People v. Crimmins

Citation326 N.E.2d 787,367 N.Y.S.2d 213,36 N.Y.2d 230
Parties, 326 N.E.2d 787 The PEOPLE of the State of New York, Appellant, v. Alice CRIMMINS, Respondent.
Decision Date25 February 1975
CourtNew York Court of Appeals

Nicholas Ferraro, Dist. Atty. (Thomas A. Duffy, Jr., and Barry Alan Schwartz, Kew Gardens, of counsel), for appellant.

William M. Erlbaum, Herbert A. Lyon and Charles Wender, Kew Gardens, for respondent.


On this appeal we are called on principally to consider the doctrine of harmless error as applied to errors which occurred on defendant's second trial. In this case a mother was charged with criminal responsibility in connection with the deaths of her son and her daughter. On her first trial defendant was charged only with the death of the daughter and was convicted of manslaughter. On appeal this convicti was reversed and a new trial was ordered. (People v. Crimmins, 33 A.D.2d 793, 307 N.Y.S.2d 81, affd. 26 N.Y.2d 319, 310 N.Y.S.2d 300, 258 N.E.2d 708.) On her second trial the jury convicted defendant of murder of her son and manslaughter of her daughter. The Appellate Division then reversed the conviction of murder of the son and dismissed the charge against defendant with respect to his death. (People v. Crimmins, 41 A.D.2d 933, 343 N.Y.S.2d 203.) As to the manslaughter conviction, the Appellate Division also reversed defendant's conviction but ordered a new trial with respect to her responsibility for the death of her daughter. The case is now before us on appeal by the People.

The procedural aspects of this appeal and of our dispositions of its several branches call for exposition. The ultimate issues turn on the procedural significance and consequences properly to be attached to errors of law which occurred during the second trial. We conclude that these errors fall into separate categories calling for different legal results.

I. As to defendant's conviction of murder of her infant son:

The Appellate Division's reversal of this conviction (as distinguished from that court's attendant dismissal of this count in the indictment) was explicitly recited to be 'on the law and the facts'. An appeal may be taken to our court only where the reversal is expressly stated to be on the law alone; accordingly an appeal from this reversal may not be taken to our court (CPL 450.90, subd. 2, par. (a)).

By contrast, the corrective action directed by the Appellate Division in consequence of its reversal of the murder conviction, i.e., the dismissal of the murder count, is subject to an appeal to and review by our court (CPL 450.90, subd. 2, par. (b)). We find that corrective action to have been what was required by the Criminal Procedure Law. The reversal of the conviction was based on the conclusion of the Appellate Division that, as a matter of law, the People did not prove that the son's death resulted from a criminal act and, in the alternative, that any finding that it did would be contrary to the weight of the evidence (41 A.D.2d 933, 343 N.Y.S.2d 203). CPL 470.20 (subd. 2) mandates dismissal of the accusatory instrument in the event of reversal of a judgment after trial for legal insufficiency of trial evidence; subdivision 5 of the same section mandates the same corrective action where the reversal is on the ground that the verdict is against the weight of the trial evidence. Accordingly the Appellate Division's dismissal of the murder count with respect to the death of the son must be affirmed.

II. As to defendant's conviction of manslaughter in the homicide of her infant daughter:

The Appellate Division determined that because of errors committed on the second trial this conviction should be reversed. Because such determination was expressly stated to be on the law alone, that aspect of the present appeal, as well as the associated corrective action directed by the Appellate Division, is properly before us (CPL 450.90, subd. 2, pars. (a), (b)). For reasons discussed below, a majority of our court is of the view that this determination of the Appellate Division should itself be reversed. In that circumstance, since the order of the Appellate Division reversing the manslaughter conviction was based on the law alone, the provisions of CPL 470.40 (subd. 2, par. (b)) dictate that the manslaughter conviction be remitted to the Appellate Division for determination of the facts. Presumably consideration will then be revived, too, as to defendant's separate and distinct appeal from the order of Supreme Court denying her motion for a new trial on the grounds of newly-discovered evidence and of improper conduct by the prosecutor in withholding from defendant information potentially helpful to her defense. In view of the other determinations made at the Appella Division in the order from which appeal is now being taken it was not then necessary formally to reach or dispose of defendant's contentions with respect to denial of her motion for a new trial. Defendant now becomes entitled to consideration and disposition of such contentions by that court.

We turn then to a discussion of our reasons for concluding that the reversal of the manslaughter conviction should be overturned.

A. As to the constitutional error:

The People concede that the comment of the prosecutor in summation with respect to defendant's failure to testify on her own behalf was improper and constituted constitutional error under the provisions of both the Federal and our State Constitutions (U.S.Const., 5th Amdt.,; N.Y.Const., art. I, § 6). All of the members of the court agree that such error calls for reversal and a new trial unless it was harmless under the test for harmless constitutional error laid down by the Supreme Court of the United States, namely, that there is no reasonable possibility that the error might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171).

We of the majority are satisfied that this test is met here in view of the circumstances in which the constitutional error occurred--Inter alia, the unsworn outbursts by defendant herself which both preceded and followed the prosecutor's error, the comments of defense counsel and the reactions in the courtroom at the time, and the explicitly clear instructions of the trial court--coupled with what, as indicated below, we think was the overwhelming proof of defendant's guilt.

Although in our view this case presents no appropriate instance for its application, our discussion of the effect to be given constitutional error should not overlook a parallel, and in some instances an overlapping doctrine, also of constitutional proportion, namely, the right to a fair trial. Not only the individual defendant but the public at large is entitled to assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial. The appellate courts have an overriding responsibility, never to be eschewed or lightly to be laid aside, to give that assurance. So, if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction. The right to a fair trial is self-standing and proof of guilt, however, overwhelming, can never be permitted to negate this right. There is no predicate here, however, for any claim that this defendant on her second trial was deprived of any such basic right.

B. As to the nonconstitutional errors:

For the purposes of our disposition of this appeal we assume, although each of the Judges in the majority would not necessarily so decide, that the Appellate Division was correct in concluding that in the circumstances of this trial: (1) it was error to permit introduction of testimony with respect to the witness Rorech's having been given a sodium pentothal (truth serum) test (although nothing was said as to any results thereof); (2) it was error to permit the prosecutor to elicit testimony in cross-examination of defendant's witness Colabella that the latter had refused to sign a waiver of immunity when questioned by the prosecutor during the pretrial investigation of the case; and (3) it was error, after the prosecutor had put before the jury an apparently damaging admission by Colabella to one Sullivan but had thereafter failed to call Sullivan or to explain the failure to do so, for the trial court to deny defendant's request for a charge that the jury could draw an unfavorable inference from the People's failure to call Sullivan as a witness. None of these errors, however, was of constitutional dimension.

We turn then to the question whether any one of such errors, or all taken in combination, calls for a reversal of the jury verdict here.

The definition and elaboration of the doctrine of harmless error as applied to nonconstitutional error involve peculiarly questions of the law of the State of New York to be determined by our State courts. The doctrine has received expression in our court over the last 20 years in various forms, accompanied usually explicitly, always at least implicitly, by a recognition that '(e)rrors are almost inevitable in any trial, improprieties almost unavoidable, (and that) the presence of one or the other furnishes no automatic signal for reversal and retrial' (People v. Kingston, 8 N.Y.2d 384, 387, 208 N.Y.S.2d 956, 959, 171 N.E.2d 306, 308).

Examination of the language chosen to describe the doctrine and its application in individual cases, as well as analysis of the authorities selected for citation, discloses that we have not always been either...

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