People v. Kennedy
| Decision Date | 04 September 1979 |
| Citation | 420 N.Y.S.2d 23,70 A.D.2d 181 |
| Parties | The PEOPLE, etc., Respondent, v. James F. KENNEDY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John J. Meglio, New York City, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Reina Barcan, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.
Before HOPKINS, J. P., and LAZER, COHALAN and MARTUSCELLO, JJ.
After a jury trial, the defendant was convicted of two counts of murder in the second degree and sentenced to concurrent indeterminate terms of imprisonment of from 15 years to life on each count. On this appeal, he argues that his guilt was not proven beyond a reasonable doubt and that the trial court committed reversible error when it restricted his attorney's attempt to adduce evidence pertaining to the voluntariness of defendant's confession. We conclude that the defendant was deprived of due process when his right to cross-examination on the issue of the voluntariness of his confession was limited by the court.
The defendant was indicted for felony murder and common-law murder as a result of the slaying of Richard Berkley, Sr. on August 19, 1975, allegedly during an attempted robbery by the defendant and an accomplice. At the conclusion of a Huntley hearing, the trial court ruled that defendant's inculpatory statement to law enforcement officials was not obtained in violation of his constitutional rights.
According to the testimony elicited by the People in the course of the Huntley hearing and at the murder trial, on September 1, 1975, at approximately 9:30 A.M., the defendant voluntarily went to the 69th Precinct stationhouse for questioning regarding the Berkley killing. After he was advised of his Miranda rights by Detective Walter Zimmy, the defendant agreed to answer questions without an attorney present and told Zimmy that early on the day of the murder he had gone to Berkley's real estate office with his friend, Bobby, to see if he could get an apartment and that when he left Berkley's office at about noon the latter was still alive. This exculpatory account was repeated by the defendant to an Assistant District Attorney, Robert Bridges, at which time it was stenographically recorded. After giving his statement to Bridges, the defendant consented to Zimmy's request that he submit to a polygraph examination at the Police Academy. En route to the Academy, Zimmy and the defendant stopped at a hamburger establishment for something to eat but, after arriving at the Academy at about 2:00 P.M., and just before submitting to the polygraph examination, the defendant asked to speak to Zimmy again, and after being read his Miranda rights once more, he confessed. In the confession, the defendant stated that on the day of the murder he had accompanied Bobby to Berkley's office, Bobby pointed the gun at Berkley and demanded that he give them the money from his safe, but when Berkley refused, Bobby shot him. After leaving Berkley's office, defendant and Bobby removed the four spent cartridges from Bobby's .38 calibre revolver, and the defendant threw them into a vacant lot.
It is apparent from this testimony that the defendant was in Zimmy's custody all day on September 1, 1975, although he was not formally arrested by the latter until about 7:30 P.M. after they returned to the stationhouse from the Academy. At approximately 9:30 P.M. the defendant repeated to Assistant District Attorney Bridges the same inculpatory confession he had made earlier to Zimmy. This second confession was stenographically recorded by Jack Rando, a legal stenographer employed by the Kings County District Attorney's office. The transcripts of the two statements made by defendant to Assistant District Attorney Bridges on September 1, 1975 were read to the jury at the trial.
The defendant's version of these events was adduced at the trial and it differs substantially from that offered by the People. He testified that on September 1, 1975, after receiving a telephone call from the police requesting that he come in for questioning, he had gone to the 69th Precinct. Although his first statement to Bridges was true, his second statement to him was involuntarily made and induced by threats made by Zimmy en route from the 69th Precinct to the Police Academy to take the polygraph examination. During the entire period during which he was in police custody on September 1, 1975, he was not offered food, drink or the opportunity to telephone anyone in his family and by 9:30 P.M., when he "confessed" to Bridges, he was very tired and frightened. The defendant did not deny making the confession, however, nor that he was given Miranda warnings. His claim was that the confession had been coerced from him by lack of rest and nourishment, a lengthy detention, and threats by the police, and thus he tendered to the jury the issue of the voluntariness of his confession.
It was during the cross-examination of the People's witness, Rando, by defendant's counsel, that the court intervened and limited the area of questioning. Rando testified on behalf of the People that it was he who recorded and later transcribed defendant's inculpatory statement. On cross-examination he stated that he could not identify the man whose statement he had recorded on September 1, 1975, and that while it could have been the defendant, he did not recognize him as the man whose statement he had recorded. He had no recollection of whether defendant was offered any food or drink while he was there, nor could he recall the physical condition of the man who was answering the questions. When counsel for defendant attempted to pursue Rando further concerning the circumstances surrounding the confession, what took place is reflected in the following extract from the trial transcript:
(Side bar discussion between court and counsel).
To continue reading
Request your trial
-
People v. Jin Cheng Lin
...is relevant to whether the defendant confessed to the murders with a “free and unconstrained” state of mind ( People v. Kennedy, 70 A.D.2d 181, 185, 420 N.Y.S.2d 23). [963 N.Y.S.2d 140] Contrary to the trial court's determination, the videotape does not constitute impermissible hearsay, bec......
-
People v. Hall, 108356
...8 N.E.3d 308 [2014], quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 [1961] ; see People v. Kennedy, 70 A.D.2d 181, 185, 420 N.Y.S.2d 23 [1979] ; compare People v. Jin Cheng Lin, 26 N.Y.3d at 728, 27 N.Y.S.3d 439, 47 N.E.3d 718 ). Moreover, "the physical and......
-
People v. Bethune
...party may prove through cross-examination any relevant proposition, irrespective of the scope of direct examination (People v. Kennedy, 70 A.D.2d 181, 186, 420 N.Y.S.2d 23). However, once the parties have proceeded to redirect and recross-examination, inquiry as of right is limited to new m......
-
People v. Blackwell
...party may prove through cross-examination any relevant proposition, regardless of the scope of the direct testimony (People v. Kennedy, 70 A.D.2d 181, 186, 420 N.Y.S.2d 23). It is this broader criminal standard, with specified modifications, that governs cross-examination at suppression hea......
-
Witness examination
...witness concerning her prior psychiatric history); People v. Rowe , 236 A.D.2d 637, 654 N.Y.S.2d 787 (2d Dept. 1997); People v. Kennedy , 70 A.D.2d 181, 420 N.Y.S.2d 23 (2d Dept. 1979). However, the court may exercise its discretion and impose reasonable limits on cross-examination as to co......
-
Witness examination
...witness concerning her prior psychiatric history); People v. Rowe , 236 A.D.2d 637, 654 N.Y.S.2d 787 (2d Dept. 1997); People v. Kennedy , 70 A.D.2d 181, 420 N.Y.S.2d 23 (2d WITNESS EXAMINATION 15-5 WITNESS EXAMINATION §15:20 Dept. 1979). However, the court may exercise its discretion and im......
-
Witness examination
...witness concerning her prior psychiatric history); People v. Rowe , 236 A.D.2d 637, 654 N.Y.S.2d 787 (2d Dept. 1997); People v. Kennedy , 70 A.D.2d 181, 420 N.Y.S.2d 23 (2d Dept. 1979). However, the court may exercise its discretion and impose reasonable limits on cross-examination as to co......
-
Witness examination
...witness concerning her prior psychiatric history); People v. Rowe , 236 A.D.2d 637, 654 N.Y.S.2d 787 (2d Dept. 1997); People v. Kennedy , 70 A.D.2d 181, 420 N.Y.S.2d 23 (2d Dept. 1979). However, the court may exercise its discretion and impose reasonable limits on cross-examination as to co......