People v. Ocasio

• Decision Date: 03 May 1979
• Citation: 389 N.E.2d 1101,416 N.Y.S.2d 581,47 N.Y.2d 55
• Parties: , 389 N.E.2d 1101 The PEOPLE of the State of New York, Respondent, v. Wilfredo OCASIO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 581

416 N.Y.S.2d 581

47 N.Y.2d 55, 389 N.E.2d 1101

The PEOPLE of the State of New York, Respondent, v. Wilfredo OCASIO, Appellant.

Court of Appeals of New York.

May 3, 1979.

Jeffrey Thaler and William E. Hellerstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Carol Y. Kendrick and Billie Manning, New York City, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

Wilfredo Ocasio, whose conviction for burglary stands affirmed by the Appellate Division, posits his appeal to us entirely on a claim that his trial was unfair because the Trial Judge refused to preclude the prosecution from attacking the credibility of his only witness by confronting her with a 32-year-old conviction of manslaughter for the fatal stabbing of her mother.

The case is simple. Arrayed against the defendant were the burglary victim and a lone identification witness who testified he saw the defendant depart the building in which the crime was committed immediately after it occurred. The defendant, who had no criminal record, took the stand to testify that he was not there at all. To support his alibi defense, he too was able to produce a witness a woman of mature years, who, he testified, had been like a mother to him. But there was a fly in this ointment. The lady, it turned out, possessed a rather extensive criminal record punctuated by the old matricide.

When the People rested, and before the defense began to put on its own case, counsel, relying on the remoteness of that crime and what he terms its "disproportionately prejudicial" nature, asked the trial court to apply the standards articulated in People v. Sandoval (34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) to preclude the prosecutor from resorting to the surrogate mother's criminal record to attack her credibility. The Judge, expressing the opinion that Sandoval does not pertain to a witness who is not a defendant and that, in any event, in the exercise of the court's discretion, the impeaching matter should be allowed, proceeded to reject the defendant's application. For the reasons which follow, we find no warrant for disturbing the subsequent order of affirmance.

First, we emphasize, once again, that Sandoval did not change substantive standards for permissible cross-examination on prior offenses (People v. Davis, 44 N.Y.2d 269, 275, 405 N.Y.S.2d 428, 430, 376 N.E.2d 901, 903; People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 822, 247 N.E.2d 642, 645, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Sorge, 301 N.Y. 198, 201-202, 93 N.E.2d 637, 639; People v. Webster, 139 N.Y. 73, 84, 34 N.E. 730, 733; People v. Tice, 131 N.Y. 651, 657-658, 30 N.E. 494, 496; People v. Duffy, 44 A.D.2d 298, 301, 354 N.Y.S.2d 672, 674 (Shapiro, J.), affd. 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. den. 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88). It sanctioned a procedure by which a Trial Judge may "make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a Defendant's credibility" (People v. Sandoval, supra, 34 N.Y.2d p. 374, 314 N.E.2d p. 416, 357 N.Y.S.2d p. 849). As our emphasis indicates, without gainsaying judicial responsibilities with regard to witnesses other than defendants, Sandoval focused on the rights of an accused.

Thus, in explaining why a prospective determination of the permissible scope of cross-examination on such matters was desirable, we there spoke of how fear of the probable effect of the introduction of testimony of this character often will cause a defendant to hide behind his or her privilege not to take the stand, thereby blotting out what may be the only available source of material testimony in support of the defense. In such a case, of course, a court's quest for the facts may compel it to make a difficult decision as to whether it is more important for the jury to hear the defendant's story than to know of the prior convictions (Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763; Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936). How it answers that question is bound to be a crucial determinant in the election a defendant, guilty or innocent, must make between testifying or not testifying.

The Sandoval court also took pains to remark on the need for a "sensitive, informed reconciliation of the interests of the People and the rights of the defendant" (34 N.Y.2d p. 375, 314 N.E.2d p. 417, 357 N.Y.S.2d p. 854). By way of illustration, among other things, it articulated concern that evidence of past conduct not be intended merely to demonstrate a propensity to commit the crime charged, obviously a prime hazard for a witness who is also a defendant (see Schaefer, The Suspect and Society, pp. 67-71; Note, Procedural Protections of the Criminal Defendant A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crime, 78 Harv.L.Rev. 426, 441). For the risk to be avoided is that "the presumption that a defendant is innocent may go by the board solely because of a jury's natural tendency to conclude, despite limiting instructions, that a defendant who has committed previous crimes is either the kind of person likely to have committed the crime charged or is deserving of punishment in any event (see People v. Mayrant, 43 N.Y.2d 236, 401 N.Y.S.2d 165, 372 N.E.2d 1; People v. Dickman, 42 N.Y.2d 294,...