People v. Pepper

• Decision Date: 30 June 1983
• Citation: 452 N.E.2d 1178,59 N.Y.2d 353,465 N.Y.S.2d 850
• Parties: , 452 N.E.2d 1178 The PEOPLE of the State of New York, Respondent, v. Theodore PEPPER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 850

465 N.Y.S.2d 850

59 N.Y.2d 353, 452 N.E.2d 1178

The PEOPLE of the State of New York, Respondent, v. Theodore PEPPER, Appellant.

Court of Appeals of New York.

June 30, 1983.

Robert M. Cohen, Ballston Lake, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

When this case was previously before us, defendant had pleaded guilty to sodomy in the second degree (Penal Law, § 130.45) in satisfaction of a five-count indictment. We determined that our holding in People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344, should be applied retrospectively to cases still in the appellate process at the time that decision was announced, requiring suppression of defendant's pretrial statement. Accordingly, defendant's conviction was reversed, his guilty plea was vacated, and the case was remitted to County Court for further proceedings (People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, affg. 76 A.D.2d 1006, 429 N.Y.S.2d 490, cert. den. 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383).

At the ensuing trial, the complaining witness, who was 11 years old at the time of the acts complained of, testified that her mother had arranged meetings between her and the defendant, at which she was expected "to do sexual things with him". During these encounters, which took place in parking lots in the Town of Colonie, defendant engaged in acts of sexual contact with the witness. After each meeting, the witness's mother received money from defendant in varying sums.

Defendant was convicted of two counts of sodomy in the second degree (Penal Law, § 130.45) and two counts of sexual abuse in the second degree (Penal Law, § 130.60). This appeal is from the order of the Appellate Division, 89 A.D.2d 714, 453 N.Y.S.2d 868, affirming his conviction.

Defendant argues first that his motion for a change of venue was improperly denied and that he was deprived of a fair trial by the extensive publicity given the matter prior to trial. The motion was made in the Appellate Division in connection with the previous proceedings leading up to defendant's guilty plea and was denied approximately three years before the instant trial began.

Defendant presents no basis upon which to conclude that the Appellate Division in denying the motion deprived the defendant of his constitutional right to a fair trial, considering the circumstances existing at the time the motion was made. Rather, to support his claim of prejudice, defendant relies primarily upon publicity and media exposure occurring after the motion had been denied. Defendant, by not pursuing his application after his conviction was reversed, failed to preserve any claim that the significant change in circumstances (i.e., additional and prejudicial publicity) warranted a change of venue.

Nor can it be said that defendant was deprived of a fair trial by reason of the pretrial publicity. As the Appellate Division recognized, only 25% of the jury panel was excused for having preconceived ideas concerning defendant's guilt, and the impartiality of the jurors ultimately chosen to serve was assured by the conduct of the selection process. Precautions were taken by the trial court to ensure that the voir dire examinations did not themselves become a potential source of prejudice. Defense counsel was given an adequate opportunity to explore thoroughly what information each potential juror had previously acquired about the case as well as any preconceiv opinions or attitudes about the case or defendant. The record does not support defendant's contention that the trial court's curtailment of additional questioning at several points during voir dire and its own examination of the prospective jurors to determine whether they could render an impartial verdict, were designed to preclude the jurors' honest expression of opinion.

The trial court has broad discretion to prevent this most time-consuming phase of a jury trial from becoming unduly protracted (People v. Boulware, 29 N.Y.2d 135, 140, 324 N.Y.S.2d 30, 272 N.E.2d 538; People v. Corbett, 68 A.D.2d 772, 778-779, 418 N.Y.S.2d 699, affd. 52 N.Y.2d 714, 436 N.Y.S.2d 273, 417 N.E.2d 567), and defendant has not demonstrated that the court abused that discretion. Importantly, the court's efforts to curtail further repetitious questioning and to effectively summarize the jurors' previous responses by asking questions in conclusory fashion did not place undue restrictions or limitations upon defense counsel's ability to explore fully the relevant opinions and...