People v. Pepper

• Decision Date: 22 July 1982
• Parties: The PEOPLE of the State of New York, Respondent, v. Theodore PEPPER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 868

453 N.Y.S.2d 868

89 A.D.2d 714

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

Supreme Court, Appellate Division Third Department.

July 22, 1982.

McDermott & Cheeseman, Albany (Peter Porco, Albany, and Robert M. Cohen, Ballston Lake, of counsel), for appellant.

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

Before MAHONEY, P. J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered February 4, 1982, upon a verdict convicting defendant of two counts each of the crimes of sodomy in the second degree and sexual abuse in the second degree.

The indictment in the instant case charged defendant with three counts of sodomy in the second degree and two counts of sexual abuse in the second degree, all involving an 11-year-old female child and occurring during the months of June through September, 1977. After an unsuccessful motion for change of venue, on the basis of prejudicial pretrial publicity, and a suppression hearing and various other pretrial motions before the County Court, defendant pleaded guilty to a single count of sodomy in the second degree in full satisfaction of the indictment. He was sentenced to an indeterminate term not to exceed seven years. On appeal from this conviction, however, we reversed, holding that a statement given to the State Police should have been suppressed, and remanded the case to the County Court for trial (People v. Pepper, 76 A.D.2d 1006, 429 N.Y.S.2d 490, affd. 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366). Upon that trial, defendant was found guilty of two counts of sodomy in the second degree and two counts of sexual abuse in the second degree, and was sentenced to consecutive terms of 2 1/3-7 years on the sodomy convictions and to one-year concurrent terms on the sexual abuse convictions. This appeal ensued.

Defendant's first major argument for reversal is that he was denied his constitutional right to a fair trial by an impartial jury by reason of the extensive pretrial publicity concerning the case (including news media coverage of his prior guilty plea and reversal of his conviction on appeal) and by the manner in which the trial court conducted the jury selection process. Regarding pretrial publicity, undeniably because of defendant's prominence as a major automobile dealer in the area and the sordid nature of the crimes he stood accused of committing, the case initially received wide exposure in the print and broadcast media. Nevertheless, as defendant's exhibits show, interest in the case waned after defendant's guilty plea and was only intermittently revived when later events occurred in the course of the appellate process. The intensity and frequency of news coverage clearly abated by the time the case was reached for trial. The Supreme Court has held that extensive knowledge in the community of the crime and of the accused is not sufficient by itself to establish that a trial is unfair (Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344). Viewing the totality of the circumstances, including the general atmosphere of the community, the conduct of jury selection, and the trial in general, defendant has failed to establish that he did not receive a fair trial. Clearly, this is not a case where the conviction had been "obtained in a trial atmosphere that had been utterly corrupted by press coverage" (Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589). As in Murphy, only roughly one-quarter of the jury panel had to be excused for having preconceived opinions of defendant's guilt. No significant difficulty was encountered in selecting a jury whose members either had never previously considered the merits of the case or who swore that whatever they previously knew or believed about the facts, they could be impartial and judge the case solely on the evidence produced at the trial. The trial court took appropriate measures to safeguard the integrity of the trial and to insulate prospective jurors from possible prejudice by conducting individual voir dire examinations in camera, and by posing questions to potential jurors during the examinations which skirted potentially prejudicial facts which the jurors might not otherwise have known. Also persuasive that the more contemporaneous publicity concerning the case was not prejudicial is that defendant did not choose to renew his prior motion for a change of venue after his original conviction was reversed. We likewise hold that no prejudicial error occurred in the jury selection process itself. Defendant contends that the court's questions to several prospective jurors were leading and suggestive so as to preclude their honest expression of possible bias. A reading of the entire voir dire examinations of these jurors reveals, however, that the questions objected to were preceded by appropriately formed questions by counsel and the court, probative of whether they could render an impartial verdict based solely on the evidence, unaffected by any prior knowledge or belief concerning the case. In context, these questions were more a means to terminate or curtail further examination, or to summarize the juror's prior answers, than to dictate responses. The trial court in a criminal case is vested with broad discretion to control and restrict the scope of voir dire examination of jurors and to prevent unduly long jury selection (People v. Boulware, 29 N.Y.2d 135, 140-143, 324 N.Y.2d 30, 272 N.E.2d 538, cert. den. 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463). It may also restrict repetitive or irrelevant questioning by counsel (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). All in all, defendant was given a fair opportunity to explore the states of mind of the jurors for possible prejudice (People v. Boulware, supra, 29 N.Y.2d p. 140, 324 N.Y.S.2d 30, 272 N.E.2d 538). It is noteworthy that defendant chose to challenge for cause only one of the several jurors to whom the objected-to questions were addressed. As to that juror, her responses during the voir dire examination sustained the court's denial of defendant's challenge. It was likewise within the court's discretion to deny because of tardiness defendant's request for additional peremptory challenges, interposed well into the jury selection process and after the prosecution had already accepted several jurors. It was improper for the County Court to refuse to permit the defense to challenge one of four jurors in the box outside their hearing (CPL 270.15, subd. 2), but since there was no basis for exercising a challenge as to those jurors, the error could not adversely have affected the verdict (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Concerning the conduct of the trial itself and the verdict, the only assignments of error meriting consideration relate to the adequacy of the instructions to the jury concerning corroboration and the sufficiency of the corroborative evidence to sustain the convictions. Defendant contends that the charge to the jury was inadequate in two respects, namely, in failing to marshal the evidence and explain its relationship to the law of corroboration (CPL 300.10, subd. 2), and in failing to charge that Mary Angus, the child's mother, was an accomplice of defendant and as such her testimony was required to be corroborated (CPL 60.22). The first of these points is clearly without merit. The court correctly stated and explained the law with respect to corroboration of the victim's testimony in a sex offense case (Penal Law, § 130.16). It further indicated that the jury was to look to the testimony of Mary Angus to determine whether there was sufficient corroboration. Angus' testimony was painstakenly analyzed in both summations. The degree to which a trial court is required to marshal the evidence is dependent upon the complexities of the case and the consequent necessity to explain to the jury the application of the law to the facts (People v. Culhane, 45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. den. 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706; People v. Odell, 230 N.Y. 481, 130 N.E. 619). The presentation of evidence consumed only two days of trial. That the jury understood the significance of Angus' testimony on this issue is demonstrated by its request to have her testimony read back. Nor was any prejudicial error committed by the court's denial of defendant's request that it charge the accomplice corroboration rule regarding Angus' testimony to the effect that the jury could not convict defendant on the testimony of Angus without other evidence tending to connect defendant with the crime (CPL 60.22). Concededly, Angus was an accomplice, as a matter of law, and was named as such in the indictment. ^* But the prosecution's entire case was built to stand or fall, not upon her testimony, but on the testimony of the victim, and the District Attorney said as much in his summation. It is thus inconceivable that the jury could have voted to convict defendant based upon Angus' testimony (which disclaimed observing the actual commission of the offenses), while at the same time substantially rejecting the child's testimony. Charging the accomplice corroboration rule with respect to Angus' testimony would thus have added nothing to what was already self-evident--that acquittal was required if the jury rejected the victim's story. As the court noted, to have...