People v. Burgos
| Citation | 69 A.D.2d 783,415 N.Y.S.2d 219 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Carlos BURGOS, Defendant-Appellant. |
| Decision Date | 10 April 1979 |
| Court | New York Supreme Court — Appellate Division |
R. J. Carlucci, New York City, for respondent.
B. P. Levy, Garden City, for defendant-appellant.
Before KUPFERMAN, J. P., and FEIN, MARKEWICH, and BLOOM, JJ.
Judgment, Supreme Court, Bronx County, rendered on October 5, 1976, affirmed on constraint of People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691.
It is clear that the extended examination of defendant's alibi witness on the question of whether or when they came forward to disclose the facts constituting the alibi to the police or to the District Attorney had some bearing on the credibility of those witnesses. Nevertheless, in the circumstances of this case, it was improper to permit such examination, and comment thereon in summation by the prosecutor (People v. Milano, 59 A.D.2d 852, 399 N.Y.S.2d 226; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679; People v. Mims, 59 A.D.2d 769, 398 N.Y.S.2d 721; People v. Smoot, 59 A.D.2d 898, 399 N.Y.S.2d 133). However, in light of the overwhelming evidence of defendant's guilt, such error was harmless beyond a reasonable doubt (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). Accordingly, I concur for affirmance.
However, the increasing frequency with which the issue is presented to us requires that the circumstances under which such evidence is admissible be codified. I would permit introduction thereof only if the Trial Court, at the time such proof is offered, charges the jury that 1) the witness is under no duty to disclose any evidence of the alibi defense, either to the police or to the district attorney (People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691; People v. Maschi, 65 A.D.2d 405, 411, 411 N.Y.S.2d 298, 301), and that no inference as to guilt or innocence may be drawn by the jury from the failure to disclose and 2) the evidence may be considered by them only in connection with the credibility of the witness. If the prosecution utilizes the failure to disclose in summation, the admonition by the Trial Court should be repeated in the main charge.
Of course, this has no application to a defendant. As to him, cross examination about post-arrest silence is violative of his 5th Amendment rights (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; People v. Smoot, supra ), unless he introduces the issue.
The majority in affirming relies on People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691, which affirmed a conviction despite the cross-examination of the alibi witnesses as to whether and when they disclosed to the district attorney or the police the facts constituting the alibi. However, in Brown, as the court noted, distinguishing People v. Milano, 59 A.D.2d 852, 399 N.Y.S.2d 226, there was no objection to the cross-examination. In our case, as in Milano, there was objection. (see, People v. Maschi, 65 A.D.2d 405, 411 N.Y.S.2d 298; People v. Smoot, 59 A.D.2d 898, 399 N.Y.S.2d 133; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679).
In this case defendant's wife testified that defendant was at home at the time of the murder, attending his child's birthday party. The cross-examination follows, referable to the day of defendant's arraignment:
Q. "Did you tell anybody else on that day or that week about the fact that the date that Mr. Burgos was allegedly accused of a murder and the time that he was accused for committing this alleged crime was the same date and time that you were all present at this birthday party? Did you tell anybody else on that particular week in the middle of November besides Leonardo Rios?
A. I don't recall.
Q. Do you recall whether you told it to any District Attorney who was present?
A. No, I didn't speak to no district attorney.
Q. Do you recall whether you told it to any other police officers who were present?
A. No.
Q. Did Mr. Burgos have an attorney at that time?
A. Mr. Cohen, when he came.
Q. Was Mr. Cohen there that week?
A. Yes.
Q. Did you tell Mr. Cohen about the fact that well, did you tell Mr. Cohen the same thing you discussed with Leonardo Reyes?
A. Yes.
Q. You told him that week?
A. Yes.
Q. And, did you tell anybody else that week about the same thing you had discussed with Leonardo Rios and Mr. Cohen?
A. No, I don't think so.
Q. Now, outside of Leonardo Rios and Mr. Cohen, did you ever discuss the time or any other aspect of this case with anybody?
A. No.
Q. Well, you recall being with me yesterday afternoon, did you not?
A. Yes.
Q. And, who else was present at that time?
A. Mr. Cohen.
Q. And, you discussed the date with me at that time, didn't you, yesterday afternoon?
A. Yes.
Q. And, that was in my office, right?
A. Yes.
Q. Prior to yesterday afternoon with Mr. Cohen, did you ever tell any district attorney or other law enforcement personnel about the fact that Carlos was home on the night of October 15th from 11:30 or so up until the morning of October 16 when he went to bed?
A. No.
Plainly the questions implied a duty to disclose the alibi to the prosecution. As Brown, supra, relied on by the majority states at 62 A.D.2d p. 720, 405 N.Y.S.2d p. 695: " * * * there is no duty on the part of an alibi witness to report information as to the alibi to the police * * * ."
The cross-examination of the defendant's half-brother repeated the pattern as follows:
Q "Now, prior to yesterday afternoon, before yesterday afternoon when you spoke to me, did you at any time ever contact any law enforcement personnel whatsoever and by that I mean police officers, district attorney office, anybody with either of those branches?
A No, sir.
Q Yesterday was the first time you spoke with anyone from the District Attorney's office?
A Yes."
That the purpose of such cross-examination was to suggest to the jury that there was a duty of the alibi witnesses to report their alibi to the police or the district attorney is manifest from the summation by the district attorney, as follows:
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...improper, was error to a lesser degree and could have been cured by appropriate instruction (see concurring opinion in People v. Burgos, A.D.2d, 415 N.Y.S.2d 219). None was However, I cannot agree that, given the facts here presented, the search of the car was improper. This was not a case ......
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