People v. Pavao

• Citation: 464 N.Y.S.2d 458,451 N.E.2d 216,59 N.Y.2d 282
• Parties: , 451 N.E.2d 216 The PEOPLE of the State of New York, Respondent, v. Frank PAVAO, Appellant.
• Decision Date: 16 June 1983
• Court: New York Court of Appeals Court of Appeals

Page 458

464 N.Y.S.2d 458

59 N.Y.2d 282, 451 N.E.2d 216

The PEOPLE of the State of New York, Respondent, v. Frank PAVAO, Appellant.

Court of Appeals of New York.

June 16, 1983.

Spiros A. Tsimbinos, Kew Gardens, and Hyman J. Greenberg, Forest Hills, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Jeanette Lifschitz and Richard G. Denzer, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

On this appeal we are asked to consider whether the trial court erred in refusing to allow a defense witness to testify, for purposes of impeachment, that a key prosecution witness had a bad reputation in the community for truth and veracity. Also presented for our consideration is the sufficiency of the evidence to support the convictions for assault in the first and second degrees.

In the early morning hours of December 14, 1979, a fight broke out in "Pop's Bar" in Queens. According to the prosecutor, defendant Frank Pavao, accompanied by Joseph Pavao and Pasquale Tridico, approached James Irwin and John Staganelli, who were sitting at the bar, and, for no apparent reason, struck both men in the face with a pistol. ¹ The ensuing fight spilled out onto the sidewalk in front of the tavern where Patricia Pittman and Thomas Walters happened to be passing by. As Irwin and Staganelli walked away, defendant began cursing and hurling racial slurs at Pittman and Walters, both of whom are black. A fight ensued, during the course of which Walters was beaten and knocked to the ground by defendant and his two companions. Defendant then produced a pistol and shot Walters. The three men fled while Pittman called for help.

The police arrived shortly thereafter and Pittman furnished them with a description of the man who shot Walters, to wit: a young white male, 5 feet 3 inches to 5 feet 5 inches tall, weighing 150 pounds, with short curly hair, a beard and moustache and wearing a beige turtleneck sweater and black hat. She then accompanied the police officers as they patrolled the neighborhood in search of the suspects. At 97th Street and Sutphin Boulevard, about two blocks from the scene of the shooting, Pittman saw three men being detained by two other police officers and immediately identified the men as Walters' assailants. She specifically pointed out defendant as the man who had shot Walters.

Defendant was arrested and charged with attempted murder in the second degree and assault in the first degree with respect to the attack on Walters and two counts of assault in the second degree with respect to the attacks on Irwin and Staganelli. After a jury trial, defendant was found not guilty of attempted murder, but was convicted of the remaining charges. Defendant appealed and the Appellate Division, 89 A.D.2d 825, 452 N.Y.S.2d 473, affirmed, without opinion.

Defendant, on this appeal, contends that there was insufficient evidence to sustain his convictions. He also contends that various trial errors require that his convictions be reversed and a new trial ordered.

Initially, we hold that the evidence adduced at trial was insufficient as a matter of law to sustain defendant's conviction on the two counts of second degree assault. With respect to these charges, both of the complainants, Irwin and Staganelli, testified that the defendant was not the person who assaulted them. Additionally, the barmaid on duty the night of the attack, Elizabeth Lerch, testified that she knew defendant and that he was not in the bar that night. In view of this evidence, Patricia Pittman's testimony that she saw the defendant push Irwin and Staganelli out of the bar immediately before the fight with Walters broke out does not constitute proof beyond a reasonable doubt that defendant pistol-whipped Irwin and Staganelli inside the bar. Pittman's eyewitness account of the shooting and her positive identification of defendant as the man who shot Walters did, however, provide the jury with sufficient evidence to convict defendant of the first degree assault charge.

Defendant also contends that various trial errors deprived him of his right to a fair trial and that his conviction of first degree assault should be reversed accordingly and a new trial ordered. We agree.

Defendant's principal argument for reversal focuses on the trial court's refusal to allow defendant to call a witness to testify that one of the prosecution's witnesses had a bad reputation in the community for truth and veracity.

At the trial, the prosecutor called as a witness, Serafim Pelarigo, an employee of a Portuguese social club located at 95-41 Sutphin Boulevard, one block from the scene of the shooting. Pelarigo testified that defendant entered the club at approximately 1:00 a.m. on December 14, 1979 and said that he had just shot a black man in a bar. Pelarigo further testified that he told the defendant to leave and that when they met again on August 20, 1980, Pavao asked him why he had not helped him the night of the incident. On cross-examination, Pelarigo admitted that although he had told his wife about the shooting, he failed to notify the police or anyone else of defendant's admission. Pelarigo also admitted that he had had a fight with defendant subsequent to December 14.

Defense counsel then called James Velasquez as a witness for the purpose of impeaching Pelarigo's credibility. Velasquez testified that he knew Pelarigo personally. Further questioning, however, was interrupted by the prosecutor's repeated objections. A side bar conference was held, at which defense counsel made an offer of proof stating that "I am putting--I am putting him on the stand for the sole purpose and I am leading into it as to the reputation of Serafim Pelarigo in the community and in him being able to tell the truth." ² The court ruled that this was a collateral issue which could not be inquired into because Velasquez had nothing to do with the shooting. Thereupon, Velasquez was dismissed and the jury was instructed to disregard all of the questions asked of the witness and the answers given by him.

The general rule of evidence in this State concerning the impeachment of witnesses with respect to collateral matters is that "the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility." (Richardson, Evidence § 491, p 477.) It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. (People v. Zabrocky, 26 N.Y.2d 530, 535, 311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Duncan, 13 N.Y.2d 37, 41, 241 N.Y.S.2d 825, 191 N.E.2d 888; People v. Sorge, 301 N.Y. 198, 201, 93 N.E.2d 637.) This rule is premised on sound policy considerations for if extrinsic evidence which is otherwise inadmissible is allowed to be introduced to contradict each and every answer given by a witness solely for the purpose of impeaching that witness, numerous collateral minitrials would arise involving the accuracy of each of the witness' answers. The resulting length of the trial would by far outweigh the limited probative value of such evidence. (See People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96, supra.)

Where, however, the cross-examiner does not seek to contradict specific answers given by a witness, but, rather, attempts only to show that the witness has a bad reputation in the community for truth and veracity, the rule is different. The rule in such cases is that other qualified witnesses may be called to testify with respect to the witness' reputation for untruthfulness. (People v. Hinksman, 192 N.Y. 421, 432, 85 N.E. 676; Richardson, Evidence § 494, p. 479; Fisch, New York Evidence, § 452, p. 259; 65 N.Y.Jur., Witnesses, § 75, p. 238.)

In People v. Hinksman (supra), we limited the use of extrinsic impeaching testimony to attack on the witness' reputation for truth and veracity; in so doing, we held that evidence of the witness' general reputation is inadmissible for purposes of impeaching his credibility. (People v. Hinksman, supra, at pp. 433, 435, 85 N.E. 676.) The rule set forth in Hinksman is not in conflict with the policy considerations which preclude parties from introducing for purpose of impeachment extrinsic evidence to contradict a witness' answers.

When the use of extrinsic impeaching testimony is limited to a general statement that the witness' reputation in the community for truth and veracity is bad, there is no fear that trials will become unnecessarily protracted affairs involving numerous minitrials over whether or not a witness' answer was accurate or whether a witness did a particular act. Nor will the introduction of this evidence divert the jury's attention from the main issues involved in the trial. Thus, we see no reason why such evidence which is probative of a witness' credibility (McCormick, Evidence § 41, p. 81), should not be admissible. To hold otherwise would be to deny the jury an effective means of testing and assessing the credibility of witnesses and reaching a proper verdict. We hold, therefore, that a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity. Whether the opposing party may call witnesses to rebut the impeaching witness' statement is a question best left to the discretion of the Trial Judge for it is he who can best assess whether doing so may result in confusion or cause the trial to be unduly extended in length.

Turning then to the facts of the case on appeal, we...