People v. Reed

• Decision Date: 27 July 1981
• Citation: 83 A.D.2d 645,441 N.Y.S.2d 518
• Parties: The PEOPLE, etc., Respondent, v. Albert REED, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 518

441 N.Y.S.2d 518

83 A.D.2d 645

The PEOPLE, etc., Respondent, v. Albert REED, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 27, 1981.

William L. Ostar, Rockville Centre, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Claire Friedman, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before GIBBONS, J. P., and GULOTTA, COHALAN and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 24, 1979, convicting him of robbery in the second degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

Cross-examination of a defendant's alibi witness as to his or her prior silence is generally permissible when done in "good faith" because of "the natural impulse of a person possessing exculpatory information * * * to come forward at the earliest possible moment in order to forestall the mistaken prosecution of a friend or loved one" (People v. Dawson, 50 N.Y.2d 311, 318, 323, 428 N.Y.S.2d 937, 406 N.E.2d 793). A proper foundation must first be laid and there should be a bench conference to determine the reason for the silence. The court should instruct the jury that the witness has no civic or moral duty to disclose, and that silence is only relevant with respect to ascertaining the witness' credibility (People v. Dawson, supra, pp. 321-323, 428 N.Y.S.2d 937, 406 N.E.2d 793).

Defendant presented two alibi witnesses who testified that at the time of the alleged mugging, they, along with others, were with the defendant in a stolen car, in a different part of Brooklyn. They were allegedly just driving around, drinking beer and smoking marijuana. The two witnesses admitted knowing the car was stolen and that it was unlawful to ride in a stolen car. After this admission both witnesses were asked if they had previously reported their story to the police. These questions were allowed over objection. The court instructed the jury that the witnesses did not have a duty to come forward. However, the court neglected to instruct the jury that these questions, and the answers, were solely relevant on the issue of credibility. This was error.

Of more importance is the failure to determine the reason for the witnesses' silence. One of the factors that must be demonstrated by the District Attorney in laying a proper foundation for this type of cross-examination is that the witness had a reasonable motive for acting to exonerate the defendant ( People v. Dawson, supra, p. 321, n.4, 428 N.Y.S.2d 937, 406 N.E.2d 793). It may well have been that both witnesses in the instant case were afraid to come forward because they anticipated being arrested for riding in a stolen car. In People v. Dawson (supra, p. 321, 428 N.Y.S.2d 937, 406 N.E.2d 793), the Court of Appeals held that cross-examination of...