People v. Chin

CourtNew York Court of Appeals
Citation67 N.Y.2d 22,499 N.Y.S.2d 638,490 N.E.2d 505
Parties, 490 N.E.2d 505 The PEOPLE of the State of New York, Respondent, v. Billy CHIN, Appellant. The PEOPLE of the State of New York, Respondent, v. Peter CHAN, Appellant.
Decision Date11 February 1986

Page 638

499 N.Y.S.2d 638
67 N.Y.2d 22, 490 N.E.2d 505
The PEOPLE of the State of New York, Respondent,
Billy CHIN, Appellant.
The PEOPLE of the State of New York, Respondent,
Peter CHAN, Appellant.
Court of Appeals of New York.
Feb. 11, 1986.

Page 641

David Samel and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

James B. McCarthy, New York City, for appellant in the second above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Vija Kemanis and Amyjane Rettew, New York City, of counsel), for respondent in the first and second above-entitled actions.


TITONE, Judge.

Defendants Peter Chan and Billy Chin appeal from orders of the Appellate Division, First Department, which affirmed separate judgments of the Supreme Court, New York County, 107 A.D.2d 1092, 485 N.Y.S.2d 670, convicting them of attempted murder in the second degree, upon a jury verdict, and imposing sentence. The pivotal issue is whether they were denied their constitutional right to confront an adverse witness, the victim of the crime, when the witness invoked his privilege against self-incrimination on cross-examination. We conclude that there was no infringement of the right to confrontation, and, finding no merit to any of the other contentions raised, affirm the orders of the Appellate Division.


On December 23, 1980, an attempt was made to shoot and kill Robert Hu. The shooting was part of an ongoing battle between rival street gangs for control of the extortion and gambling protection rackets in the Chinatown section of Manhattan. Hu was the leader of the Ghost Shadows gang which some two years earlier had expelled Nickie Louie from its ranks. Louie, a codefendant acquitted at trial, formed a new gang, the White Tigers, recruiting defendants Chan and Chin and others, with the aim of compelling Hu to relinquish the "territory" to them.

Hu and Louie met at a coffee shop at about 6:45 p.m. Police officers were present conducting surveillance. In essence, Louie demanded that Hu turn over control of the Mott Street rackets to his gang. Hu refused and left the restaurant, police officers following behind.

Outside, an officer observed Chin crouched behind a parked van, holding a gun. Chin turned toward a detective and pointed the gun at him. Officers directed Chin to drop the weapon, but Chin stared at them and fled south on Mott Street. As an officer gave chase, two shots rang out.

Page 642

In the meantime, two other officers exited the coffee shop, and were directed by a passerby in the opposite direction, north towards Canal Street. Both ran as far as Canal Street, and, finding nothing of interest, returned down Mott Street. When they reached the van parked near the coffee shop, Hu yelled "Under the van. Under the van." An officer recovered a gun from underneath the van's left rear tire. By this time Chin, who had been shot in the hand, had been apprehended.

Hu had an extensive criminal record and had an extortion charge pending against him in Maryland. He was detained in jail as a material witness during trial. All parties were advised by Hu's attorney that Hu would assert his privilege against self-incrimination on all matters for which he did not receive complete immunity. The People stated that their direct examination would be limited to those questions asked in the Grand Jury for which Hu had already received immunity (CPL 190.40). Defense counsel protested that their cross-examination would be impermissibly curtailed and sought to preclude Hu from taking the stand. That application was denied.

On direct examination, Hu was questioned about the events which occurred subsequent to his departure from the coffee shop. As to each question, he asserted his privilege against self-incrimination. The prosecutor then requested that immunity be conferred, the trial court did so, and Hu responded.

Hu testified that while he was standing in front of the coffee shop, he saw Chan and Chin approach him from across the street. Chan said, "Don't go. I have something to talk to you [sic ]." When Chan and Chin tried to fire weapons, Hu ran to an unmarked police car and pounded on the hood. A voice, which Hu thought was Nickie Louie's, called out "shoot, shoot, shoot." Hu threw himself to the ground, hearing a total of three shots. Chan dropped his weapon and kicked it under the van.

At the outset of cross-examination, Hu was asked if he was a member of the Ghost Shadows on December 23, 1980, and if he possessed a gun within three months of that date. Hu refused to answer, and the prosecutor declined to request that immunity be conferred by the court, instead offering a stipulation to the effect that the questions would be answered in the affirmative. The stipulation was declined. In addition, the prosecutor urged that any cross-examination concerning the history of Chinese youth gangs would be collateral, a contention accepted by the trial court.

Defendants were able to cross-examine Hu about all matters covered in his direct examination. More specifically, they were able to inquire about Hu's acquaintance with the defendants, his knowledge of weapons, whether he carried a weapon on the day of the shooting, his observations during the shooting, including the fact that he never saw who fired the shots, the circumstances of his arrest after the shooting, and his inconsistent statements to the police and to the Grand Jury.

During and after cross-examination, defense counsel sought to strike Hu's direct testimony, claiming that certain areas of legitimate inquiry were foreclosed. These areas included Hu's fear of prosecution for the murder of a rival gang member who was present at the scene of the shooting; Hu's membership in a rival gang; the reasons for Hu's presence on Mott Street on the evening of the shooting; the conversation at the coffee shop; Hu's means of earning a living; whether the People had made any threats or promises to induce Hu to testify; and whether Hu had been involved in the shooting of defendant Chin six months after the crime.

The prosecutor responded that Hu's testimony on these points would be "cumulative" and "collateral" as they were not the subject of his direct examinations. At the completion of cross-examination, the prosecutor offered a series of stipulations, including those providing that Hu was "a member and leader of the Ghost Shadows," that he "earns his living through both legal and illegal means," and that "he has an interest in seeing that these defendants are

Page 643

convicted." All the tendered stipulations were rejected by defense counsel, and the motions to strike Hu's testimony were denied.

Defendants contend that they were unable to effectively cross-examine Hu, and that their motion to strike his direct testimony should have been granted.


It is, of course, basic that a defendant in a criminal cause has a constitutional right to confront witnesses against him through cross-examination (U.S. Const. 6th Amend.; N.Y. Const., art. I, § 6; Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347; People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924; see also, Civil Rights Law § 12), a process Wigmore describes as "beyond any doubt the greatest legal engine ever invented for the discovery of truth" (5 Wigmore, Evidence § 1367, at 32 [Chadbourn rev 1974] ). As the Supreme Court has observed, "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested" (Davis v. Alaska, supra, 415 U.S. at p. 316, 94 S.Ct. at 1110).

Although a cross-examiner may delve deep in order to attack credibility and present an alternate view of the facts, such inquiry is not open-ended. A witness may, if appropriate, invoke the constitutional shield of self-incrimination (Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624; People v. Farruggia, 77 A.D.2d 447, 452, 433 N.Y.S.2d 950). 1 Refusal to answer the cross-examiner's questions may so distort the fact-finding process that some or all of the direct testimony must be struck, lest the defendant be deprived of a fair trial (see, People v. Schneider, 36 N.Y.2d 708, 366 N.Y.S.2d 419, 325 N.E.2d 877, revg. on dissent of Justice Hopkins at 44 A.D.2d 845, 356 N.Y.S.2d 845; People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632; People v. Farruggia, supra).

Decisional law generally distinguishes between invoking the privilege on matters that are collateral to the direct examination, which does not require the striking of direct testimony (see, e.g., People v. Allen, 50 N.Y.2d 898, 430 N.Y.S.2d 588, 408 N.E.2d 917, affg. 67 A.D.2d 558, 416 N.Y.S.2d 49; People v. Codrington, 109 A.D.2d 891, 487 N.Y.S.2d 83; People v. Jones, 99 A.D.2d 471, 472, 470 N.Y.S.2d 178, overruled on another issue in People v. Magazine, 106 A.D.2d 473, 482 N.Y.S.2d 569; Dunbar v. Harris, 612 F.2d 690 [2nd Cir.] ), and invoking the privilege on matters directly related to the direct examination, which entitles the defendant to have the direct testimony stricken (see, e.g., People v. Schneider, 36 N.Y.2d 708, 366 N.Y.S.2d 419, 325 N.E.2d 877, supra; People v. Acomb, supra; People v. Farruggia, 77 A.D.2d 447, 433 N.Y.S.2d 950, supra; United States v. Newman, 490 F.2d 139 [3rd Cir.] ). 2 The distinction between matters which are "collateral" and those which are "direct" is not precise or easy to draw (United States v. Seifert, 648 F.2d 557, 561 [9th Cir.] ), and these terms are simply guidelines. In each case, "the ultimate question must be whether the defendant's inability to test the accuracy of the witness' direct examination has been such as to create a substantial risk of prejudice" (McCormick, Evidence § 140, at 347 [3d ed.]; see generally, Ann., 55 ALR Fed. 742).

If the cross-examiner seeks to explore more than mere general credibility, as, for example, to establish bias or interest, the...

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