nevertheless, the defendant claims that his right to a fair trial was violated when the court permitted the District Attorney to question him about the exercise of his constitutional right to remain silent after his arrest. In view of this claim, we shall explore the propriety of this aspect of the cross-examination (People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 802, 204 N.E.2d 846, 848; People v. Kelly, 12 N.Y.2d 248, 250, 238 N.Y.S.2d 934, 935, 189 N.E.2d 477, 478; People v. Jones, 32 A.D.2d 1069, 1070, 303 N.Y.S.2d 921, 922, affd. 27 N.Y.2d 501, 312 N.Y.S.2d 677, 260 N.E.2d 870; CPL § 470.15(6)(a)). ¹

In 1974, our Court of Appeals decided People v. Rothschild, 35 N.Y.2d 355, 361 N.Y.S.2d 901, 320 N.E.2d 639. In that case, the defendant, a police officer, was convicted of grand larceny and attempted grand larceny, both by extortion. The defendant in that case contended that the complaining witness was attempting to bribe him, and that he, the defendant, had agreed to accept money from the complaining witness in order to later arrest him for bribery. The prosecutor in that case impeached the defendant by asking whether he had told his superior officers or anyone after his arrest, that he was attempting to get the complaining witness on a charge of bribery. An objection to the inquiry was overruled, and the Court of Appeals held this was proper.

While recognizing the general rule that the silence of a defendant, after arrest, cannot be used against him on the prosecution's direct case (35 N.Y.2d at 359, 361 N.Y.S.2d 901, 320 N.E.2d 639), the Court held that defendant's silence could be used for purpose of cross-examination "when such silence is patently inconsistent with the defense asserted, and there is a patent obligation to speak" (35 N.Y.2d at 360, 361 N.Y.S.2d at 905, 320 N.E.2d at 642). The linchpin of this decision was defendant's status as a police officer.

The natural consequences of his status as a law enforcement officer would require him to promptly report any bribe or attempted bribe to his superiors, and certainly protest and reveal such an alleged scheme after his arrest to them, and to his fellow officers as well. (35 N.Y.2d at 360-361, 361 N.Y.S.2d at 905, 320 N.E.2d at 642.)

In 1976 the United States Supreme Court decided Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. In that case, the defendant, who was not a police officer, had remained silent after Miranda warnings, gave an exculpatory story at trial, and then was cross-examined about his silence. The Court held that while it is true that Miranda warnings contain no express assurance that silence will carry no penalty, such...