People v. Kirsh

• Decision Date: 24 October 1991
• Citation: 575 N.Y.S.2d 306,176 A.D.2d 652
• Parties: The PEOPLE of the State of New York, Respondent, v. Mara KIRSH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 306

575 N.Y.S.2d 306

176 A.D.2d 652

The PEOPLE of the State of New York, Respondent, v. Mara KIRSH, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 24, 1991.

Before CARRO, J.P., and MILONAS, ELLERIN, WALLACH and ROSS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Renee White, J.), rendered February 26, 1990, convicting defendant after a jury trial of two counts of perjury in the first degree, for which she was sentenced to five years probation, unanimously affirmed.

Defendant's perjury arose out of her testimony at a suppression hearing related to her husband's criminal trial for weapons possession. A witness at that trial testified to an overheard conversation in which the husband discussed with his wife blowing up the apartment building which he owned. This witness overheard a later conversation, in which the husband threatened to shoot the wife. Both conversations were heard through a hole in the floor, and tape recorded. At the suppression hearing preceding the husband's trial, during which the legality and mechanical validity of the tape recording of the conversations were examined, defendant voluntarily testified on her husband's behalf. During cross-examination, she testified that her husband had never threatened to blow up the building, and that there were absolutely no weapons of any kind in their apartment. In fact, when defendant was arrested, a virtual arsenal had been recovered from the apartment. Defendant herself was not prosecuted, and by the time of the suppression hearing, the statute of limitations had already lapsed.

Defendant's testimony at her husband's suppression hearing was both material to the underlying charges (see People v. Stanard, 42 N.Y.2d 74, 80, 396 N.Y.S.2d 825, 365 N.E.2d 857, cert. denied, 434 U.S. 986, 98 S.Ct. 615, 54 L.Ed.2d 481) and relevant to defendant's own credibility (see People v. Davis, 53 N.Y.2d 164, 440 N.Y.S.2d 864, 423 N.E.2d 341). Defendant's testimony at that hearing, under oath, constituted perjury. Defendant's contention on the appeal that the People had "set her up" in a "perjury trap" is without merit. We find no indication that the prosecutor engaged in any subterfuge to elicit defendant's false answers.

The conversations in question were freely overheard, the declarant was "present" during the conversations, and consequently, defendant has no Fourth Amendment claims to advance (see, e.g., United States v. Agapito, 620 F.2d 324). Since the witness at her husband's suppression hearing was not a law enforcement official, there was no police surveillance to challenge. Further, absent a reasonable expectation of privacy, the recording of conversations, per se, is not illegal (see People v. Gibson, 23 N.Y.2d 618, 298 N.Y.S.2d 496, 246 N.E.2d 349, cert. den. 402 U.S. 951, 91 S.Ct. 1628, 29 L.Ed.2d 121). Since the witness freely heard the subject conversation, he was not guilty of illegal electronic surveillance (see Penal Law § 250.05; § 250.00 subd. 2) and CPLR § 4506 subd. 1 would not apply. Finally, defendant voluntarily testified at her husband's suppression hearing, exposing herself to impeachment.

Defendant's appellate challenge to the trial court's denial of her application to call an expert who would have offered opinion with respect to perjury traps, and the materiality of testimony with respect to perjury, is without merit. Any instructions with respect to materiality of evidence, or as to a legal defense, lay within the responsibility of the court (see People v. Johnson, 76 A.D.2d 983, 984, 429 N.Y.S.2d 281).

We find nothing in the record to...