People v. Stewart

Decision Date14 March 1983
Citation459 N.Y.S.2d 853,92 A.D.2d 226
PartiesThe PEOPLE, etc., Respondent, v. Ronnie STEWART, Appellant.
CourtNew York Supreme Court — Appellate Division

William E. Hellerstein, New York City (Jill F. Moscowitz, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Naomi Werne and Richard G. Denzer of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, NIEHOFF and BOYERS, JJ.

PER CURIAM.

On October 29, 1978, while walking home from a basketball game at about 6:15 P.M., Linda Bozier was robbed in Queens, New York. A man, identified at trial as the defendant, approached her, held a gun to her head, and forcibly took from her a tape recorder that she was carrying. A few days later Miss Bozier saw defendant on the street, recognized him as the perpetrator of the crime and so informed the Lefrak City security patrol, who placed defendant under arrest.

The arresting officer, Carl Zayas, testified that after the arrest he searched defendant and found $101. He further testified that at a subsequent court appearance defendant approached him in a corridor of the courthouse and informed him that he had spoken with Linda Bozier and had offered to return her radio or to pay her $200. Miss Bozier allegedly responded by telling defendant that he "was crazy".

Through his testimony and the testimony of two others, Thomas Turner and Brian Jordan, defendant presented an alibi defense. The three of them were allegedly together during the afternoon and evening of October 29, 1978. Sometime before 5:00 P.M. they went to the home of Michael Locke, the owner of a frankfurther stand, for whom all three worked. For the next several hours they were in the basement of Locke's building, cleaning Locke's vending wagon. When they finished, at about 7:00 P.M., they went upstairs to Locke's apartment, where they remained until 11:00 P.M.

As the above recitation illustrates, this is a case which, in effect, could have tried itself. The facts were uncomplicated, involving two disparate stories for the jury's resolution. Unfortunately, the trial was plagued by what we consider outrageous prosecutorial misconduct, depriving defendant of a fair trial and requiring reversal.

The first instance of impropriety occurred during presentation of the People's case. After Linda Bozier had testified that she had not heard defendant speak since the night of the robbery, the prosecutrix, despite repeated objections by defense counsel and admonitions from the court, attempted to elicit testimony from Linda and a police officer to the effect that defendant had called the Bozier home and had spoken with Linda's mother. These witnesses were obviously incompetent for this purpose. When Linda's mother, Catherine Bozier took the stand, the prosecutrix asked whether she had ever spoken on the telephone with defendant. Repeatedly, despite sustained objections, the prosecutrix asked the same question in various forms, without ever attempting to establish whether Catherine Bozier could identify defendant's voice. Without such a foundation, these questions were improper (see, generally, Fisch, New York Evidence [2d ed.], § 17). While the prosecutrix's questions may have been occasioned by ignorance of the rules of evidence, we must be mindful of their potentially prejudicial impact. That defendant allegedly communicated with the victim's mother would tend to support Officer Zayas' testimony that defendant informed him that he had offered to give the victim her radio back.

The prosecutrix's cross-examination of the defense witnesses can hardly be excused as resulting from ignorance of the law. Over and over again, in flagrant disregard of sustained objections and the court's admonitions, the prosecutrix asked defendant and his witnesses whether they took drugs, whether they were members of a gang known as "Righteous" and whether they sold drugs to little children. The following, taken from the record of defendant's testimony, is illustrative:

"Q [prosecutrix]: Mr. Stewart, do you know whether Thomas Turner uses drugs?

"MR. MARSILLI [defense counsel]: Objection.

"THE COURT: Sustained.

"Q: Did you ever see him possess marijuana?

"THE COURT: Sustained.

"Q: Do you know what the 'Righteous Group' is?

"MR. MARSILLI: Objection.

"THE COURT: Sustained.

"Q: Isn't it a fact that aside from your selling the hot dogs from the stand, you dispense marijuana to children in Lefrak City?

"MR. MARSILLI: Objection.

"THE COURT: Sustained."

The same sort of questions were previously asked of defendant's witnesses. The prosecutrix was apparently of the view that the sustained objections to these questions were of no moment, and that she could ignore the court's rulings by asking virtually the same questions over again of different witnesses. While objections to these questions were sustained, the very asking of them could possibly have led to prejudice. Such conduct borders on the contemptuous (Judiciary Law, § 750).

It is, of course, true that a witness may be impeached "by inquiry into prior acts of misconduct which tend to discredit the witness' character and show him or her to be unworthy of belief" (People v. Hunter, 88 A.D.2d 321, 322, 453 N.Y.S.2d 212). Such questions are proper where the alleged prior acts involved moral turpitude, and they are asked in good faith, with a reasonable basis in fact (People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Hunter, supra ). However, matters which have little, if any, relation to credibility but which possess a significant potential for prejudice should be avoided (People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413).

Whether defendant or his friends may, at times, smoke marijuana is hardly a notable fact in this case, absent evidence that they were under the influence of that drug on the date of the robbery or during their testimony (see People v. Freeland, 36 N.Y.2d 518, 369 N.Y.S.2d 649, 330 N.E.2d 611; cf. People v. Duffy, 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804). Nor are questions as to gang membership proper, absent a connection between such membership and the crime or crimes for which the defendant is being tried (People v. Torres, 72 A.D.2d 754, 421 N.Y.S.2d 275). Selling drugs to children, on the other hand, is a serious matter, properly a subject for impeachment purposes, provided that there is a good faith basis. In this case the record reveals none. The fact that Turner apparently had once been arrested for loitering for the purpose of using drugs, and that Jordan had previously been arrested for robbery, upon which the People rely, do not constitute an adequate foundation.

The prosecutrix also ignored the court...

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