People v. Lyons

• Decision Date: 06 February 1992
• Citation: 579 N.Y.S.2d 664,180 A.D.2d 440
• Parties: The PEOPLE of the State of New York, Respondent, v. John LYONS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 664

579 N.Y.S.2d 664

180 A.D.2d 440

The PEOPLE of the State of New York, Respondent, v. John LYONS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 6, 1992.

Before SULLIVAN, J.P., and WALLACH, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Bonnie Wittner, J.), rendered April 16, 1990, convicting defendant, after a jury trial, of attempted murder in the second degree in violation of P.L. 110/125.25(1) and criminal possession of a weapon in the third degree in violation of P.L. 265.02(4) and sentencing him to an indeterminate term of 8 1/3 to 25 years on the attempted murder conviction and a concurrent indeterminate term of 2 1/3 to 7 years on the criminal possession of a weapon conviction, is unanimously affirmed.

The defendant's guilt of the charges was established beyond a reasonable doubt. Three witnesses, one of them the complainant, testified that on January 2, 1989, following an argument in which the complainant was not involved, the defendant went into a building, returned with a gun and shot the complainant in the leg and back, paralyzing him from the chest down. Two of the witnesses, Rosik Ferrara and the complainant had known the defendant, as well as the person whom the defense claimed did the shooting, Kevin Moore, prior to the incident. All three witnesses testified that defendant had gold coverings on his teeth on the date in question and that they saw no one else with gold coverings on that day.

The evidence was that one of the People's witnesses, Rodney Poole, had argued with the defendant about a car which the defendant had allegedly damaged. The car had apparently been lent to the defendant by another person named Lizetta who was upset that the car was damaged. The complainant arrived on the scene and was shot as he attempted to find out what the argument was about.

The defense was that the shooting was done not by the defendant but by a person named Kevin Moore, who was also present. Both the defendant and a former girl friend of Kevin Moore testified that defendant Lyons gave the gun to Moore who did the shooting. Both testified that Moore had gold coverings on his teeth on that date.

We reject the defendant's arguments on appeal that the trial court committed reversible error when it refused to allow Kevin Moore to invoke his Fifth Amendment privilege before the jury, refused to permit Moore to be questioned about his gold teeth before the jury after Moore had declared his intention to take the Fifth Amendment and refused to permit Moore to be exhibited before the jury. A trial court has discretion as to whether to allow a defendant to call a witness for the purpose of having that witness invoke his privilege against self-incrimination before a jury. People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 415 N.E.2d 931 (1980); People v. Sapia, 41 N.Y.2d 160, 163-64, 391 N.Y.S.2d 93, 359 N.E.2d 688 (1976), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977); ( See also, People v. Berg, 59 N.Y.2d 294, 298, 464 N.Y.S.2d 703, 451 N.E.2d 450 (1983). Here, out of the presence of the jury, the prospective witness, Kevin Moore, testified that he would invoke his Fifth Amendment privilege before the jury. The reiteration of this right before the jury had no probative worth and may have unfairly prejudiced the jury. People v. Thomas, 51 N.Y.2d at 472, 434 N.Y.S.2d 941, 415 N.E.2d 931. In People v. Thomas, the...