People v. Stanard

• Decision Date: 25 April 1973
• Citation: 297 N.E.2d 77,344 N.Y.S.2d 331,32 N.Y.2d 143
• Parties: , 297 N.E.2d 77 The PEOPLE of the State of New York, Respondent, v. Robert STANARD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 331

344 N.Y.S.2d 331

32 N.Y.2d 143, 297 N.E.2d 77

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

Court of Appeals of New York.

April 25, 1973.

Julia P. Heit, William E. Hellerstein, and Robert Kasanof, New York City, for appellant.

Mario Merola, Dist. Atty. (Michael F. Youdovin, New York City, of counsel), for respondent.

GABRIELLI, Judge.

The defendant, a New York City policeman, has been convicted of five counts of perjury and, by a divided court, the convictions have been affirmed (38 A.D.2d 522, 326 N.Y.S.2d 941). The main question on this appeal is whether testimony, otherwise inadmissible, was properly received when offered by the People solely for the purpose of supplying allegedly necessary background material to make the proof of the crimes charged intelligible to the jury.

The defendant was charged with having lied before a Grand Jury which was investigating police corruption in the Seventh Division. The charges stemmed from his denial of having gone to the home of Juan and Dolores Carreras to collect protection money for the Carreras' policy business, and from his further denial that on another occasion he, together with three other officers, met with Carreras and two others for the purpose of discussing the method by which Carreras would be allowed to continue his policy business. During his opening the prosecutor, over objection, told the jury that he would 'paint a picture' for them depicting '(t)he corruption of almost an entire unit of police officers' among whom was the defendant who 'used his power * * * to line his own pockets with money.'

Called by the prosecution, Inspector Sachson testified that as a result of information furnished by Patrolman Serpico, an investigation was launched which included corrupt activities of at least five other patrolmen. Then Serpico, who had been assigned duties with some of these men, testified at great length how the police contacted a number of gamblers, set the prices for protection and made collections for permitting these operations to continue. While Serpico's testimony, consisting of some 76 pages of the record on direct, embroiled the defendant and other officers in corruption involving a number of other cases or instances, based, not on an account of corruption in general, but on specific transactions with specific gamblers at specific times and places, it is critical and important to note that none of this testimony involved defendant's two contacts with Carreras and the others, concerning which he was charged with giving false testimony before the Grand Jury; and the record is replete with instances where objections were made to the admission of this testimony.

The Trial Judge permitted the reception of all this testimony on the theory that it served as the background of the extorsive scheme which allegedly functioned under the protection of the defendant and others in the Seventh Division.

We are in accord with the doctrine that, in cases of this nature, in order to make the subject matter of a defendant's perjury intelligible to the jury, some general background evidence of the nature and structure of the scheme is permissible (People v. Doody, 172 N.Y. 165, 64 N.E. 807) (cf. People v. Atkins, 7 A.D.2d 393, 183 N.Y.S.2d 336, and People v. Gleason, 285 App.Div. 278, 136 N.Y.S.2d 220). At this point, it is well to point out that this is not a conspiracy case wherein it is 'within the discretion of the trial court to admit evidence which even remotely tended to establish the conspiracy charged' (Devoe v. United States, 8 Cir., 103 F.2d 584, 588--589, cert. den., 308 U.S. 571, 60 S.Ct. 84, 84 L.Ed. 479); it is a case wherein a common plan or scheme exception is permitted as in People v. Duffy, 212 N.Y. 57, 105 N.E. 839 and People v. Molineux, 168 N.Y. 264, 61 N.E. 286.

Despite our agreement with the principle that some background testimony is permissible in cases of this nature, we emphasize that, as in People v. Gleason, 285 App.Div. 278, 281--282, 136 N.Y.S.2d 220, 224 Supra, 'the introduction of such (background) evidence must be carefully monitored by the trial judge, as it is an accommodation that the general rules of evidence must at times make to the exigencies of the particular instance. * * * Every precaution must be taken lest it spill over its barriers and distort the jury's contemplation of the determinative and critical evidence.' It appears, however, that Serpico's testimony, in particular, may have prejudiced the jury improperly, and since it exceeded permissible discretionary bounds, this testimony was not admissible 'to give the jury an intelligent understanding of the whole of the evidence' (Bedell v. United States, 8 Cir. 78 F.2d 358, 364; see, also, People v. Robinson, 273 N.Y. 438, 445--446, 8 N.E.2d 25, 28--29; People v. Atkins, 7 A.D.2d 393, 394, 183 N.Y.S.2d 336, 337, Supra; People v. Gleason, Supra). And yet another inherent prejudice in the impermissible receipt of this testimony is the use to which it was put by the District Attorney when, in his summation, he stated 'let your verdict speak for you, and let your verdict speak out, and you tell Robert Standard (the defendant), and you tell Carmello Zumatto and Patrolman Rodrigues and Patrolman Sola (concerning whom Serpico had testified), and every single one of them, you tell them with your verdict, that 'You can't do it '* * * ". Here, the sole charges were perjury against Stanard; not any other nefarious activities involving him with the other patrolmen, for which the District Attorney was now seeking vengeance at the hands of the jury.

Inspector Sachson's general review of events leading to the Grand Jury investigation...