People v. Crimmins

• Decision Date: 22 December 1975
• Citation: 38 N.Y.2d 407,343 N.E.2d 719,381 N.Y.S.2d 1
• Parties: , 343 N.E.2d 719 The PEOPLE of the State of New York, Respondent, v. Alice CRIMMINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

381 N.Y.S.2d 1

38 N.Y.2d 407, 343 N.E.2d 719

The PEOPLE of the State of New York, Respondent, v Alice CRIMMINS, Appellant.

Court of Appeals of New York.

Dec. 22, 1975.

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

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

BREITEL, Chief Judge.

Defendant has twice been convicted, after jury trials, of manslaughter in the first degree for killing her daughter. She was sentenced from 5 to 20 years' imprisonment.

On this appeal, defendant contends that she was wrongfully denied a hearing by the Supreme Court on her motion to vacate judgment. The Appellate Division affirmed.

The critical issue is whether the denial, without a hearing, of defendant's motion to vacate judgment upon the ground of newly discovered evidence may be reviewed by this court. The dissenter's challenge that there has been a denial of justice makes imperative consideration and elaboration of the issue and the questions of law and fact which resolve them conclusively.

There should be an affirmance. The power to review a discretionary order denying a motion to vacate judgment upon the ground of newly discovered evidence ceases at the Appellate Division. This court, limited in a noncapital criminal action to reviewing questions of law only, has no power to review the discretionary denial of a motion to vacate judgment upon the ground of newly discovered evidence. Not to be confused is this court's power to set aside a conviction on the ground that it is not supported by proof sufficient to establish guilt beyond a reasonable doubt as a matter of law (see People v. Santos, 38 N.Y.2d 173, 379 N.Y.S.2d 41, 341 N.E.2d 554, and cases cited).

Even if the denial of such a motion were reviewable, the same result would obtain. The 'newly discovered evidence' consisted only of an affidavit of a 'witness' submitted some seven years after the events described in it had occurred. The affidavit was complete on its face, that is, it presented fully, and in the best possible light, all the evidence the 'witness' could possibly offer on defendant's behalf. Assuming affiant's sincerity, his averments were in part conclusory and were highly unreliable as to accuracy of recollection. The averments did not disclose a probability, as opposed to a mere possibility, that the jury would have rejected the overwhelming evidence of defendant's guilt and returned a verdict more favorable to defendant. Thus, the court below properly denied the motion without a hearing.

In 1968, defendant was convicted, after jury trial, of manslaughter in the first degree for killing her daughter. That conviction was reversed on appeal and a new trial ordered (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).

Thereafter, in 1971, defendant was convicted, after jury trial, of murder in the first degree for killing her son, five years of age, and, for the second time, of manslaughter in the first degree for killing her daughter, four years of age. The Appellate Division reversed the murder conviction, on the law and the facts, and dismissed the applicable murder count in the indictment. That court also reversed the manslaughter conviction, on the law only, and ordered a new trial (343 N.Y.S.2d 203, 41 A.D.2d 933). This court affirmed with respect to the dismissal of the murder charge, but reversed the order granting a new trial and remitted the appeal to the Appellate Division for a determination of the facts (36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787, Cooke and Fuchsberg, JJ., dissenting in an opn. by Cooke, J.).

The Appellate Division, on remittal, affirmed the judgment of conviction. It also affirmed an order denying defendant's double-branched motion to vacate judgment upon (1) the ground of newly discovered evidence and (2) asserted improper conduct by the prosecution in withholding from her information allegedly helpful to her defense (48 A.D.2d 663, 367 N.Y.S.2d 532). Leave to appeal to this court was granted by a Justice of the Appellate Division. On the present appeal, defendant has limited her argument to whether she was entitled to a hearing in connection with her motion to vacate judgment.

The evidence upon the second trial compels the conclusion that defendant killed her daughter. At the second trial, Joseph Rorech, one of defendant's paramours, testified that she had confessed to him that she had killed her daughter. Rorech also recounted other conversations with defendant during which she indicated her guilt.

On July 14, 1965, defendant's daughter's body had been found in a vacant lot near defendant's residence. An autopsy revealed that the little girl had been asphyxiated by human agency. From a scientific analysis of the contents of her stomach, it was established that the girl had died from less than one half hour to no more than two hours after eating. Defendant admitted to police officers investigating the disappearance of her children that, on the evening of July 13, she had fed them a meal which began at 7:30 p.m. and ended at 8:15 p.m. Thus, it would appear that the daughter was killed between approximately 8:30 and 9:00 or 9:30 p.m. Defendant's own statements establish that she, separated from her husband, had exclusive custody of the children during those hours.

As Judge Jones recounted, on behalf of a majority of the court, in People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 222, 326 N.E.2d 787, 794, Supra, 'In addition to other compelling circumstantial evidence, there was eyewitness testimony * * * that on the night before the daughter's body was found, defendant, carrying what was described as a 'bundle' and accompanied by an unidentified man, was seen leading her son from the Crimmins home; that as the man threw the 'bundle' into a parked car defendant cried out, 'Please don't do this to her', to which the man responded, 'Does she know the difference now? * * * Now you're sorry.' This eyewitness was Mrs. Sophie Earomirski, one of defendant's neighbors. ¹

Moreover, still other evidence pointed to defendant's guilt. For example, defendant's trial theory was that her children had been abducted from the house by outside kidnappers. Since the children presumably were asleep in their locked bedroom at the time of the 'abduction', if the defense theory were valid, the kidnappers must have entered the Crimmins residence and removed the children through the bedroom window. Yet, police investigation the following day established that layers of dust on a chest of drawers in the bedroom abutting the window and on the window sill were undisturbed. As the court stated 'the prosecution conclusively exploded defendant's theory of an outside kidnapper' (36 N.Y.2d, at p. 243, 367 N.Y.S.2d at p. 223, 326 N.E.2d at p. 794).

Thus, the majority concluded (36 N.Y.2d, at pp. 242, 243, 367 N.Y.S.2d at p. 222, 326 N.E.2d at p. 794, Supra): 'there was overwhelming proof that this defendant was guilty of manslaughter in the death of her daughter * * * We read this record as leading only to a single, inexorable conclusion, as two juries have indeed found: defendant was criminally responsible for the death of her daughter.' ²

Indeed, the proof of defendant's guilt was so overwhelming that the case has withstood an attack based upon trial errors committed by the prosecution. Those erro were held to be harmless: in the case of constitutional error, beyond a reasonable doubt; and in the case of nonconstitutional error, because 'there is no significant probability in the light of the overwhelming proof that, had it not been for the errors which occurred, this jury would have acquitted the defendant or that a third jury might do so' (36 N.Y.2d, at p. 243, 367 N.Y.S.2d at p. 223, 326 N.E.2d at p. 794). Of course, the dissenters on that appeal did not and still do not agree with that evaluation (see dissenting opn. by Cooke, J., at pp. 243--250, 367 N.Y.S.2d at p. 223, 326 N.E.2d at p. 794).

This statement of the harmless error rule with respect to nonconstitutional errors did not constitute a new rule. As the court stated, the 'doctrine (of harmless error) has received expression in our court over the last 20 years' (36 N.Y.2d, at p. 239, 367 N.Y.S.2d at p. 218, 326 N.E.2d at p. 792). The rule restated on the second Crimmins appeal was an accommodation to what had developed in the area of harmless error over the years, from the time of the Code of Criminal Procedure to the CPL, and has survived the latter day imposition by the Supreme Court of a harmless 'beyond a reasonable doubt' rule for Federally-declared constitutional error. Nonconstitutional error, as has been the statutory rule since 1881 and the decisional law in this State for over one hundred years, is harmless when, given the overwhelming proof of a defendant's guilt, there is no significant probability that the jury would have acquitted the defendant if the error had not been committed (see, e.g., Code Crim.Pro., § 542 (L.1881, ch. 504, § 542); CPL 470.05, subd. 1; Shorter v. People, 2 N.Y. (Comstock) 193, 202; People v. Corey, 148 N.Y. 476, 493--494, 42 N.E. 1066, 1075; People v. Marendi, 213 N.Y. 600, 619, 107 N.E. 1058, 1065; People v. Crimmins, 36 N.Y.2d 230, 239--240, 367 N.Y.S.2d 213, 220, 326 N.E.2d 787, 792, and cases cited at p. 242, 367 N.Y.S.2d at p. 222, 326 N.E.2d at p. 794; see, also, Stokes v. People, 53 N.Y. 164, 180).

It has been useful in the context of this case to examine the harmless error rule applicable to nonconstitutional error, for it is similar to the statutory standard for determining when a motion to vacate judgment upon the ground of newly discovered evidence should be granted (see CPL 440.10, subd. 1, par. (g)).

The 'newly discovered evidence' upon which defendant's motion to vacate judgment is in part based is an affidavit by one who came forward with his story some...