People v. Nieves

• Decision Date: 03 November 1986
• Citation: 507 N.Y.S.2d 747,124 A.D.2d 603
• Parties: The PEOPLE, etc., Respondent, v. Julio NIEVES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 747

507 N.Y.S.2d 747

124 A.D.2d 603

The PEOPLE, etc., Respondent, v. Julio NIEVES, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 3, 1986.

Philip L. Weinstein, New York City (Nancy Feldman, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie, and Andrew J. Frisch, of counsel), for respondent.

Before BROWN, J.P., and RUBIN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered February 23, 1984, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant's robbery conviction was based solely upon the uncorroborated eyewitness testimony of the complainant, who identified the defendant on the street a year and three months after the crime occurred. The complainant specifically testified at trial that he recognized the defendant as an individual whom he had often seen on a particular street corner as he returned home from work. The defendant, who had held the same job for nearly a decade, testified that he would have been at work at the time the complainant claimed to regularly have seen him on the street corner. Moreover, the defendant and two alibi witnesses testified that on the night of the crime, he was at a party located a substantial distance from the scene of the robbery.

Initially, we note that although the People's evidence was not overwhelming, the complainant's testimony, if believed, fully established the defendant's guilt. We must therefore reject the defendant's claim that the evidence adduced at trial was insufficient as a matter of law (see, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932).

Nevertheless, a reversal of the defendant's conviction is warranted based upon the court's instructions to the jury at the end of the case.

First, over the defendant's objection to the People's request, the trial court gave a missing witness charge as to the defendant's wife, who was allegedly with the defendant on the night of the crime and who was available to testify, but was not called as a witness. However, it is well established that a missing witness charge should not be given if the prospective testimony would be merely cumulative (see, People v. Wilson, 64 N.Y.2d 634, 635-636, 485 N.Y.S.2d 40, 474 N.E.2d 248; People v. Rodriguez, 38 N.Y.2d 95, 98, 375 N.Y.S.2d 665, 341 N.E.2d 231). Here, the testimony of the defendant and his two alibi witnesses was consistent with respect to the defendant's whereabouts at the time the crime was allegedly committed. Thus, it cannot be said that the testimony of the defendant's wife would have added anything material to his alibi defense. Accordingly, it was reversible error for the court to have given a missing witness charge with respect to the defendant's wife.

In addition, the court's supplemental charge to the deadlocked jury was improper. The instruction with respect to the jurors' duty to reconcile their differing views was apparently directed only at the jurors who were in favor of acquittal (see, People v. Diaz, 66 N.Y.2d 744, 497 N.Y.S.2d 359, 488 N.E.2d 105; People v. Robinson, 84 A.D.2d 732, 444 N.Y.S.2d 82). Further, the court repeatedly urged the jurors to attempt to reach a verdict, but only fleetingly alluded to the jurors' duty not to abandon their consciously-held beliefs (see, People v. Perfetto, 96 A.D.2d 517, 464 N.Y.S.2d 818; People v. Ali, 65 A.D.2d 513, 409 N.Y.S.2d 12, affd. 47 N.Y.2d 920, 419 N.Y.S.2d 487, 393 N.E.2d 481). A charge "which prod[s] jurors through prejudicial innuendos or coerce[s] them with untoward pressure to reach an agreement" may very well tilt the scales against a defendant at this crucial point in the jurors' deliberations (People v. Pagan, 45 N.Y.2d 725, 726-727, 408 N.Y.S.2d 473, 380 N.E.2d 299). Although no objection was taken to the supplemental charge, the doubts raised by the identification testimony in this case require a reversal of the conviction on this ground in the interest of justice (cf. People v. Karamanites, 104 A.D.2d 899, 901-902, 480 N.Y.S.2d 395).

BROWN, J.P., and LAWRENCE and KOOPER, JJ., concur.

RUBIN, J., dissents and votes to affirm the judgment appealed from, with the following memorandum:

The majority concedes that the complainant's testimony, which the jury credited, was legally sufficient to establish the defendant's guilt. I concur with that finding. However, the majority would reverse because the court gave a missing witness charge with respect to the defendant's wife, who was present in the courtroom at trial, for the reason such testimony was allegedly merely cumulative with reference to defendant's alibi defense. With the latter, I disagree.

The critical issue here is the identification of the defendant by the complainant as one of the persons who robbed him on January 31, 1982, at or about 9:30 P.M. The defendant, to counteract such testimony, asserted an alibi defense.

The defendant testified, insofar as pertinent to this defense, that he was 39 years old and lived with his wife and four children in the Bushwick section of Brooklyn. On the night of the crime, he, his wife and his four children spent the entire night at a party at the home of his friend, one Maria Lara, in East New York, which is located a good distance from the scene of the crime. Specifically, he stated that he had been at the party from approximately 6:45 P.M. until 5:00 or 6:00 A.M. the following day, and that he left only once, briefly, to purchase cigarettes. The defendant denied ever having known or seen complainant Colon prior to his arrest, and denied participating in the crime; he admitted knowing the other alleged participant in the crime, one "Tango", but described him as a neighborhood junkie.

The defense also called two alibi witnesses, Lirio Colon (not related to the complainant), and Maria Lara, who claimed to have known the defendant from when they lived in the same Bushwick neighborhood. Ms. Colon testified that 50 to 60 people attended the party, held at the home of Ms. Lara. The party was supposedly in celebration of Ms. Colon's birthday (January 27) and the baptism of her first grandchild, which had taken place earlier on that day. Both women testified to having seen the defendant at various times over the course of the evening. However, there were certain discrepancies in their testimony. They disagreed whether the defendant brought his children to the party. More significantly, the date of the party was in dispute. According to them, the party was not held on January 27th, but was rescheduled for January 31st (the date of the robbery), as a combined celebration of Ms. Colon's birthday and the...