People v. Maschi

• Decision Date: 21 December 1978
• Citation: 65 A.D.2d 405,411 N.Y.S.2d 298
• Parties: The PEOPLE of the State of New York, Respondent, v. Dominick MASCHI, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 298

411 N.Y.S.2d 298

65 A.D.2d 405

The PEOPLE of the State of New York, Respondent, v. Dominick MASCHI, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1978.

E. Thomas Boyle, St. James, of counsel, for defendant-appellant.

Meredith Anne Feinman, New York City, of counsel (Jerrold L. Neugarten, New York City, with her on brief, Robert M. Morgenthau, Dist. Atty.), for respondent.

Before MURPHY, P. J., and SILVERMAN, FEIN, MARKEWICH and SANDLER, JJ.

FEIN, Justice.

Dominick Maschi appeals from a judgment convicting him, upon a jury trial, of burglary in the third degree and sentencing him as a predicate felon to a term of 2 to 4 years. Defendant was apprehended at about 5:00 A.M. on May 18, 1976 after entering an antique shop at 440 East 75th Street. According to the arresting officer, defendant was seen hunched over inside the shop and was ordered by the officers to come out. Maschi related to the officers that he observed that the door window of the shop had been broken and the door was open and he entered to look inside out of curiosity. He denied having been ordered to leave the shop by the officers. He claimed he was apprehended as he was leaving voluntarily.

Defendant testified that he had been drinking at an after hours club with his friend Peter Pappadakos and immediately prior to the arrest he and Pappadakos were walking to the latter's home. When they approached the antique shop, they observed that the window in the front door was broken and the door was slightly open. He entered to see what was happening. He remained in the shop for less than 2 minutes and was arrested as he was leaving the store. Pappadakos testified essentially to the same effect, confirming defendant's account that the window of the door was broken and the door was partly open. Pappadakos, however, did not follow defendant into the shop, but rather continued to walk. After walking a short distance, he started to return to the shop to persuade defendant to leave. By that time the police had arrived. Pappadakos testified that he watched from a distance as the police officers handcuffed defendant and placed him under arrest. During cross-examination, the prosecutor at some length inquired of Pappadakos as to why he, knowing his friend Maschi had been arrested, never told the police or the district attorney that the shop door window was broken and the door open when Maschi entered.

On appeal, defendant assigns as error this extended cross-examination by the prosecutor as unfairly implying that Pappadakos had a duty to come forward with the exculpatory account related at trial. Defendant further contends that the error was compounded by the heavy emphasis in the prosecutor's summation on Pappadakos' failure to report what he knew either to the police or the district attorney.

The cross-examination and summation by the prosecutor in this respect impinged upon defendant's right to a fair trial. The testimony of Pappadakos confirmed Maschi's explanation of the circumstances of his entry into the store. Although such explanation might have been consistent with criminal trespass it tended to negate the charge of burglary. The cross-examination and summation by the prosecutor as to why the witness failed to report the incident and his observations to the police or to the district attorney did more than merely suggest to the jury that the testimony of the witness was fabricated. The clear purpose of the inquiry was to indicate that there was a duty on the part of Pappadakos to inform either the police or the district attorney of facts consistent with defendant's innocence. In this respect, the cross-examination was unfair and improper. (People v. Milano, 59 A.D.2d 852, 399 N.Y.S.2d 226; People v. Smoot, 59 A.D.2d 898, 399 N.Y.S.2d 133; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679).

Although we have held that the failure of an alibi witness to disclose the alibi until trial is a factor which may be brought before the jury on the issue of credibility (People v. Brown, 62 A.D.2d 715, 720, 405 N.Y.S.2d 691, 695), here the prosecutor sought to imply a duty on the part of an eyewitness to the event to report exculpatory information to the police. No authority appears obligating an eyewitness to disclose exculpatory information. We do not deal here with the duty to report evidence of crime. Moreover the prosecutor did much more than merely suggest to the jury that the delay in disclosure by the eyewitness was to be considered only in assessing the credibility of the witness. The prosecutor posited a duty of disclosure which had been breached.

Thus this case is more nearly akin to this Court's holding in People v. Milano, supra, than to People v. Brown, supra, relied upon by the prosecution. As stated in Milano, 59 A.D.2d at p. 853, 399 N.Y.S.2d at p. 227:

"In our opinion the defendant was denied a fair trial by the prosecutor's improper cross-examination of an alibi witness and, in particular, by his persistent improper efforts to discredit such witness, the clear purport of which was to implant in the jurors' minds the proposition that the witness was unworthy of belief because he had failed to promptly divulge the subject matter of his alibi testimony to the appropriate law enforcement authorities. The defendant's father, who had been a police officer, testified as an alibi witness for his son. The prosecutor, on cross-examination of this witness, inquired into his reactions to prior arrests of his son and then, over objections which were sustained by the court, he attempted to suggest that, had the witness revealed his son's alibi at the time of the arrest, the charges against defendant would have been dropped."

That this is precisely the vice here is plain from the cross-examination of Pappadakos.

"Q. May I ask you a question: when was the first time you ever told anyone that the store window had been broken?

A. When I saw it.

Q. Who did you tell?

A. Mikey.

Q. And after that incident, did you find out that Mr. Maschi had been arrested?

A. Yes.

Q. Did you find out that he had gone to the Police Station?

A. Yes.

Q. Who told you that?

A. Mikey. He didn't tell me. I know police procedure. You're arrested, you go to the station.

Q. You found out he went to court?

A. Yes.

Q. Did you go to court that morning?

A. No.

Q. Did you ever go talk to Police Officer Sullivan?

A. I don't like police.

Q. Did you ever talk to Police Officer Brevner about this case?

A. I never heard the names.

Q. How about any officers in the 19th Precinct? Did you ever walk to the 19th Precinct and tell the police what you saw?

A. No.

Q. Did you ever go to the DA's office and come and see me and tell me what you had seen?

A. I didn't want to come today.

Q. You didn't want to come today?

A. No.

Q. You know him for eight years, right?

A. Yes.

Q. And you weren't interested enough?

A. I don't need aggravation. I got my own problems. I didn't want to come today.

Q. When did you find out that you were going to be a witness today, sir?

A. About ten days ago, two weeks ago. He came by the store, him and his attorney.

Q. Who came by the store?

A. Mikey and Mr. Alfano.

Q. And they asked if you would be a witness?

A. And he said if you don't we'll subpoena you.

Q. Did they ever subpoena you?

A. No.

Q. So you came here of your own volition?

A. Yes.

Q. During the last ten months, while this case was pending, you never told anyone concerned with law enforcement, anyone in the DA's Office, you had information that would clear Mr. Maschi of this charge of burglary?

MR. ALFANO: Objection, your Honor.

THE COURT: Overruled.

A. I never told anybody. I didn't even know what he was going to be charged with."

Moreover in Brown, supra, as this court noted, there was no objection by defense counsel, unlike Milano, supra, and our case where objections to the crucial questions were overruled. As noted, Brown, supra, dealt with alibi witnesses, whereas our case involves an eyewitness. We need not here attempt to reconcile the apparent conflict in the cases with respect to the right to cross-examine alibi witnesses as to the reasons for their belated disclosure. (Compare People v. Brown, supra ; People v. Milano, supra, both First Department cases, and People v. Smoot, supra ; People v. Hamlin, supra, both Second Department cases). The dissent in Hamlin, noted with approval in Brown (62 A.D.2d at p. 722, 405 N.Y.S.2d at p. 696), suggests that the notice of alibi statute (CPL § 250.20, subd. 1) implies that an alibi witness has a duty to make prompt disclosure upon becoming aware of an impending prosecution. There is no such basis for finding or creating a duty of an eyewitness to disclose exculpatory information. Nonetheless, the cross-examination and summation by the prosecutor were plainly premised upon the existence of such a duty and its breach by Pappadakos. This is demonstrated by the summation:

"Pete, honorable Pete. Upstanding member of the community. A man who hates cops. Why does he hate cops. Because they arrested his friend Maschi. His friend Maschi sleeps in his house on occasion. They drink together. They buy drinks for one another. One for all and all for one except when you (sic) friend is in trouble you run. You stand on a street conner (sic) and you watch. Make sure nobody sees you so you don't like cops, understandable. You don't go to the precinct, you don't go to the Grand Jury and testify, speak to the DA, officers and say listen, the guy I just saw him. He didn't go in. He didn't break anything. Never comes up. The first time he shows up is yesterday out of the blue. You take his testimony for what it is worth."

The prosecutor was telling the jury that Maschi was guilty because Pappadakos failed promptly to tell the police that he and Maschi, who had been drinking together in an after hours club for some hours, had walked past the store at 4:30 A.M. and observed the broken window and slightly opened door and that Maschi...