People v. Stanard

Decision Date09 June 1977
Citation365 N.E.2d 857,396 N.Y.S.2d 825,42 N.Y.2d 74
Parties, 365 N.E.2d 857 The PEOPLE of the State of New York, Respondent, v. Robert STANARD, Appellant.
CourtNew York Court of Appeals Court of Appeals

Julia P. Heit, New York City, for appellant.

Mario Merola, Dist. Atty. (Billie Manning and Aley Alexander, New York City, of counsel), for respondent.

GABRIELLI, Judge.

The defendant stands convicted of the crime of perjury in the first degree (Penal Law, § 210.15) following his retrial on an indictment which arose from testimony which he gave to a Grand Jury of Bronx County investigating police corruption in the Seventh Division. The conviction upon his first trial was reversed because prejudicial and excessive background testimony on police corruption generally was improperly received in evidence (32 N.Y.2d 143, 344 N.Y.S.2d 331, 297 N.E.2d 77).

The Appellate Division has unanimously affirmed this second conviction (52 A.D.2d 1098, 384 N.Y.S.2d 713) and defendant advances several claims of error, but we are not persuaded that any of these claims warrant reversal, and we therefore affirm.

In June, 1968, the Grand Jury began an investigation of police corruption involving payments to police officials made by persons engaged in illegal policy and gambling activities, for the purpose of obtaining protection from arrest and prosecution. The investigation stemmed in part from information furnished by Patrolman Frank Serpico. The defendant, a New York City police officer at the time, was called as a witness and gave sworn testimony, under a grant of immunity, on two occasions in November, 1968. Among other matters, the defendant was queried about his attendance at a meeting with Patrolmen Andrew Taylor, James Paretti, William McAuliffe, and a known "policy" operator, Juan Carreras, at the Carreras residence, 1961 Lacombe Ave., Bronx, New York, on January 8, 1968. The People charge, inter alia, that the meeting was arranged by these officers for the purpose of assuring the continued collection of protection payments from Carreras. Defendant denied ever attending such a meeting and this denial was the basis for the first count of the indictment upon which he was convicted.

The first count of the indictment charged defendant with falsely denying that he attended the meeting at the home of Carreras for the purpose of collecting protection money, and he asserts that a crucial element of the charge is the illegal purpose of the meeting. The thrust of his argument is twofold. First, he contends that there is insufficient proof of the charge in the indictment to sustain his conviction and, secondly, he urges that the illegal purpose element is necessary to show that the false swearing was material to the Grand Jury proceeding. Since materiality is a necessary element of first degree perjury (Penal Law, § 210.15) he thus maintains that the absence of an illegal purpose, as claimed by him, renders the false swearing harmless. We reject these arguments.

The indictment charged the defendant with denying under oath that he entered the Carreras home to collect protection money "or for any purpose whatsoever". 1 Contrary to appellant's assertion, the indictme also charges defendant with denying being on the specified premises for any purpose. During the Grand Jury investigation the following colloquy occurred:

"Q. * * * Were you ever present in any location but more specifically in a location at 1761 LaCombe Avenue, County of the Bronx, in a basement at that address present at that address aside from yourself in that basement were Ptl. McAuliffe, Paretti, Taylor and Juan Carreras?

"A. I was never present with Mr. Carreras and the patrolmen that you named.

"Q. Therefore you deny being present at that location with those people?

"A. No; I don't.

"Q. At that location with those people?

"A. I deny ever being with those people, but it's possible that I was at the location.

"Q. Well, if you were never with those people how could you have been at that location with those people? The question is twofold.

"A. Well, it's a twofold answer. I would say I was never at that location with those people."

This and other Grand Jury testimony clearly demonstrates that defendant repeatedly denied being at the Carreras home with his fellow patrolmen, whether or not the purpose of the meeting was specified in the question. Juan Carreras testified that appellant attended the meeting and that protection payments were discussed along with certain operational problems of the "policy" business. Dolores Carreras corroborated the appellant's identity, his presence at her home, the date, the place of the meeting, and the presence of the other three officers. Thus, there was sufficient evidence to find defendant guilty.

Section 210.50 of the Penal Law requires that proof of falsity in a perjury prosecution "may not be established by the uncorroborated testimony of a single witness." The falsity of the statement made by appellant that he did not attend the meeting with his fellow officers was, as indicated, proven by the direct testimony of two witnesses and is thus sufficiently corroborated. Corroboration need not necessarily consist of direct evidence, however, but may be based on circumstantial evidence which furnishes partial proof of the falsity (People v. Sabella, 35 N.Y.2d 158, 168, ---, 359 N.Y.S.2d 100, 108, 316 N.E.2d 569, 575). Thus assuming arguendo that corroborative proof of the illegal nature of the meeting is necessary in this case, as defendant unsuccessfully insists, we believe it has nonetheless been established by adequate circumstantial evidence. Dolores Carreras testified that she had personally made protection payments to Officers McAuliffe and Paretti. These payments were usually made on the first day of each month but the Carrerases were unable to make the regular payment in January, 1968. On January 8 Officer McAuliffe telephoned the Carreras residence and Dolores told him that she and her husband had lost all their money in the policy business and would be unable to make any payment or continue their operations. The meeting at the Carreras home, attended by McAuliffe, Paretti and appellant, followed shortly after the officer's telephone call on that same day. These facts, coupled with her identity testimony, permit the compelling inference and serve as sufficient proof that the purpose of the meeting was to discuss illegal payments. This independent evidence offered by Dolores Carreras fairly "tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the (witness) is telling the truth" (People v. Sabella, supra, p. 169, 359 N.Y.S.2d p. 109, 316 N.E.2d p. 575, quoting People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752, 753) and is, therefore, sufficient circumstantial evidence to satisfy the corroboration requirement as to the illegal nature of the meeting (People v. Sabella, supra; People v. Doody, 172 N.Y. 165, 172, 64 N.E. 807, 808), and the conviction will not be overturned.

Perjury in the first degree also requires a false swearing which is "material to the action, proceeding or matter in which it is made" (Penal Law, § 210.15). The appellant, as noted, may not prevail on his claim that there was an absence of proof of an illegal purpose for the meeting, and that his false denial of ever attending the meeting is thus immaterial to a Grand Jury investigation of police corruption. Materiality is an essential element of the crime of perjury in the first degree (see People v. Teal, 196 N.Y. 372, 376, 89 N.E. 1086, 1087; People ex rel. Hegeman v. Corrigan,195 N.Y. 1, 9, 87 N.E. 792, 794; People v. Courtney, 94 N.Y. 490, 494; Wood v. People, 59 N.Y. 117, 121-122; cf. People v. Ianniello, 36 N.Y.2d 137, 143, 365 N.Y.S.2d 821, 825, 325 N.E.2d 146, 148); false swearing, to be material, must reflect on the matter under consideration during the action or proceeding in which it is made. As stated in Wood v. People (supra, p. 123): "It is not necessary that the false statements should tend directly to prove the issue in order to sustain an indictment. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury." Under the facts in this case the appellant falsely denied, during a Grand Jury investigation into police corruption, that he met surreptitiously with three other police officers and a known gambler in the basement of the home of the gambler. Although evidence of the meeting would not by itself prove police corruption, the occurrence of the meeting, along with the other evidence in the case tends to support the existence of the corrupt nature and purpose of the meeting. Under these circumstances the false swearing must be deemed material, whether or not the illegal purpose is included as part of the charge.

Patrolman Serpico 2 had testified extensively during the first trial and it was his testimony of unrelated, illegal acts which resulted in prejudice requiring reversal (32 N.Y.2d 143, 145-146, 344 N.Y.S.2d 331, 333, 297 N.E.2d 77, 78). Before the start of the second trial a hearing was held to determine whether the People had made a diligent, good faith effort to locate Patrolman Serpico, in order that any relevant portions of his testimony at the first trial might be admitted into evidence on the ground that he was now unavailable. From the totality of all the evidence the hearing court concluded that diligent efforts had been made by the District Attorney and the police, who were unable to locate Serpico and thus relevant parts of his prior testimony might be introduced into evidence. However, the District Attorney stated that the People had no intention of bringing up the name of Frank Serpico but sought to reserve the right to use his testimony only for cross-examination in the event that the defendant took the stand. Thus, the testimony was admissible as limited by the...

To continue reading

Request your trial
63 cases
  • Cotto v. Fischer
    • United States
    • U.S. District Court — Southern District of New York
    • August 23, 2012
    ...humiliate or endanger the witness.'" People v. Waver, 3 N.Y.3d 748, 750, 788 N.Y.S.2d 630, 631 (2004) (quoting People v. Stanard, 42 N.Y.2d 74, 84, 396 N.Y.S.2d 825, 831. (1977)). The burden then shifts to the defendant to "'demonstrate the materiality of the requested information to the is......
  • Alvarado v. Superior Court
    • United States
    • California Supreme Court
    • August 17, 2000
    ... ... The SUPERIOR COURT of Los Angeles County, Respondent; ... The People, Real Party in Interest ... Jorge Lopez, Petitioner, ... The Superior Court of Los Angeles County, Respondent; ... The People, Real Party in ... State (1980) 96 Nev. 555 [612 P.2d 686, 687-688] ; State v. Vandebogart (1994) 139 N.H. 145 [652 A.2d 671, 681] ; People v. Stanard (1977) 42 N.Y.2d 74 [396 N.Y.S.2d 825, 830-832, 365 N.E.2d 857, 861-864] ; State v. McNeil (1990) 99 N.C.App. 235 [393 S.E.2d 123, 128-129] ; ... ...
  • United States v. Ramos-Cruz
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 18, 2012
    ...United States v. Rangel, 534 F.2d 147, 148 (9th Cir.1976); United States v. Palermo, 410 F.2d 468, 472 (7th Cir.1969); People v. Stanard, 42 N.Y.2d 74, 396 N.Y.S.2d 825, 365 N.E.2d 857, 863 (1977). But at least one of these courts has indicated trepidation when it is the witness's true name......
  • People v. Lumpkins
    • United States
    • New York Supreme Court
    • October 19, 1988
    ...Stoppers. Perhaps that is why the courts applying the Brady rule have spoken of "exculpatory information" (People v. Stanard, 42 N.Y.2d 74, 85, 396 N.Y.S.2d 825, 365 N.E.2d 857; People v. Robinson, supra)i); "exculpatory material" (United States v. Agurs, supra; People v. Simmons, 36 N.Y.2d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT