People v. Wood
| Decision Date | 28 January 1985 |
| Parties | The PEOPLE, etc., Respondent, v. Bruce WOOD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Samuel Collins, Poughkeepsie, for appellant.
William V. Grady, Dist. Atty., Poughkeepsie (Joan H. McCarthy, Asst. Dist. Atty., Poughkeepsie, of counsel), for respondent.
Before TITONE, J.P., and THOMPSON, BRACKEN, O'CONNOR and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Dutchess County, rendered November 9, 1979, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence
Judgment affirmed.
At defendant's trial, a key defense witness chose to affirm, rather than swear, to the truth of his testimony. During cross-examination, the prosecutor sought to discredit the witness by inquiring about his refusal to take an oath and his belief in God. Although we do not condone this improper attempt to impeach the witness by inquiry into his religious beliefs or lack thereof (see, e.g., Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840, 138 N.E.2d 221; Brink v. Stratton, 176 N.Y. 150, 68 N.E. 148; People v. Thomas, 91 A.D.2d 857, 458 N.Y.S.2d 383; Richardson, Evidence § 387), we conclude that the trial court dissipated any prejudice resulting from the prosecutor's misconduct by delivering the following instruction to the jury:
We disagree with our dissenting colleague Justice TITONE that impeachment by inquiry into a witness' religious beliefs or lack thereof is per se reversible error in this State. The New York cases relied upon in his dissent are distinguishable and simply do not preclude us from finding that such error was harmless where, as here, the improper questioning was of relatively short duration, the trial court delivered satisfactory curative instructions, the evidence of guilt was overwhelming and there was no reasonable possibility that the error might have contributed to defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
For example, in Brink v. Stratton, 176 N.Y. 150, 68 N.E. 148, supra, a party defendant (not, as in the case at bar, a mere witness) was asked on cross-examination whether he believed in the existence of a supreme being who would punish false swearing, and the trial court compounded this error by subsequently charging: "It is for you to say how far you are to attach credibility to his statements, how far his testimony is impeached as to what he has said here in regard to his religious beliefs" (Brink v. Stratton, supra, p. 156, 68 N.E. 148). In sharp contrast, the instruction delivered by the trial court in the present case served to dissipate any prejudice from the prosecutor's improper questions by correctly explaining, in unequivocal terms, that an affirmation is legally equivalent to an oath (see CPLR 2309, subd. ), and that the testimony of a witness who affirms, rather than swears, to the truth of his testimony is not to be considered any differently.
We also note that in Brink v. Stratton (supra), the reversal was based only partially upon the ground at issue here. In that case, the Court of Appeals unanimously agreed that the trial court had erred in not permitting a party to testify as to the hostility of certain witnesses called to impeach him. Five of the Judges agreed that, as an additional ground for reversal, the cross-examination regarding religious beliefs was error as well. However, we discern no language in Brink which would suggest that such an error, standing alone, requires reversal in every instance.
The other New York case relied on in Justice TITONE's dissent is Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840, 138 N.E.2d 221, supra, a libel action based on alleged defamatory statements accusing plaintiffs of having Communist affiliations. Although defendants conceded at trial that plaintiffs were not Communists, the trial court permitted plaintiffs to adduce, as evidence-in-chief, proof that they were faithful and devoted to their religious beliefs and prominent and active in their church. The Court of Appeals held that such evidence was admissible under these circumstances to prove the damage occasioned by the defamatory statements; however, the court cautioned that in "all but the rarest of cases, the religious faith and observances of a party are matters entirely irrelevant to the issue presented, and their injection into a trial is improper and constitutes reversible error" (Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840, 138 N.E.2d 221, supra; emphasis added). Clearly, the instant case is not governed by the foregoing principle, inasmuch as it involved the impeachment of a witness by inquiry into his religious beliefs, and not the question of whether evidence of a party's religious beliefs was relevant to an issue in the case, and therefore admissible as evidence-in-chief. Thus, we cannot agree that Toomey set down a per se rule requiring reversal in the case at bar. We conclude, rather, that under the present circumstances, the prosecutor's misconduct was not sufficient in and of itself to warrant reversal (see, e.g., People v. Thomas, 91 A.D.2d 857, 458 N.Y.S.2d 383, supra; Albarran v. City of New York, 80 A.D.2d 784, 437 N.Y.S.2d 4).
We have considered defendant's remaining contentions and find them to be without merit.
TITONE, Justice Presiding, dissents and votes to reverse the judgment of conviction and order a new trial, with the following memorandum:
Defendant appeals from a judgment of the County Court, Dutchess County, which convicted him of murder in the second degree in connection with the homicide of a young woman he had met at a bar. At trial, defendant did not dispute that he caused the young woman's death. Rather, defense counsel claimed that the defendant did not know "why he did what he did do" and the primary issue centered on defendant's sanity and intent at the time of the crime.
To that end, defense counsel called a line of witnesses in an effort to establish, among other things, that he was suffering from "Post-Traumatic Stress Disorder" (also referred to as "Vietnam Syndrome"). Key in this regard was the testimony of Dr. Stephen Teich, the only psychiatric testimony elicited by the defendant. According to Dr. Teich, defendant was suffering from a mental disease or defect at the time of the incident and lacked substantial capacity to know or appreciate the nature and consequences of his conduct or that such conduct was wrong.
Dr. Teich chose to affirm, rather than swear to his testimony, as was his right (CPL 60.10; CPLR 2309). Near the end of the People's cross-examination, the following occurred:
Objection. What does that have to do with anything?
Defendant requested a mistrial which was denied, the court advising counsel he could bring "it up in my charge", and, at that time, the court did explain that the affirmation was essentially equivalent to an oath.
In my view, the prosecutor's cross-examination constituted gross misconduct which was not cured by the court's charge purporting to define an affirmation. The motion for a mistrial should have been granted.
Our State Constitution provides that "no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief" (N.Y. Const., art. I, § 3). This constitutional provision, separate and apart from the First Amendment to the Federal Constitution, constitutes a limitation on the power of the State government itself, in order to protect freedom of religious thought and to guarantee separation of church and state (see Holland v. Alcock, 108 N.Y. 312, 16 N.E. 305; Matter of Kempf, 252 App.Div. 28, 297 N.Y.S. 307, affd. 278 N.Y. 613, 16 N.E.2d 123). The...
To continue reading
Request your trial
- People v. Wood
-
People v. Wood
...nature and consequences of his conduct, or that such conduct was wrong. The conviction was affirmed by this court ( see, People v. Wood, 107 A.D.2d 830, 484 N.Y.S.2d 671), but reversed by the Court of Appeals because of prosecutorial misconduct during cross-examination of the defendant's ex......
-
People v. Valdivia
...reference in summation to the affirmation, and the overwhelming proof of guilt, we hold the error to be harmless (see People v. Wood, 107 A.D.2d 830, 484 N.Y.S.2d 671 Similarly, in his summation the prosecutor referred to the "man untruths" allegedly spoken by defendant and characterized de......