People v. Buggs

• Decision Date: 01 March 1985
• Citation: 109 A.D.2d 1052,487 N.Y.S.2d 202
• Parties: PEOPLE of the State of New York, Respondent, v. Earl BUGGS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 202

487 N.Y.S.2d 202

109 A.D.2d 1052

PEOPLE of the State of New York, Respondent, v. Earl BUGGS, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

March 1, 1985.

Edward J. Nowak by Peter Braun, Rochester, for appellant.

Howard R. Relin, Dist. Atty. by William Brongo, Rochester, for respondent.

Before DILLON, P.J., and HANCOCK, DOERR, GREEN and SCHNEPP, JJ.

MEMORANDUM:

On appeal from a judgment upon conviction of manslaughter in the first degree (Penal Law § 125.20[1] ), defendant faults the prosecutor for presenting improper rebuttal, rendering a prejudicial summation and improperly cross examining a defense witness. Defendant also argues that the trial court's charge on defendant's flight was improper. None of these claims requires reversal and the claim relating to the prosecutor's summation was not preserved for review (see CPL 470.05[2]; People v. Dawson, 50 N.Y.2d 311, 324, 428 N.Y.S.2d 914, 406 N.E.2d 771).

Defendant confessed to stabbing the victim with a steak knife. His defense was justification. Defense witnesses, including the defendant, testified that the victim had threatened to kill the mother of defendant's two children and had in fact assaulted this woman several times. Defendant claimed that prior to the stabbing, he saw a flash of metal in the victim's hand. On rebuttal, the prosecutor called several witnesses to impeach the testimony that the victim had a knife. This was entirely proper.

The People had the burden to disprove the defense of justification beyond a reasonable doubt (Penal Law § 25.00). A party may properly impeach opposing testimony provided it is not collateral to the issue upon which that witness has testified (see People v. Harris, 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803). Evidence is not collateral if it is relevant to some issue other than credibility (see 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). The issue of whether the victim brandished a knife prior to or during the incident was not collateral, particularly given the fact that defendant failed to mention in his confession that the victim possessed a knife (see People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Fontaine, 105 A.D.2d 710, 481 N.Y.S.2d 151; see also, CPL 260.30[7] ).

The prosecutor's cross-examination of a defense witness concerning her failure to pay rent was error. Failure to pay a debt does not tend to show moral turpitude (see People v. Montlake, 184 App.Div. 578, 583, 172 N.Y.S. 102). The error was harmless, however, given the cumulative nature of the witness' testimony and the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213...