People v. Rivera

• Decision Date: 31 May 1984
• Citation: 101 A.D.2d 981,477 N.Y.S.2d 732
• Parties: The PEOPLE of the State of New York, Respondent, v. Elizabeth RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 732

477 N.Y.S.2d 732

101 A.D.2d 981

The PEOPLE of the State of New York, Respondent, v. Elizabeth RIVERA, Appellant.

Supreme Court, Appellate Division Third Department.

May 31, 1984.

Mark B. Harris, Troy, for appellant.

Charles J. Wilcox, Dist. Atty., Troy (Richard L. Nabozny, Hudson, of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Rensselaer County, rendered September 8, 1982, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Defendant was indicted for manslaughter in the first degree for the shooting death of Porfirio Fonseca on June 22, 1981. After a trial by jury, during which defendant relied on the defense of justification, defendant was found guilty as charged and sentenced to an indeterminate term of incarceration of 4 to 12 years. On this appeal, defendant urges that certain errors during the trial require reversal of her conviction. We disagree and affirm.

Defendant claims that County Court, in precluding testimony concerning her state of mind and intent at the time of the shooting, unduly restricted her defense which was designed to demonstrate that defendant was justified in killing Fonseca because he posed a threat to the physical safety of her family. It is well settled that when the defense of justification is presented, a defendant's state of mind is the crucial fact (see People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841; People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619), and that where an actor's state of mind is a material issue, the actor is allowed to testify concerning such issue (see People v. Levan, 295 N.Y. 26, 33-34, 64 N.E.2d 341); (People v. Moran, 246 N.Y. 100, 103, 158 N.E. 35). Accordingly, it was error for County Court to restrict defendant's testimony concerning her state of mind at the time of the shooting (see People v. Stewart, 37 A.D.2d 908, 325 N.Y.S.2d 533). Our review of the record, however, convinces us that this error does not require reversal. At other times during her testimony, defendant did convey her fear for her family's safety at the time of the shooting, i.e., defendant testified, "He laid down and I kept shooting him to leave him dead because I can't leave him alive. If I leave him alive I know he is going to kill my kids." Thus, the precluded testimony was cumulative to that heard by the jury, which was able to consider the justification defense with knowledge of defendant's state of mind at the pertinent time. Accordingly, there is no significant probability that the jury would have acquitted defendant if it heard the precluded testimony and any error in this regard was harmless, not requiring reversal (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Also without merit is defendant's claim that County Court erred in denying her motion pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 and allowing the prosecution to impeach defendant with cross-examination concerning previous petit larceny charges and to show, upon denial, her conviction upon a plea of guilty of disorderly conduct. Acts of individual dishonesty, such as offenses involving theft, have a material relevance to a defendant's credibility (id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413). A dismissal in satisfaction of a plea is not an acquittal which would preclude a prosecutor from inquiring about the underlying acts of the crime because it is not a dismissal on the merits (People v. Alberti, 77 A.D.2d 602, 603, 430 N.Y.S.2d 6, lv. to app. den. 51 N.Y.2d 728, 431 N.Y.S.2d 1051, 410 N.E.2d 1238, cert. den. 449 U.S. 1018, 101 S.Ct. 581, 66 L.Ed.2d 478). Furthermore, disorderly conduct, as a "violation" (Penal Law, § 240.20), is an "offense" (Penal Law, § 10.00, subds. 1, 3), which may be used to impeach the credibility of a defendant (CPL 60.40; see People v. Gray, 41 A.D.2d 125, 126, 341 N.Y.S.2d 485, affd. 34 N.Y.2d 903, 359 N.Y.S.2d 286, 316 N.E.2d 719, cert. den. 419 U.S. 1055, 95 S.Ct. 637, 42 L.Ed.2d 652). In light of these settled precepts, County Court did not abuse its discretion in permitting the prosecution to impeach defendant with cross-examination concerning the acts underlying the previous petit larceny charges and to introduce, upon denial, a certificate of conviction of disorderly conduct.

We also conclude that County Court did not err in allowing the prosecutor to impeach defendant with evidence showing that she had sought and accepted social service checks and benefits to which she was not entitled. As noted above, acts of individual...