People v. Daly

• Decision Date: 27 December 1983
• Citation: 98 A.D.2d 803,470 N.Y.S.2d 165
• Parties: The PEOPLE, etc., Respondent, v. Martin DALY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 165

470 N.Y.S.2d 165

98 A.D.2d 803

The PEOPLE, etc., Respondent, v. Martin DALY, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 27, 1983.

William E. Hellerstein, New York City (Darren O'Connor, New Rochelle, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Alan D. Rubinstein and Dorothy S. Morrill, Brooklyn, of counsel), for respondent.

Before LAZER, J.P., and MANGANO, GULOTTA and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 25, 1980, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Judgment affirmed.

The convictions of the defendant and his codefendant Bryant, arose out of a gunpoint robbery by two men of a clothing store on Fulton Street in Brooklyn on July 26, 1979. The proprietor of the store, who was tied up during the robbery, worked himself free after the robbers fled, and chased the robbers, who had fled in a taxi cab. Police Officer Gandolfo joined in the chase, and the robbers thereafter exited the cab after it became stuck in traffic.

Gandolfo, who was joined by two other officers, followed the robbers but lost sight of them as they turned the corner of Fulton Street into Arlington Place. Pursuant to a conversation with a pedestrian, the officers entered the basement of a building located at 2 Arlington Place, apprehended Bryant therein, and discovered proceeds of the robbery both on the ground next to Bryant and a few feet away. Bryant was brought out of the building and was identified by the store owner. Pursuant to a conversation with another pedestrian, the officers then went to a building at 9 Macon Street and proceeded to the third floor. The door to the third floor apartment was slightly ajar. After knocking and entering, the officers saw the defendant barechested and perspiring. The defendant was brought down to the street and was also identified by the store owner. The defendant was positively identified at the trial as one of the robbers by the owner of the store as well as the tailor who was also a victim of the robbery. The People also established that a Mr. and Mrs. Gibbs lived in the third floor apartment in the building located at 9 Macon Street.

Defendant did not take the stand. However, a defense of misidentification was injected into the case by the testimony of the codefendant Bryant. Bryant testified that he and another person, other than defendant, went to the clothing store and were subsequently chased by the police. Bryant also told the jury that the defendant lived with Mr. and Mrs. Gibbs in the third floor apartment at 9 Macon Street where defendant was apprehended. Neither of the Gibbs were present or testified at trial.

After Bryant concluded his testimony, defendant's counsel announced his intention to call his investigator to the stand. Counsel advised the court that the investigator would testify concerning his six month-investigation in which he tried unsuccessfully to locate the Gibbses. The prosecutor argued that the offered testimony would be irrelevant. Defense counsel countered by stating:

"I believe that the jury would be asking themselves why hadn't Mr. and Mrs. Gibbs come in to testify that in fact they gave permission for Mr. Daly to stay in the apartment, and the reason for that is that Mr. and Mrs. Gibbs are not available and I would like to bring that information to the jury."

The court denied defense counsel's application to call his investigator as a witness and an exception to this ruling was duly made.

On this appeal, defendant argues that the trial court deprived him of due process of law when it refused to allow the investigator to take the stand and explain the Gibbs' absence. According to defendant, his inability to explain the Gibbs' absence permitted the jury to infer that the Gibbses would not have corroborated Bryant's testimony that defendant lived with them in the third floor apartment at 9 Macon Street.

We disagree with defendant's argument.

It is beyond question that (1) "[t]he right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause" (Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853, 23 L.Ed.2d 404), and (2) the testimony of a defense witness should not be excluded prospectively unless offered in bad faith (People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of HOPKINS, J.; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9). Viewed within this perspective, it was error to preclude the defendant's investigator from testifying. Nevertheless, even an error of constitutional dimension may be considered harmless if there is "no reasonable possibility" that the error contributed to the conviction (People v. Almestica, 42 N.Y.2d 222, 226, 397 N.Y.S.2d 709, 366 N.E.2d 799). In our view, the error committed by the trial court in precluding the investigator from testifying falls into the category of harmless error. On the principal question before the jury, i.e., whether the defendant was guilty of the robbery, the testimony of the police and robbery victims was extremely damaging to defendant. The testimony of the defense investigator, however, was clearly collateral to the principal question to be resolved by the jury i.e., whether defendant committed the robbery. Defendant did not interpose an "alibi" defense, never claimed that he was with the Gibbses in their apartment during the robbery, and his flight to an apartment, in which he allegedly lived, was not inconsistent with guilt on the robbery charges. Accordingly, we find that no prejudicial error was committed by the trial court in this regard.

We have examined defendant's remaining arguments and find them to be without merit.

LAZER, Justice Presiding, dissents and votes to reverse the judgment of conviction and order a new trial, with the following memorandum:

The principal issue is whether the harmless error doctrine has any application when a trial court prevents a defendant in a criminal trial from calling a particular witness to testify. While my colleagues of the majority agree that the instant trial court erred in preventing one of defendant's witnesses from taking the stand, they conclude the error was harmless. Although I disagree with the conclusion as to harmlessness, I believe that harmless error analysis had no application to this case because the Sixth and Fourteenth Amendment rights of a criminal defendant to present witnesses are basic to a fair trial and denial of those rights cannot be treated as harmless error.

Following the robbery of a store and a chase in which the pursuing officers lost sight of the robbers when they rounded a corner, the defendant was apprehended in a third floor apartment a 9 Macon Street, a building that was described by a prosecution witness as abandoned and occupied by a few squatters. When--based on information from a passerby--the officers entered the apartment, they found the defendant there allegedly bare chested and perspiring. Although defendant never testified, his defense was misidentification, and it was based in part on the testimony of codefendant Benjamin Bryant who stated that he and another person, not the defendant, had been in the store in question and subsequently were chased by the police. Bryant declared that defendant resided with Mr. and Mrs. Gibbs at the apartment where defendant was apprehended. An officer who had interviewed the Gibbses two days after the arrest also testified that he had been told that they lived in the apartment. No stolen property was found at or near defendant when he was arrested and the gun used in the robbery was never discovered. The Gibbs couple was not present at the trial.

On his appeal, defendant argues that he was deprived of due process when the trial court refused to permit his investigator to take the witness stand to explain the Gibbses' absence. Counsel informed the trial court that if the investigator were permitted to testify he would tell the court that he had searched for the Gibbs couple for six months and had been unable to find them. Absent that explanation, argued counsel, his failure to produce the Gibbses at the trial would permit the jury to draw the inference that they were not called because their testimony would not support Bryant's statement that defendant resided with them at the apartment in which he was arrested and would thus injure the defense that defendant was quietly ensconsed in his own home when the police burst in.

In this State, the constitutional right to call witnesses has been supplemented by CPL 60.15 (subd. 1) which declares that a defendant "may as a matter of right call and examine witnesses". It follows, of course, that a trial court may not prospectively prohibit a defense witness from testifying unless the testimony of the witness is offered in palpable bad faith (People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on the dissenting opn of HOPKINS, J.) and almost all of the cases involving violation of this rule have resulted in reversals (see, e.g., People v. Dalton, 38 N.Y.2d 222, 379 N.Y.S.2d 691, 342 N.E.2d 493; People v. Gilliam, supra; People v. Forbes, 87 A.D.2d 829, 449 N.Y.S.2d 9; People v. Rojas, 83 A.D.2d 594, 441 N.Y.S.2d 117; People v. Murray, 79 A.D.2d 993, 434 N.Y.S.2d 720; People v. Boone, 78 A.D.2d 461, 435 N.Y.S.2d 268; People v. McClinton, 75 A.D.2d 900, 428 N.Y.S.2d 61; People v. Cuevas, 67 A.D.2d 219, 414 N.Y.S.2d 520; People v. Hepburn, 52 A.D.2d 958, 383 N.Y.S.2d 626; but seePeople v. Eaton, 31 A.D.2d 730, 297 N.Y.S.2d 23, decided prior to People v. Gilliam ). Absent bad faith, a defendant is entitled to call a...