People v. Reingold

• Decision Date: 11 April 1974
• Citation: 44 A.D.2d 191,353 N.Y.S.2d 978
• Parties: PEOPLE of the State of New York, Respondent, v. Robert REINGOLD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 978

353 N.Y.S.2d 978

44 A.D.2d 191

PEOPLE of the State of New York, Respondent, v. Robert REINGOLD, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 11, 1974.

Nathaniel A. Barrell, Buffalo, for appellant (Henrietta M. Wolfgang, Buffalo, of counsel).

Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent (John A. Joseph, III, Snyder, of counsel).

Before WITMER, J.P., and CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ.

OPINION

WITMER, Justice Presiding.

Defendant appeals from a judgment of Erie County Court convicting him upon a jury verdict of guilty of burglary in the first degree and grand larceny in the third degree and sentencing him to two indeterminate concurrent terms not to exceed 25 years and 4 years respectively, but both to run consecutively to a five-year Federal sentence recently imposed on him for conspiring to sell counterfeit currency. Defendant submits that several errors were committed upon his trial and contends that the judgment should be reversed.

Some facts of the crime and of the trial proceedings must be stated as basis for considering defendant's contentions. On August 4, 1968 complainant, a thirty-three year old woman, lived alone in a first-floor apartment in Williamsville, New York. She retired at 2:00 A.M. with the door locked and windows open but screened. She awoke at 3:00 A.M. and saw defendant standing at the foot of her bed. The room was illuminated by floodlights shining from the adjacent parking lot and by traffic on the Thruway. Defendant had a knife and said that if she did not holler, she would not be hurt. She told him to take what he wanted. He said that he had, but since he unexpectedly found a nice lady there, he would take advantage of it, and he held the knife close to her throat. She told him that she felt ill and needed to go to the bathroom, and she went there for five minutes, hoping that he would leave. He kept his knife in the door so that she could not lock it. While there she opened the door a bit and observed him for a few seconds. She returned to the bedroom and he asked her to lie on the bed, and he proceeded to commit oral sodomy on her and then normal sexual intercourse. After about a half hour in the room defendant left, and complainant called the police. She discovered that her watch, valued in excess of $350, and $120 in cash were missing, and that the window screen had been cut and removed. She gave a statement to the Amherst police that morning. The police dusted the screen for finger prints and found a palm print thereon which later compared to defendant's palm. Complainant viewed three line-ups at the police department on December 28, 1968 and identified the defendant.

Defendant testified in his own behalf. In 1951, at the age of 16 years, he pled guilty to a charge of malicious mischief and was placed on probation. He violated his probation by not reporting and was sentenced to six months in the Erie County Penitentiary. In 1957 he pled guilty to an assault charge and in 1959 he pled guilty to stealing a safe and a car with two other men. In 1960 he pled guilty to attempted robbery in Ontario, Canada. He was armed with a pocket knife at that time and served 10 months. Defendant was convicted in Federal Court in June of 1972 for conspiracy to sell counterfeit money to a secret service agent. Defendant testified that he was home with his wife on August 4, 1968; that he delivered milk to a store next door to complainant's apartment, and could possibly have touched her window screen in passing, and that could account for his palm print there.

Defendant's wife, to whom he was married on May 22, 1965 and by whom he has two children, testified in his behalf. She testified that on August 4, 1968 defendant was at home in bed with her, but she never told that to the police or the District Attorney.

Defendant was indicted on 24 counts, only the first five relating to the matter of the complainant. The other 19 counts related to similar crimes however. At defendant's request before the first trial began the court severed the last 19 counts of the indictment, and defendant proceeded to trial on the first five counts, to wit, first count, burglary in the first degree, entering complainant's dwelling with intent to rob; second count, same with intent to commit larceny; third count, same with intent to rape; fourth count, same with intent to commit sodomy; and fifth count, grand larceny in the third degree of a watch and cash. Defendant's first trial began in September, 1971. A Wade hearing preceded the actual trial, and the court ruled that the complainant's observations at the scene of the crime were not tainted by an illegal police line-up and were admissible at the trial. This ruling is not contested on this appeal. At the close of the People's case on September 24, 1971, the court dismissed counts 1, 3 and 4 for insufficiency of proof, and the case proceeded on counts 2 and 5. The jury deadlocked, and on September 27, 1971 the court declared a mistrial and ordered a new trial.

For the retrial defendant retained new counsel. He demanded a new Wade hearing and that was denied. He demanded that the three counts (1st, 3rd and 4th) which were dismissed on the first trial be omitted from the charges on the new trial, but the court overruled him. He also asked to withdraw the request he made at the first trial for severance of the last 19 counts of the indictment, and asked that all counts, excepting the 1st, 3rd and 4th, be tried together; and the court denied that. The court also denied defendant's request that his handcuffs be removed when he was in the presence of the jury. The new trial began on November 22, 1972 and at the close of the testimony the court again dismissed counts 1, 3 and 4 for failure of proof. Only counts 2 and 5 went to the jury, and defendant was found guilty thereof and this appeal is from his sentence thereon.

Defendant contends that his retrial was prejudiced by the court also retrying him on counts 1, 3 and 4 of the indictment which had been dismissed by the court on the first trial before the case went to the jury. He argues that although on the second trial these counts were again dismissed before the case went to the jury, the District Attorney did not prosecute these counts in good faith, because he knew that he had no additional evidence to support them and was retrying them before the same judge who had dismissed them on the first trial and presumably would again dismiss them; and that his purpose in re-presenting these charges was to prejudice the defendant in the eyes of the jury. We agree with this contention, and under these circumstances we find that it was error to retry the defendant on these counts.

Defendant contends that the court erred in denying him a new Wade hearing before the retrial with his new counsel. This argument is without merit. We have held that in the absence of an allegation that new evidence exists as a ground for suppression, a defendant is not entitled to a second Wade hearing (People v. Buthy, 38 A.D.2d 10, 13, 326 N.Y.S.2d 512, 515).

Defendant asserts that the court should have reconsolidated the additional 19 counts of the indictment upon the second trial. Subd. 3 of section 200.20 of the Criminal Procedure Law provides in part that,

'(T)he court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others, or that two or more thereof be tried together but separately from two or more others thereof'.

While there is no statutory provision dealing with the consolidation of severed counts (CPL, § 200.20, subds. 4 and 5 deal with the consolidation of two or more indictments), it would appear that such a consolidation must be in the interest of justice and must rest in the discretion of the court. Good cause has not been shown why the severed counts should be reconsolidated, and in fact it appears that such a consolidation would work to the prejudice of defendant. Additional witnesses would have to be called who could lead the jury to the conclusion that defendant had a propensity to commit the offenses alleged (cf. People v. Hayden, 37 A.D.2d 945, 325 N.Y.S.2d 968). Accordingly, the court properly denied defendant's request to consolidate for the retrial the charges in the indictment.

On cross-examination the People questioned defendant regarding a previous conviction for attempted armed robbery in 1960. They questioned him regarding the knife that he used and also asked whether this was an attempted armed robbery on a Theresa Hillman, twenty-one years of age. Defendant contends that his examination as to the details of the prior conviction was intended to show his propensity for the crime charged, and that it was error.

A 'defendant who chooses to testify may be cross-examined concerning any immoral, vicious, or criminal acts which have a bearing on his credibility as a witness' (People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 820, 247 N.E.2d 642, 644). The offenses inquired into on cross-examination need not be similar to the crime charged nor are they to be limited in number so long as they have some basis in fact and are asked by the prosecutor in good faith (People v. Williams, 33 N.Y.2d 904, 352 N.Y.S.2d 626, 307 N.E.2d 560; People v. Alamo, 23 N.Y.2d 630, 298 N.Y.S.2d 681, 246 N.E.2d 496; People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637). There are, however, limitations. The defendant cannot be questioned about a criminal charge on which he has been acquitted (People v. Santiago, 15 N.Y.2d 640, 255 N.Y.S.2d 864, 204 N.E.2d 197), and he cannot be asked whether he...