People v. Cuevas

• Decision Date: 20 March 1979
• Citation: 414 N.Y.S.2d 520,67 A.D.2d 219
• Parties: The PEOPLE of the State of New York, Respondent, v. Angel CUEVAS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 520

414 N.Y.S.2d 520

67 A.D.2d 219

The PEOPLE of the State of New York, Respondent, v. Angel CUEVAS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 20, 1979.

Todd Stern, New York City, of counsel (William E. Hellerstein, New York City, atty.), for defendant-appellant.

Bruce Allen, New York City, of counsel (Jerrold L. Neugarten, New York City, with him on the brief, Robert M. Morgenthau, Dist. Atty., New York City, atty.), for respondent.

Before BIRNS, J. P., and EVANS, FEIN, SULLIVAN and SILVERMAN, JJ.

SULLIVAN, Justice.

On January 4, 1977, at approximately 10:30 p. m. Conrado Nunez, 51 years old, was returning to his home at 515 West 174th Street when he was confronted outside his fourth floor apartment by a man standing four or five feet away, pointing a black handgun at him. As the two stood face-to-face, the gunman said "Give me money." When Nunez, who had $80. on him, raised his hands and replied that he had none, the gunman fired a shot, hitting him in the face, ¹ and then fled down the stairs. Nunez recognized the gun-wielder as the defendant Cuevas, whom he had known in the neighborhood for over ten years.

When Mrs. Nunez, who had been waiting for her husband, heard shots outside her apartment, she opened the door and saw him standing by the stairway. Two men were running down the stairs. One was on the third floor, the other on the second. Mrs. Nunez described the man closer to her as tall and skinny with light brown hair in a medium Afro, and wearing a long dark coat with "something white" in the collar. At trial Nunez was also to describe the man with the gun as tall with a "like blond" Afro, and wearing a long, dark coat with a white collar. Mrs. Nunez testified that the other man was tall, slim, with short black hair and wearing "something dark."

The police were summoned and Nunez, accompanied by his wife, was taken to the hospital. Later, Detective Joseph spoke with Nunez, with his wife acting as interpreter. Detective Joseph then went to defendant's home at 500 West 174 th Street. Finding that defendant was not at home, Detective Joseph had a conversation with his parents, explaining that Nunez had identified him as his assailant. Detective Joseph advised the parents that defendant should come to the precinct house to speak to him. It was then approximately midnight.

At about 4 a. m., on January 5, 1977, defendant arrived at the station house. He was taken to the hospital to be viewed by Nunez. After staring at defendant for eight to ten seconds, Nunez identified him as his assailant.

Defendant testified in his own behalf. He was an unemployed 19 year old, who had lived at 500 West 174th Street for the past nine or ten years. On the evening of January 4, 1977 between 9:30 and 10:00 p. m., he went to a neighborhood pool hall located on St. Nicholas Avenue, between 173rd and 174th Streets where he played pool from 10:30 to 11:00 p. m. with a friend Hugo. ² Defendant was certain that he stopped playing at 11:00 p. m. since he was watching the time because Hugo, who had to get up for work the next morning, had said earlier that he would play only until 11 o'clock. At 11 o'clock, Hugo left for home and defendant went across the street to a restaurant.

When defendant testified that he saw a man in the restaurant, whom he knew as Carlos, the prosecutor objected that since only Hugo was listed in defendant's notice of alibi, ³ reference to any other alibi witness should be prohibited. Defendant argued that any person in his company after he left the pool hall at 11 p. m. was not an alibi witness within the intendment of CPL § 250.20, since he was not with that person "at the time of the commission of the crime."

It should be noted that the People had served a handwritten notice on defendant which listed the time of the shooting as 10:45 p. m. The police UF-61 report showed the time of the shooting as 10:55 p. m., and those of the People's witnesses who did testify as to the time of the incident, i. e., Nunez, his wife, and Detective Joseph, all stated that the shooting had occurred before 11 o'clock.

The People's objection was sustained on the ground that the testimony of any witness alleged to have been in defendant's company after 11 p. m. was, in effect, an extension of his alibi, and that the name of such witness should have been listed in the notice of alibi. Accordingly, Trial Term excluded the testimony of Carlos and a "friend" whom, defendant later testified, he visited at the friend's apartment from about 11:15 p. m. until 3:30 or 4:00 a. m. In further support of its ruling, Trial Term held that if these two witnesses were not alibi witnesses, as it had concluded, their testimony would still have to be excluded, inasmuch, as defendant's whereabouts after 11 p. m. were irrelevant. Yet, Trial Term later permitted defendant to testify to his activities between 11 p. m. and 4 a. m. The court, however, directed that defendant was to make no reference by name to the two persons in whose company he claimed to have been after leaving the pool hall.

Defendant thereafter resumed his narrative without mentioning the name of anyone he had met following 11 p. m. After he left the pool hall, he had coffee with "somebody" in the restaurant for ten or fifteen minutes and then went to a "friend's" house where he stayed for three or four hours until he returned home to his parents' apartment sometime between 3:30 or 4:00 a. m. Defendant testified that although he had not worn his long dark coat with the white fur collar earlier that night, he was wearing it when he went to the station house and, of course, when Nunez identified him at the hospital.

After a one-day deliberation, the jury convicted defendant of attempted murder in the second degree and assault in the second degree. In our view, there were two errors of sufficient import as to have deprived defendant of a fair trial. Thus, a new trial is warranted.

It was error to exclude the testimony of the two witnesses whom defendant had hoped to call in support of his testimony concerning his activities after 11 p. m. This testimony was relevant since defendant had accounted for his whereabouts at the time of the shooting by testifying to his activities at the pool hall until 11 p. m. At least as to this time element, for whatever it was worth, his testimony was corroborated by the evidence of Hugo, the alibi witness. It would have been quite natural for the jury to wonder about defendant's activities from 11 p. m., shortly after the shooting, until 4 a. m., when he returned home. He had a right to account for his actions during that time span, and to show that his conduct and demeanor were inconsistent with the behavior which might be expected of a person who had just committed a heinous crime. If nothing else, these witnesses could have testified to the color and type of the outer garment defendant was wearing and perhaps supported his claim that he was not wearing the long black coat with the white fur collar earlier that evening. Defendant was denied this opportunity by the exclusion of these witnesses.

Moreover, their testimony was important to dispel any inference of consciousness of guilt which might have flowed from defendant's unavailability until 4 a. m. ⁴ The relevancy of such testimony on this issue was all the more significant since the People had been permitted to show that defendant was not home at midnight when Detective Joseph went looking for him at his apartment.

As a result of Trial Term's ruling, defendant was left to testify to his activities after 11 p. m. without the support of his witnesses. This factor took on critical significance when the court charged, properly so, that defendant was an interested witness, as a matter of law. Furthermore, in the course of his testimony, defendant was not allowed even to mention the names of those he was with after 11 p. m., except for a single reference to Carlos. Thus, he had coffee with "somebody" and later went to the house of "somebody" who was "a friend of mine." Whatever one's view as to whether Carlos and the "friend" were alibi witnesses, it was error to bar even a mention of their names since the sanction for non-compliance with the notice of alibi demand does not include a prohibition against a defendant testifying as to where and with whom he was at a certain relevant time. (See, CPL § 250.20(3).)

Finally, the knowledge that he could not call either Carlos or his friend, or indeed even mention their names, would tend to have a chilling effect on defendant's testimony as to the events after 11 p. m. By testifying at length about these events, defendant would have run the risk of a jury wondering why there were no witnesses to confirm this aspect of his narrative. The testimony of a defendant's witness should never be prospectively excluded as irrelevant unless his offer of proof is in palpably bad faith. (People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, rev'g 45 A.D.2d 744, 356 N.E.2d 663 (on the dissenting op. of Hopkins, J.); People v. Hepburn, 52 A.D.2d 958, 383 N.Y.S.2d 626.)

Nor should the testimony of these two witnesses have been excluded for failure to list their names in the notice of alibi. Section 250.20(1) of the Criminal Procedure Law, which prescribes the procedure by which the People may ascertain whether a defendant intends to offer an alibi defense and elicit the particulars thereof, sets forth the critical time frame covered by the defense of alibi. It requires that where a defendant plans to assert that "At the time of the commission of the crime charged he was at some place or places other than the scene of the crime" (emphasis added) he must, pursuant to demand, furnish the names and addresses of the witnesses he intends to call to establish such a defense. The sanction for failure to serve a notice of alibi or to specify an alibi witness therein is exclusion of the witness's...