People v. Rodriguez

• Decision Date: 02 December 1975
• Citation: 341 N.E.2d 231,38 N.Y.2d 95,378 N.Y.S.2d 665
• Parties: , 341 N.E.2d 231 The PEOPLE of the State of New York, Respondent, v. Victor RODRIGUEZ, also known as Victor De Jesus, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 665

378 N.Y.S.2d 665

38 N.Y.2d 95, 341 N.E.2d 231

The PEOPLE of the State of New York, Respondent, v. Victor RODRIGUEZ, also known as Victor De Jesus, Appellant.

Court of Appeals of New York.

Dec. 2, 1975.

Arthur T. Cambouris and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (Jeffrey Speiser, Brooklyn, of counsel), for respondent.

FUCHSBERG, Judge.

Defendant was convicted, after a jury trial, of the crimes of possession of a weapon as a felony (Penal Law, § 265.05, subd. 3, renumbered by L.1974, ch. 1041 as § 265.01, subd. (1) and § 265.02, subd. (1)) and criminal possession of a dangerous drug in the sixth degree (former Penal Law, § 220.05). The Appellate Division unanimously affirmed. Defendant, on this appeal to us, argues that the Trial Judge committed reversible errors, both by instructing the jury that it could consider defendant's failure to call his wife, an eyewitness to the events at issue, as a witness and in ealier highlighting comments on that fact.

We conclude that there was no error.

A summary of the evidence is helpful to an understanding of the issue. On August 27, 1971, three narcotics officers of the New York City Police Department, preparatory to the execution of a warrant authorizing them to conduct a search of defendant's apartment, were waiting in front of the house in which it was located, when they saw defendant's car pull up to the curb. The officers spoke to the driver, who was not the defendant, and two of the officers accompanied him to the apartment, while the third one, Officer McManus, stationed himself in the rear yard, from which he could observe the windows of the apartment. Within minutes, McManus saw one of the windows open and a paper bag thrown out. He found it contained durgs and a .38 calibre revolver. He quickly ran into the building, where he found his fellow officers still in the hallway outside the apartment door. As McManus arrived, the defendant opened the door and was placed under arrest. His wife and a family friend, Onida Orengo were in the apartment at the time.

At the trial, Rodriguez' defense was built around the claim that he was the victim of a 'frame-up' and that the officers had stolen $800 from him after entering the apartment on the pretext that they were investigating a hit-and-run accident. He testified that the contraband McManus had retrieved was not his and denied throwing it out the window.

As defendant was about to leave the stand following the completion of his cross-examination, the Trial Judge, in the presence of the jury, asked him whether his wife was present at the time of the incident and whether she was going to testify. He replied that she was present but would not be called as a witness. The next morning, out of the presence of the jury, defense counsel took exception to the Judge's remarks, advising the court that the defendant did not want his wife to testify because she was nervous, having been recently arrested, and would make a poor witness.

Subsequently, upon completion of the main charge, defense counsel, in the presence of the jury, requested a supplemental charge that 'the defendant (need) not take the stand, nor need he bring witnesses in his behalf.' The court replied: 'The absence of a witness--you want to take exception to what I say, you may. The jury may consider the absence of any witness if the witness did have evidence that may have shed light upon material aspects of this case and provided that that witness was in control of the litigant failing to call that witness.'

Ordinarily, a court may not comment upon a defendant's failure to testify or otherwise to come forward with evidence, but, once a defendant does so, his failure to call an available witness who is under defendant's control and has information material to the case may be brought to the jurors' attention for their consideration (Peope v. Leonardo, 199 N.Y. 432, 436, 92 N.E. 1060, 1061; People v. Hovey, 92 N.Y. 554, 559; 2 Wigmore, Evidence (3d ed.), §§ 285--291; 1 Wharton's, Criminal Evidence (13th ed., 1972), §§ 148--149, pp. 249--254; 4 Bender's N.Y.Evidence, § 245.03, subd. (8); McCormick, Evidence (2d ed., 1972), § 272, p. 656 Et seq.; but see People v. Conklin, 39 A.D.2d 160, 162, 332 N.Y.S.2d 826, 827.) ¹

Though the rule ordinarily does not apply when a witness is equally accessible to both parties (Richardson, Evidence (10th ed.), § 92), it may come into play even then if it appears that such a witness is favorable to one party and hostile to the other. (See discussion in McCormick, Evidence (2d ed., 1972), § 272, pp. 657--658; 2 Wigmore, Evidence (3d ed.), § 288.)

In both instances, respected authorities make clear that, so long as comment or instruction on the absence of the witness is unaccompained by one on the accused's personal failure to testify, no constitutional right is infringed (Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (semble); United States v. Fox, 2 Cir., 97 F.2d 913, 915 (L. Hand, J.); 8 Wigmore, Evidence (McNaughton rev., 1961), § 2273; see also, discussion in 4 Bender's, N.Y.Evidence § 242.14, subd. (1), par. (c); Cook, Constitutional Rights of the Accused--Trial Rights, § 62, pp. 240--242, and cases cited therein).

The mere fact that an uncalled witness is the spouse of the accused does not alter the situation. For it has been held, in criminal cases (People v. Hovey, 92 N.Y. 554, Supra, cited with approval in Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, Supra; People v. O'Dell, 36 A.D.2d 774, 318 N.Y.S.2d 908; People v. Bolster, 24 A.D.2d 774, 263 N.Y.S.2d 574) as in civil cases (see Deutschmann v. Third Ave. R.R. Co., 87 App.Div. 503, 515), that, absent a privileged communication, jury may consider the failure of a defendant to call his spouse. The presence of a third party, Ms. Orengo, at the events to which the wife here was in a position to testify, rendered the privilege inapplicable here (People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582; People v. Melski, 10 N.Y.2d 78, 217 N.Y.S.2d 65, 176 N.E.2d 81; see, also, cases collected in Presumption--Failure to Call Witness, Ann., 5 A.L.R.2d 893, 930; 1 Wharton's Criminal Evidence (13th ed.), Op. cit., § 149, p. 253).

The marital privilege historically has developed from the common-law rule which completely disqualified a wife from testifying for or against her husband. She was held to be incompetent to do so for two reasons: first, spouses were considered as an entity and, therefore, deemed to be interested in the outcome of the litigation in which the other spouse was a direct party: second, it was considered necessary to avoid subjecting domestic tranquility to the disturbance which was thought to flow from the giving of testimony by one spouse against the other. (1 Coke, Commentary upon Littleton (19th ed., 1832), § 6b; 2 Kent's Commentaries 179; see Bentley v. Cooke, 3 Doug. (K.B.Reports) 422.)

The first universal exception to that rule was the application of the doctrine of 'necessity', permitting a spouse to testify where a crime was committed by one spouse against the other. (8 Wigmore, Evidence (McNaughton rev., 1961), Op. cit., § 2239.) From this point on, the majority of jurisdictions (Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn.L.Rev. 675; see statutes collected in Note, 38 Va.L.Rev. 359), including New York (CPLR 4512; former Penal Law, § 2445; People v. Ressler, 17 N.Y.2d 174, 269 N.Y.S.2d 414, 216 N.E.2d 582, Supra; People v. Melski, 10 N.Y.2d 78, 217 N.Y.S.2d 65, 176 N.E.2d 81, Supra), went on to abolish the common-law disqualification and substitute a privilege varying in application in differing jurisdictions (Ladd, Privileges, 1969 Law and Social Order 555, 558--559; Note, 56 Nw.U.L.Rev. 208; Note, 34 U.Chi.L.Rev. 196). ² In New York that privilege is triggered where the testimony concerns a 'confidential communication' 'which would not have been made but for the absolute confidence in, and induced by, the marital relationship.' (People v. Melski, supra, p. 80, 217 N.Y.S.2d p. 67, 176 N.E.2d p. 83; see also, People v. Dudley, 24 N.Y.2d 410, 413--414, 301 N.Y.S.2d 9, 11, 248 N.E.2d 860, 862; CPLR 4502, subd. (b); cf. People v. Scull, 37 N.Y.2d 833, 378 N.Y.S.2d 30, 340 N.E.2d 466.) However, as indicated above, the presence of a third party negates intent to make such a 'confidential communication' in the present case. For that reasin it is also unnecessary for us to reach the question as to whether comment may be made where a bona fide privilege does exist and is asserted to preclude reception of such testimony. ³

Further, this is not a case where a witness is a codefendant (People v. Slover, 232 N.Y. 264, 269--270, 133 N.E. 633, 635; but cf. United States v. Zane, 2 Cir., 495 F.2d 683, 689, cert. den. 419 U.S. 895, 95 S.Ct. 174, 42 L.Ed.2d 139 (codefendant had already entered a guilty plea; 'missing witness' charge held proper)). Nor was there here an assertion by or on behalf of the witness that he would invoke the Fifth Amendment and refuse to answer questions (Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536, cert. den. 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533). And, as already pointed out, since the defendant took the stand and presented affirmative proof in the person of Ms. Orengo, this certainly is not a case where an accused has chosen to stake his chances of acquittal on the prosecution's case alone. Thus, there not being present here either any constitutional or testimonial privilege, it follows that it was proper to give the supplementary charge.

It also cannot be said that the wife's testimony was trivial or cumulative. (People v. Brown, 34 N.Y.2d 658, 660, 355 N.Y.S.2d 579, 311 N.E.2d 650; State v. Davis, 73 Wash.2d 271, 438 P.2d 185; McCormick, Evidence (2d ed.), Op. cit., § 272; cf. People v. Valerius, 31 N.Y.2d 51, 55, 334 N.Y.S.2d 871, 872, 286 N.E.2d 254, 256.)...