People v. Wolcott

• Decision Date: 23 May 1985
• Citation: 489 N.Y.S.2d 387,111 A.D.2d 513
• Parties: The PEOPLE of the State of New York, Respondent, v. Harold WOLCOTT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 387

489 N.Y.S.2d 387

111 A.D.2d 513

The PEOPLE of the State of New York, Respondent, v. Harold WOLCOTT, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 23, 1985.

Scott J. Learned, Elmira, for appellant.

James T. Hayden, Chemung County Dist. Atty., Elmira, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

WEISS, Justice.

Appeals from a judgment of the County Court of Chemung County, rendered January 28, 1983, upon verdicts convicting defendant of the crimes of sodomy in the first degree (four counts), sodomy in the second degree (two counts) and sexual abuse in the first degree (two counts).

Defendant was charged in two separate indictments with sodomy in the first degree (four counts), sodomy in the second degree (two counts) and sexual abuse in the first degree (two counts) as a result of incidents involving his two granddaughters in December 1980 and on February 27, 1982. Both victims were under the age of 14 at the time of these occurrences. After a jury trial, defendant was convicted as charged and received concurrent prison sentences as a second felony offender ranging from 3 1/2 to 7 years to 12 1/2 to 25 years.

On this appeal, defendant maintains that he was denied a fair trial because the prosecutor bolstered the testimony of several key witnesses, inquired into whether defendant raised his alibi defense when first arrested, forced defendant to characterize prosecution witnesses as liars, and provided rebuttal testimony without a proper foundation. Defendant further characterizes the trial court's jury charge as inadequate and claims that he received ineffective assistance of counsel.

Initially, we note that defendant neither registered any objection to the claimed improprieties nor excepted to the trial court's charge. Thus, the issues were not preserved as questions of law for appellate review (see CPL 470.05). Nor, for the reasons which follow, are we persuaded that defendant was deprived of a fair trial requiring us to invoke our power to reverse as a matter of discretion in the interest of justice (see CPL 470.15 People v. Smith, 103 A.D.2d 859, 477 N.Y.S.2d 917; People v. Griffin, 100 A.D.2d 659, 660, 473 N.Y.S.2d 851).

While we recognize that it was error to admit the testimony of two police officers expressly bolstering the testimony of both victims and other family members, the resulting error was essentially harmless given the strength of the People's case (see People v. Johnson, 57 N.Y.2d 969, 970, 457 N.Y.S.2d 230, 443 N.E.2d 478; People v. Allsbrook, 105 A.D.2d 467, 480 N.Y.S.2d 787, revg. on rearg. 103 A.D.2d 983, 479 N.Y.S.2d 827; see also People v. Irving 107 A.D.2d 944, 484 N.Y.S.2d 354). This is not an instance where the testimony of the only prosecution witness has been improperly bolstered (cf. People v. Williams, 62 A.D.2d 1026, 403 N.Y.S.2d 548). Here, since both victims and their mother explicitly testified to defendant's transgressions, we cannot perceive a significant probability that the jury would have acquitted defendant absent the improper bolstering testimony (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Next, we find no merit to the contention that impermissible use was made of defendant's postarrest silence in violation of the principles enunciated in People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933). While it is clear that the use of defendant's postarrest silence even for impeachment purposes may violate due process and the privilege against self-incrimination, not every use of such silence is precluded, only those which are fundamentally unfair (People v. Savage, 50 N.Y.2d 673, 680, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475; see People v. Hunyadi, 96 A.D.2d 647, 466 N.Y.S.2d 512). Here, the record shows that upon cross-examination of the arresting officer, defense counsel inquired whether defendant made any statements at the time of the arrest. The officer responded, "He denied that he had anything to do with it." On rebuttal, the prosecutor then inquired as to whether defendant claimed an alibi. As the foregoing illustrates, this is not an instance where defendant chose to remain silent upon arrest (see People v. Davis, 92 A.D.2d 177, 186-188, 460 N.Y.S.2d 289, affd. 61 N.Y.2d 202, 473 N.Y.S.2d 146, 461 N.E.2d 283). Indeed, defense counsel opened the door to what conversations ensued at that time. In this context, the prosecutor's redirect was not fundamentally unfair (see People v. Savage, supra, 50 N.Y.2d p. 681, 431 N.Y.S.2d 382, 409 N.E.2d 858; see also United States v. Conlin, 551 F.2d 534, 537, cert. denied 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 People v. Mayers, 100 A.D.2d 558, 473 N.Y.S.2d 263).

Defendant's remaining contentions are also unavailing. While we clearly do not sanction the prosecutor's conduct in attempting to have defendant characterize the People's witnesses as liars, taken in context, we cannot conclude that the brief interchange in which these questions were posed served to deprive defendant of a fair trial, particularly in the absence of an objection (see People v. McCormick, 100 A.D.2d 723, 473 N.Y.S.2d 622; ...