People v. Gonzalez

• Decision Date: 07 July 1981
• Citation: 426 N.E.2d 474,54 N.Y.2d 729,442 N.Y.S.2d 980
• Parties: , 426 N.E.2d 474 The PEOPLE of the State of New York, Respondent, v. Sergio GONZALEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 980

442 N.Y.S.2d 980

54 N.Y.2d 729, 426 N.E.2d 474

The PEOPLE of the State of New York, Respondent, v. Sergio GONZALEZ, Appellant.

Court of Appeals of New York.

July 7, 1981.

Stanley M. Meyer, Brooklyn, and Frank A. Lopez, New York City, for appellant

Mario Merola, Dist. Atty. (Peter D. Coddington and Steven R. Kartagener, Asst. Dist. Attys. of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed. 75 A.D.2d 725, 427 N.Y.S.2d 894.

Defendant's argument that the trial court erred in refusing to admit the Grand Jury testimony of a witness who was unavailable at the time of the trial must be rejected. The testimony was excludable as hearsay evidence, and not admissible within the statutory exceptions to that rule (see CPL 670.10; People v. Harding, 37 N.Y.2d 130, 371 N.Y.S.2d 493, 332 N.E.2d 354). Defendant's additional argument that he had a due process right to introduce this testimony (see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297) was not preserved for our review by timely objection.

With respect to the defendant's contention as to the circumstantial evidence charge, it is noted that although the charge as given did not include the words "exclude to a moral certainty" as requested by the defendant it did nevertheless, in substance, adequately inform the jury as to the burden of proof in a circumstantial evidence case (see People v. Morris, 36 N.Y.2d 877, 372 N.Y.S.2d 210, 334 N.E.2d 10).

FUCHSBERG, Judge (concurring).

While I am otherwise in agreement with the result and reasoning of the court in this case, I write separately because of my differing view on the defendant's request that the court charge the jury that, since the evidence was wholly circumstantial, the facts from which the inferences were to be drawn had to "exclude to a moral certainty every other reasonable hypothesis" (emphasis supplied). Unlike the court's brief memorandum, from which one might gather that the failure to charge the moral certainty formulation is a harmless omission of a desirable charge, it is one that should no longer be so employed at all. The Trial Judge, therefore, was eminently correct, not merely because the charge he did give was one which "adequately informthe jury as to the burden of proof", but because he denied defendant's request that he add one built around "moral certainty".

In reaching this conclusion, I am in agreement with the District Attorney, who, in essence, maintains that the standard of proof required in circumstantial, as in noncircumstantial, criminal cases, is that of proof beyond a reasonable doubt and that, in this context, the phrase "moral certainty" is not only a "confusing form of words" (People v. Kennedy, 47 N.Y.2d 196, 201-203, 417 N.Y.S.2d 452, 391 N.E.2d 288; see, also, People v. Borrero, 26 N.Y.2d 430, 434-435, 311 N.Y.S.2d 475, 259 N.E.2d 902; People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334; People v. Wachowicz, 22 N.Y.2d 369, 372-373, 292 N.Y.S.2d 867, 239 N.E.2d 620), but unnecessary to a charge on this subject.

In so saying, I am, of course, conscious of the fact that this court has long and repeatedly, and most often unanimously and, therefore, with my concurrence as well, approved the appending of the phrase "moral certainty" to the conventional "beyond a reasonable doubt" charge. In the main, our rationale has been that the added words, with seeming salutariness, would serve to impress the jury with what we perceived to be a special need "to perform a complex analytical function" when purely circumstantial evidence of guilt is weighed (People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071; see, also, People v. Gerard, 50 N.Y.2d 392, 397, 429 N.Y.S.2d 406, 406 N.E.2d 1343; People v. Piazza, 48 N.Y.2d 151, 158, 422 N.Y.S.2d 9, 397 N.E.2d 700; People v. Montanez, 41 N.Y.2d 53, 57, 390 N.Y.S.2d 861, 359 N.E.2d 371; People v. Benzinger, supra, 36 N.Y.2d p. 33, 364 N.Y.S.2d 855, 324 N.E.2d 334; People v. Morris, 36 N.Y.2d 877, 372 N.Y.S.2d 210, 334 N.E.2d 10). But our opinions did not focus on the risk that it would mislead the jurors or, worse, dilute the constitutionally required standard of proof. Moreover, I am bolstered in my resolve to say my piece by the host of commentators, jurists and lexicographers who, directly or indirectly, bear witness to the flaws inherent in the added charge.

I begin with the undebatable proposition that the burden of proof which the People must carry to the point of conviction is to establish all the essential elements of a crime beyond a reasonable doubt--no more and no less (Matter of iWinship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368). Thus, while clarification or emphasis of the "beyond a reasonable doubt" rule--though it is one with whose connotations few laymen are unfamiliar--is permissible and perhaps useful, from the defendant's perspective, it may not be put in a form which reduces the standard and, from society's vantage point, it ought not raise it, as, for instance, to one of absolute certainty. As the unanimous Supreme Court put it: "Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonal evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more" ( Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150). Holland has been consistently followed in the Federal courts (see 1 Devitt and Blackmar, Federal Jury Practice and Instructions § 15.02, p. 443).

The trouble with using "moral certainty" for this purpose is self-apparent. A lay jury will understand what "certainty" means, but "beyond a reasonable doubt" does not embrace any concept as definite as that. "Moral" conveys multifaceted ideas, among which ethical, aspirational or behavioral ones preponderate. None of these, however, is synonymous with the rational picture conjured up by the word "reasonable" (e. g., Oxford Universal Dictonary Webster's New World Dictionary Webster's New World Dictionary Webster's New World Dictionary, Encyclopedic ed. Standard Dictionary of the English Language, Funk &...