People v. Medina

• Decision Date: 04 May 1987
• Citation: 130 A.D.2d 515,515 N.Y.S.2d 94
• Parties: The PEOPLE, etc., Respondent v. Dino MEDINA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 94

515 N.Y.S.2d 94

130 A.D.2d 515

The PEOPLE, etc., Respondent v. Dino MEDINA, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 4, 1987.

Stephen J. Pittari, White Plains (Peter Paul Insero, Jr., of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Karine Moreno-Taxman and Richard E. Weill, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered June 27, 1985, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), criminal use of a firearm in the first degree (two counts), grand larceny in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence at trial tying the defendant to the service station robbery for which he was charged was the identification testimony of the three complaining witnesses. All three identified the defendant in court as one of the robbers and insisted that he had a goatee or small beard at the time of the robbery. Another witness for the People, the arresting officer, testified that when the defendant was taken into custody some three months after the crime, he had facial hair over his lip and down along the side of his chin; the officer conceded, however, that this growth of hair was possibly only the result of several days of not shaving. Two other police witnesses (one of whom was called by the defense) testified, however, that no mention of facial hair was contained in the description of the robber in question taken from the complainants shortly after the crime. The facial hair issue was further focused upon by the defense during the testimony of the defendant's alibi witnesses, who stated that the defendant was not only elsewhere on the night of the crime, but also had no facial hair at the time. The prosecutor then elicited from these witnesses, on cross-examination, testimony that the defendant had never worn a goatee, including specifically the period between the date of the crime and the defendant's arrest. Following this testimony, the People were permitted, over objection, to offer the rebuttal testimony of a police officer that he had seen the defendant some six weeks after the crime and that the defendant at that time had a full mustache and chin whiskers. On appeal, the defendant contends that this rebuttal testimony was improperly allowed as it did not contradict an affirmative fact sought to be proved by the defense and was collateral to the question of what the defendant looked like on the day of the crime (see, People v. Harris, 57 N.Y.2d 335, 345, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803; People v. Gonzalez, 100 A.D.2d 852, 474 N.Y.S.2d 97).

It is well established that the party who is cross-examining a witness cannot call other witnesses to contradict a witness's answers concerning collateral matters solely for the purpose of impeaching that witness's credibility (People v. Pavao, 59 N.Y.2d 282, 288-289, 464 N.Y.S.2d 458, 451 N.E.2d 216). It is also settled, however, that the question of whether a matter is collateral or not must be determined under the particular...