People v. McCurdy
| Citation | 86 A.D.2d 493,450 N.Y.S.2d 507 |
| Parties | The PEOPLE, etc., Respondent, v. Mark McCURDY, Appellant. |
| Decision Date | 24 May 1982 |
| Court | New York Supreme Court Appellate Division |
Rappaport & Frost, New York City (Freda S. Nisnewitz, New York City, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Jane S. Meyers, Brooklyn, of counsel), for respondent.
Before TITONE, J. P., and MANGANO, BRACKEN and BOYERS, JJ.
Defendant, a police officer, was accused of shooting Alexander Bradford in the hallway outside the former's apartment. The two had been friends since childhood. In 1972 they formed a music business together in Kings County. Although the business was successful at its inception, problems developed as it began to run into debt. In June, 1976, defendant accused Alexander Bradford, and members of Mr. Bradford's family who had worked in the store, of mismanagement. This created difficulties in the relationship between the partners, and in mid-1976 the business closed. Defendant and Bradford had no further contact until several days before the shooting.
Bradford testified that at 6:30 A.M. on Sunday, March 13, 1977, the day of the shooting, he went jogging. He decided to drop by and see defendant in order to try to patch things up. Upon arriving at the brownstone in which defendant lived, Bradford entered the vestibule and rang defendant's bell. The vestibule door was locked. After a few minutes, Bradford, looking through the glass pane in the door, saw defendant outside his apartment on the second floor. They looked at each other, and then defendant returned to his apartment.
Bradford then engaged in some conversation with a woman on the street. Defendant came out of the building, whereupon Bradford asked if they could speak with each other. The two entered the building and a conversation ensued on the stairs leading to the second floor.
The conversation lasted about 10 minutes, during which time the defendant moved up the stairway about 15 feet from Bradford and said "I am going to do it, and I'm going to do it now." Defendant moved his hand to his rear hip pocket, but removed nothing. He then placed his hand into his jacket and withdrew a revolver. Bradford turned to leave. He opened the vestibule door, his back to defendant. Suddenly he felt his head "explode * * * like a firecracker" and his face hit the floor.
Defendant testified that he was on his way to work when the incident occurred. He did not hear the doorbell, nor did he see Bradford until he got to the bottom of the stairs while he was on his way out. He claimed that it was, in fact, impossible for a person standing in the vestibule area to see an individual standing on the second floor landing, and vice versa.
When defendant reached the vestibule door, Bradford pushed it open and came into the building. Bradford demanded money. Defendant then saw a revolver in Bradford's hand; a struggle ensued, and shots were fired. During the struggle, defendant was able to get his own revolver out and fire it. Bradford went down. Defendant picked up Bradford's gun and went upstairs to call the police. When the police came, he turned the gun over.
At trial, the credibility of the witnesses was a paramount issue. The People's theory was that the gun that defendant turned over to the police was in fact his; defendant maintained that he had never seen that weapon before. Both sides presented additional evidence, which need not be recited here, in support of their respective claims.
After the defense rested, the court allowed the jury, over defendant's objection, to visit the crime scene. The prosecutor requested the visit in order to enable the jury to determine whether anyone standing on the second floor landing could be seen through the closed vestibule door, and vice versa. Defense counsel strenuously objected on the ground that structural changes had taken place in the hallway area. In particular, the vestibule door had been replaced by a steel door which had a smaller window in it; the walls had been painted a lighter and different color; the intensity of the illumination in the area had been changed; and a radiator had been removed. The court, in granting the motion, was apparently swayed by the prosecutor's argument that the window in the new vestibule door was completely contained within the area and dimensions of the glass in the prior door.
We are of the opinion that the court abused its discretion in allowing the jury to view the premises. Such a viewing by a jury in a criminal trial is governed by CPL 270.50, subdivision 1 of which provides:
"When the court is of the opinion that a viewing or observation by the jury of the premises or place where an offense on trial was allegedly committed, or of any other premises or place involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the commencement of the summations, order that the jury be conducted to such premises or place for such purpose in accordance with the provisions of this section."
The alleged purpose for the visit in question was to determine if a person standing in the vestibule could see an individual standing on the second floor landing. Assuming, without deciding, that this was a "material factual issue", the fact remains that the hallway and vestibule door were not in substantially the same condition as they were on the date of the incident. Photographs will not be admitted into evidence if the scene they depict has substantially changed between the time of the incident and the time the photographs are taken (Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423). The same principle applies, with perhaps even greater force, to a jury visit in a criminal trial (People v. Thorn, 156 N.Y. 286, 298-299, 50 N.E. 947; People v. White, 67 A.D.2d 571, 416 N.Y.S.2d 260, revd. on other grounds 53 N.Y.2d 721). While it is within the trial court's discretion to permit such an event, it is imperative that the potential of prejudice be avoided by the trial court's insuring that the scene has not significantly changed in any relevant respect.
The conclusion that a crime scene has undergone a substantial change may be reached either upon a quantitative or a qualitative analysis. Thus, the scene may have undergone a number of small changes which collectively prove significant, or, on the other hand, while there may have been relatively few changes, they may have been "of such significance, under the relevant circumstances, as to impel the reasoned conclusion that they constitute a significant...
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