People v. Fitzpatrick

• Decision Date: 10 June 1976
• Parties: , 351 N.E.2d 675 The PEOPLE of the State of New York, Respondent, v. Frank FITZPATRICK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 28

386 N.Y.S.2d 28

40 N.Y.2d 44, 351 N.E.2d 675

The PEOPLE of the State of New York, Respondent, v. Frank FITZPATRICK, Appellant.

Court of Appeals of New York.

June 10, 1976.

Peter Fleming, Jr., John E. Sprizzo and Caren S. Brutten, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Peter L. Zimroth and Richard M. Seltzer, New York City, of counsel), for respondent.

FUCHSBERG, Judge.

The main question before us on this appeal is whether the prosecution in a criminal case may impeach its own witness by the use of his prior Grand Jury testimony when the witness, at trial, merely denies any recollection of the events in question.

Defendant Frank Fitzpatrick was charged with the commission of perjury before a Grand Jury. An official of the steamfitters union, he was accused of accepting kickbacks from employers in the guise of salary checks made payable to non-employees designated by him. Before the Grand Jury, Fitzpatrick had specifically denied ever having had in his possession or cashing any checks made out to one Hugh Mulligan by Afgo Corporation. The prosecution presented proof that, although Fitzpatrick had secured employment for Mulligan as a night watchman with Afgo, police surveillance indicated that not once had Mulligan appeared at Afgo during the 16 months he supposedly held the job.

Among the facts the prosecution sought to prove at trial were that, on the night of February 7, 1969, in Costello's Bar on Third Avenue in Manhattan, Fitzpatrick had taken out of his pocket a check issued by Afgo, payable to Mulligan and indorsed by Mulligan, and had asked the bartender, one Frank Hanley, to cash it for him, that Hanley had done so, and that Fitzpatrick had pocketed the cash. There was no dispute that Fitzpatrick was in Costello's that night or that he had stood at the bar between Mulligan and an undercover police officer named Killeen or that a check made out to Mulligan and indorsed by him had been cashed there at that time. The question was whether this was done for Fitzpatrick himself or whether he had merely used his credit with the bartender to obtain a favor for Mulligan, who was not personally known at Costello's. Killeen testified that Fitzpatrick had both taken the check out of his own pocket and retained the proceeds. Fitzpatrick testified that it was Mulligan who had put the check on the bar and picked up the cash.

Before Fitzpatrick's indictment, Hanley had been called before the Grand Jury, where he was questioned by three Assistant District Attorneys. On being asked if he had cashed a check for Fitzpatrick on the night in question, he replied, 'I probably did'. Asked 'And you said to Fitzpatrick 'I will give you the money'? ' he replied, 'Yes'. The check in question had been made out in the amount of $199.35. The prosecutor asked Hanley, 'He gave you sixty-five cents and you gave him an even two hundred dollars?' Hanley replied, 'I don't recall that, you know that better than I do'. At a later point in the hearing, in response to the question 'On this occasion you gave Fitzpatrick the cash, am I correct?', Hanley answered 'Yes'.

Subsequent to his Grand Jury hearing and long before the trial, however, Hanley told one of the Assistant District Attorneys that he really could not recall the transaction in question, explaining that, at about the time of the check-cashing, he had been drinking heavily and had, in fact, lost his job for that reason shortly after the incident. He also informed the Assistant District Attorney that he had responded to the leading questions before the Grand Jury as he had because he thought that was what the District Attorney wanted him to do, because he assumed that there was independent proof that things had happened the way they were presented to him in the questions, and because he had been unable to cope with three interrogators at once. He went on to state that, in truth, he could not recall who had handed him the check or who picked up the money, and would not testify otherwise when the case went to court.

Despite this warning, the District Attorney put Hanley on the stand at the trial. When Hanley insisted that he could not recall the details of the check-cashing inciden the District Attorney asked for and received permission to treat Hanley as an adverse witness and to impeach him by introducing his Grand Jury testimony as a prior contradictory statement. The substance of that testimony was read to the jury in open court; Hanley continued to state that he could not recall the facts. At one point, besides testifying that he actually could not now recall the facts of the check-cashing incident itself, he mistakenly asserted that he had so testified before the Grand Jury as well.

The jury having found Fitzpatrick guilty and the conviction having been affirmed by the Appellate Division, with two Judges dissenting, he now appeals to us, relying chiefly on the contentions that the testimony of Officer Killeen, who was the only witness against him, was not properly corroborated and that Hanley's Grand Jury testimony should not have been admitted for impeachment purposes under CPL 60.35. For the reasons which follow, we hold that it was error to receive the Grand Jury testimony and that the conviction must be reversed.

New York is one of the few States in which the right to impeach one's own witnesses in a criminal or civil trial by prior written or sworn statements is fully determined by statute rather than by case law (see CPL 60.35; CPLR 4514; Note, Prior Statements of One's Own Witness to Counteract Surprise Testimony: Hearsay and Impeachment Under the 'Damage' Test, 62 Yale L.J. 650, 651--652, n. 4). Applicable to criminal trials, the terms of CPL 60.35 are quite explicit:

' § 60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.

'1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case Which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath Contradictory to such testimony.

'2. Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received Only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. Upon receiving such evidence at a jury trial, the court must so instruct the jury.

'3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, But his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.' (Emphasis added.)

This statute, enacted in 1970 (L.1970, ch. 996), substantially changed prior law. Section 8--a of the Code of Criminal Procedure, CPL 60.35's predecessor, authorized the use of a prior inconsistent statement for impeachment purposes whenever such statement was either signed or sworn. It is especially noteworthy that, in sharp contrast to the present statute, the code contained no provision that the statement must 'tend to disprove the position' of the party seeking to use it. Nor did the code contain language comparable to that by which the use of such material to refresh the memory of a witness is now limited by CPL 60.35 (subd. 3).

It is helpful to an understanding of the significance of the statutory change to note briefly how the principles of the law of impeachment have developed. The idea of prohibition of impeachment of one's own witnesses descends to us from the ancient time when a party's witnesses were brought into court not to swear to facts in a case but rather to a party's own credibility. Not surprisingly, it then was considered ill befitting for a party to question the veracity of his own witnesses. However, with the passage of time, as our legal system developed into an adversarial one more concerned with the discovery of factual truth by means of impartial witnesses, the force behind the prohibition was weakened, particularly in instances where a balky witness could frustrate an entire case. To overcome such recalcitrance, circumventions of the strict rule came to be employed, one of the earliest being a resort to the rationale that a witness' memory was being refreshed. Limited permission to impeach soon followed more openly (Note, Impeaching One's Own Witness, 49 Va.L.Rev. 996, 996--999; cf. Bullard v. Pearsall, 53 N.Y. 230; People v. Freeman, 9 N.Y.2d 600, 603--604, 217 N.Y.S.2d 5, 6--7, 176 N.E.2d 39, 40--41).

In the train of these developments, it soon became apparent that there were concomitant dangers in the use of out-of-court statements for impeachment of witnesses' credibility. Despite judicial instructions advising juries that such material was to go only to credibility, it was difficult to avoid having juries, when actually confronted with dramatically cogent impeaching evidence, treat it as though it were in fact direct evidence of guilt or innocence in criminal trials. At the very least, a real danger of confusion was omnipresent (see People v. Freeman, supra; People v. Ferraro, 293 N.Y. 51, 55 N.E.2d 861).

There was, moreover, increased concern that the prosecution might misuse impeachment techniques to get before a jury material which could not otherwise be put in evidence because of its extrajudicial nature. ¹ So, in People v. Welch, 16 A.D.2d 554, 556--557, 229 N.Y.S.2d 909, 912, a conviction was reversed because 'The prosecutor under the guise of impeaching the...