People v. Olsen

• Decision Date: 13 June 1974
• Citation: 313 N.E.2d 782,357 N.Y.S.2d 487,34 N.Y.2d 349
• Parties: , 313 N.E.2d 782 The PEOPLE of the State of New York, Respondent, v. Alfred E. OLSEN, Jr., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 487

357 N.Y.S.2d 487

34 N.Y.2d 349, 313 N.E.2d 782

The PEOPLE of the State of New York, Respondent, v. Alfred E. OLSEN, Jr., Appellant.

Court of Appeals of New York.

June 13, 1974.

Donald J. Farinacci, Mineola, for appellant.

Francis W. Rhinow, Acting Dist. Atty. (David F. Jordan, Riverhead, of counsel), for respondent.

WACHTLER, Justice.

After the jury had been deliberating for several hours, the trial court permitted the District Attorney to recall a prosecution witness for the purpose of giving additional testimony. The defendant objected to this procedure at the trial, and on this appeal claims that it was an abuse of discretion. Under the circumstances of this particular case, we agree that the defendant should be given a new trial.

The defendant was indicted on two counts of burglary, two counts of grand larceny and one count of forgery, all arising out of the daylight burglaries of two Suffolk County homes, one of which belonged to Peter Dounias. At the trial the People introduced statements signed by the defendant in which he confessed that he had committed the crimes. The defendant took the stand and testified that he had not committed the crimes and only signed the confessions after he had been beaten and threatened by the police.

Except for the statements only circumstantial evidence pointed to the defendant's guilt. One aspect of the prosecutor's case, used to establish the reliability as well as the voluntariness of the defendant's confession, consisted of certain credit cards taken from the Dounias residence and later recovered from a trash barrel located at a service area on the Long Island Expressway. According to the police the defendant himself, following his arrest and initial oral confession, directed them to this location where the cards were discovered between 1 and 2 o'clock on the afternoon of November 18, 1971. Peter Dounias testified for the prosecution that he identified the cards on that same date. However, on redirect examination, he stated that he had seen the cards and made the identification at the station house 'shortly before noon', and although he was 'not positive as to the time' it was 'pretty close to' lunch time.

On the last day of trial, at about 1 o'clock in the afternoon, the jury retired to deliberate. Three hours later they returned to the courtroom and requested that certain testimony, including the testimony of Peter Dounias, be read back to them. After an hour they retired only to return at 8:30 p.m. with a request that the 'cross-examination and redirect examination of Mr. Peter Dounias' be reread. After this was done several of the jurors asked the court questions directed particularly to the time that the police recovered the credit cards and the time that Dounias saw them at the police station. Apparently with the consent of counsel, these questions were answered by the Trial Judge after he referred to his bench notes.

At the conclusion of these inquiries one of the jurors asked the court to read once again 'The last two or three questions' of the cross-examination and the brief redirect examination of Peter Dounias. At this point the prosecutor indicated that he had a request to make of the court, and after the jury was withdrawn, made the following application: 'Your Honor, it seems that since 3:15 this afternoon the jury has been hung up on the point of when Mr. Dounias got to the precinct in order to initial, sign, look at the credit cards. Now, at the time of trial he testified that to his recollection it was 12:30 or twelve o'clock. * * * Now, Detective Ryan indicated to me that that was not the case, that it was later. I tried to get a hold of Mr. Dounias from that time until today. I still haven't spoken to him, although I did reach his wife this evening. She told me the time that he came to the precinct was later in the afternoon, about three * * * Mr. Dounias can come back and testify whatever he remembers and no one has--I haven't spoken to him. Now, the point is obviously an important one. Because, number one, the jury has three times said it was important, has come out and asked for about six readings on the same point. It is critical not as an element of the offense * * * but to the voluntariness of the defendant's confession * * * Because if he cooperated with them and brought the police to the expressway, then my argument to the jury was he was cooperating. He wasn't a man who had just been beaten and it's preposterous to believe that a man who didn't want to cooperate with the police, who hated them, would lie if he could, would bring them to the very trash can on the Long Island Expressway where the fruits of the crime were * * * (but) the defendant has alleged they were planted there. And if those cards were in the station house and Dounias brought them there or saw them there at twelve o'clock, it gives credence to the defendant's testimony.'

Defense objections to this motion on the ground that the prosecutor had ample time to recall the witness during the trial--which lasted three days after Dounias testified--and that to introduce additional evidence at this time would 'in effect be denying (the defendant) a fair trial' were overruled. The court recalled the jury, advised them of the offer and asked them whether they wished to hear additional testimony from the witness.

Shortly before 11:00 p.m. Peter Dounias resumed the stand and, under direct and cross-examination, testified that he identified the credit cards at the police station 'sometime in the afternoon. I don't recall specifically the exact moment or part of the afternoon. The only thing I recall is that I had a late lunch that day and I went down during the afternoon * * * My best recollection, anywhere from noon to three, four o'clock in the afternoon.'

Within the hour the jury returned with a guilty verdict on the burglary and larceny counts relating to the Dounias residence and acquitted the defendant on the other counts.

In this State the order of trial in criminal cases is fixed by statute (CPL 260.30, McK.Consol.Laws, c. 11--A, formerly Code Crim.Proc., § 388). The statutory framework however is not a rigid one and the common-law power of the trial court to alter the order of proof 'in its discretion, (and) in furtherance of justice' remains at least up to the time the case is submitted to the jury (People v. Benham, 160 N.Y. 402, 437, 55 N.E. 11, 22; see, also, People v. Koerner, 154 N.Y. 355, 368, 48 N.E. 730, 734; People v. Reaves, 26 N.Y.2d 921, 310 N.Y.S.2d 104, 258 N.E.2d 401). But to allow additional evidence after the jury has retired presents a problem of a different order and although, in one case, we recognized the court's power to do so 'on proper facts', we cautioned that 'such a practice is not to be encouraged or lightly pursued'. (People v. Ferrone, 204 N.Y. 551, 553, 98 N.E. 8.)

There are obvious reasons why at this stage the power to reopen a case for additional proof must be exercised with utmost caution. One reason of course is that at some point the trial must come to an end (cf. Mary v. State, 5 Mo. 71). If requests to reopen were casually granted and became routine, the orderly trial process, fundamental to our jurisprudence, would soon erode away. Another consideration, apart from the merits of a predictable trial...