People v. Galloway

Decision Date24 November 1981
Citation430 N.E.2d 885,54 N.Y.2d 396,446 N.Y.S.2d 9
Parties, 430 N.E.2d 885 The PEOPLE of the State of New York, Respondent, v. Vincent GALLOWAY, Appellant.
CourtNew York Court of Appeals Court of Appeals

Mario Merola, Dist. Atty. (Vida M. Alvy and Billie Manning, New York City, of counsel), for respondent.

Allen A. Hans, New York City, for appellant.

OPINION OF THE COURT

FUCHSBERG, Judge.

Painstaking consideration of the record as a whole compels us to agree with the Appellate Division, 77 A.D.2d 543, 430 N.Y.S.2d 93, that, while the trial tactics of both the prosecutor and the defense counsel are highly criticizable, the defendant was not deprived of a fair trial.

In so deciding, we realistically recognize that a trial, particularly one which turns, as did the present one, on issues of credibility, under our time-tried adversary system in no small measure depends for the testing of truth and, ultimately, for a just determination on the clash of competing contentions advanced under well-established rules by zealous and independent opposing counsel. Though, nevertheless, excesses and improprieties, on the side of either party or of both, by distorting the intended balance, often will negate the result, we cannot say this was the case here.

For one thing, not all the alleged misconduct of which each party complains was drastic. For instance, the repeated argumentation over rulings of the Trial Judge in the presence of the jury; mimicking remarks to witnesses; repetition of their answers; attempts to disrupt troubling cross-examination; injecting misstatements in questions and undignified ad hominem attacks by one counsel on the other, even if viewed cumulatively, would not necessarily render the trial "a mockery" (see People v. Johnson, 47 N.Y.2d 785, 417 N.Y.S.2d 925, 391 N.E.2d 1006, cert. den. 444 U.S. 857, 100 S.Ct. 116, 62 L.Ed.2d 75; cf. People v. Alicea, 37 N.Y.2d 601, 376 N.Y.S.2d 119, 338 N.E.2d 625; People v. Steinhardt, 9 N.Y.2d 267, 213 N.Y.S.2d 434, 173 N.E.2d 871).

In this connection, we observe that, while goading by defense counsel will not justify a prosecutor's departure from the obligations of the sensitive role he plays (People v. Garcia, 72 A.D.2d 356, 361, 424 N.Y.S.2d 697, affd. 52 N.Y.2d 716, 436 N.Y.S.2d 273, 417 N.E.2d 567; ABA Standards, Prosecution Function § 5.8, subd the acrimonious tone of this trial may have been sounded at its outset by defense counsel's gratuitous reference to the witness Cruz as a "vigilante punk". Yet, to this and other provocations, the prosecutor had no business assuming what the People's brief now candidly concedes was an "unprofessional and abrasive manner", for this not only disregarded what every competent trial lawyer understands, i.e., the function of restraint, but, above all, cast aside the obligations of his office.

However, fortunately, the Trial Judge was a saving grace. Not chary about raising his own restraining hand, he handled most of the episodes promptly and forcefully, aborting prejudice by cutting short the arguments, or, in instances where he thought it appropriate, confining it to chambers. Because of the judicial interpositions, crucially, the conduct of counsel did not keep either side from putting before the jury its full version of the events surrounding the crime and, signally, neither side claims that it did (People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 366 N.E.2d 279; cf. People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564).

Moreover, some of the bitterest of the catalogue of complaints relate to matters which were not improper per se. Each attorney, for example, sought to attack the credibility of witnesses by exploring the extent to which his opponent had gone to prepare them to testify, the implications of which defense counsel in particular angrily took to be a personal attack on his integrity. Similarly, the prosecutor's characterization, in summation, of the defense's contention that the witness Cruz possessed a gun as a "smokescreen" or "a red herring" and his aspersions on the credibility of the defendant's and the witness Taylor's testimony did not exceed the broad bounds of rhetorical comment permissible in closing argument. (Amsterdam, Segal & Miller, Trial Manual for the Defense of Criminal Cases pp. 1-298, 1-435.) True, the prosecutor's earlier use of the words "prime" and the like in the questions by which he tried to probe witnesses' preparation may have been improper. But it is noteworthy that the trial court severely admonished him and directed that the term not be used again. In any event, defendant, electing to rest on this curative course, did not move for a mistrial.

Perhaps the most serious aberration of which the appellant accuses the prosecutor is the latter's attempt to raise the "spectre of police perjury" by cross-examination designed to pit answers elicited from the defendant and the witness Taylor against those which had been given by the police during the People's case (see People v. Rodriguez, 62 A.D.2d 929, 403 N.Y.S.2d 275; People v. Bryant, 60 A.D.2d 810, 401 N.Y.S.2d 76). However, objections to this line of inquiry, made immediately, were sustained and, again, the matter went unpreserved by a motion for mistrial. Moreover, that neither side monopolized the words "truth" and "liar" is apparent from defense counsel's cross-examination of Cruz, when he not only commented, "I'm trying to have you finally tell the truth", but also put the unfounded question, "Did people call you a liar in the Army?" *

Furthermore, the adversarial system must have played its own ameliorative role. For, in a trial of any appreciative length, here lasting seven days, the overreaching, the obstreperousness and the boisterousness of counsel, particularly when it compelled the Judge to rebuke both counsel in open court, is sure to have been self-defeating. All the more was this so in a case which, in the end, was a simple one: a purse snatching, the capture of one of the perpetrators by a passerby, the identification of the perpetrator by the victim and the passerby, the lack of any contest that the crime had occurred, the defendant's contention that he was an innocent passerby, his admission that he had been carrying the bananas which were found at about the place and the time of the crime.

Indeed, it is only because it occurred in this frame of reference that the prosecutor's resort to a "safe streets" argument in the course of his closing argument falls short of requiring reversal. Remarks which seek to impress jurors with the importance of their function and the bearing of a just decision in a case at hand to the system of justice as a whole, when fairly and neutrally stated, are permissible, if indeed not salutary. But where they are used as a vehicle by which to make references which bear a potential for prejudice, as in this instance, they are to be condemned. Here, briefly pursued and lost in the verbal melee, though preserved for appeal, the prosecutor's comment, in the context of the entire summation and, even more, the entire trial, in our considered opinion was harmless error (cf. People v. Brosnan, 32 N.Y.2d 254, 262, 344 N.Y.S.2d 900, 298 N.E.2d 78; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

In sum, in the circumstances here, the Trial Judge and the Appellate Division were correct in perceiving that reversal was not the only course open to them. As the United States Court of Appeals for the Second Circuit had occasion to remark when confronted with a similar problem only this past month, "ordering a new trial remains among the measures that the Court may apply in a particular case, and we believe that its availability has some deterrent effect. But its invocation is properly shunned when the misconduct has not substantially prejudiced a defendant's trial. Reversal is an ill-suited remedy for prosecutorial misconduct; it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted" (United States v. Modica, 663 F.2d 1173, 1184, 1981).

Finally, as to the other contentions raised by appellant, we find these either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

MEYER, Judge (dissenting).

The United States Supreme Court has held "that the atmosphere essential to the preservation of a fair trial--the most fundamental of all freedoms402be maintained at all costs" (Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543). Because a reading of the transcript of defendant's trial shows that the Assistant District Attorney was determined to obtain a conviction at any cost, including the misstatement of prior testimony on no less than seven occasions while cross-examining defense witnesses or in summation, I cannot accept the majority's conclusion that defendant's trial was fair. I would, therefore, reverse and remit for a new trial.

I

Between 9:45 and 10:00 P.M. on January 4, 1976, Magda Calero was returning with her five-year-old son to the apartment in which they lived at 751 East 161st Street in New York City. As she crossed the street someone behind her pulled her shoulder bag hard enough to break its straps and cause her to fall on her back. When she fell she looked up and for "a couple of seconds", as she estimated, saw the face of the person who had done so. That person dropped the bag on the ground, one of the two other young men with him came back and picked it up, and all three then ran around the building. Ms. Calero ran after them, asking that they keep the money but return her bag and papers, but because her son was hysterical she stopped and returned to him.

As she did so, she heard someone call her from the side of the building who said to her in Spanish "Senora, lady, come over here. This is one of the men that did it." Next to some bushes on the side of the building toward the front she found Jose Cruz standing and d...

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