Robert S., Matter of

• Decision Date: 26 February 1981
• Citation: 438 N.Y.S.2d 509,52 N.Y.2d 1046,420 N.E.2d 390
• Parties: , 420 N.E.2d 390 In the Matter of ROBERT S. (Anonymous), a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 509

438 N.Y.S.2d 509

52 N.Y.2d 1046, 420 N.E.2d 390

In the Matter of ROBERT S. (Anonymous), a Person Alleged to be a Juvenile Delinquent, Appellant.

Court of Appeals of New York.

Feb. 26, 1981.

Wendy Sue Lauring, William E. Hellerstein, New York City, and Charles Schinitsky, Brooklyn, for appellant

Allen G. Schwartz, Corporation Counsel, New York City (Alexander J. Wulwick and Carolyn E. Demarest, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 71 A.D.2d 657, 419 N.Y.S.2d 4, should be affirmed, without costs.

At the fact-finding hearing in Family Court, appellant's defense to the charge that he had committed an act which if committed by an adult would constitute the crime of murder in the second degree was justification by way of self-defense (Penal Law, § 35.15, subd. 2, par. It was undisputed that the victim, William Kirwan, had initiated an attack on appellant and that appellant had inflicted the stab wounds causing Kirwan's death.

Appellant offered evidence as to Kirwan's propensity for violent and aggressive behavior, especially when intoxicated, including proof of specific criminal acts, as to his history of psychiatric problems of drug abuse and intoxication, and as to his history of threats and attacks on other people. Defense counsel contended that the tendered proof would lend credence to defense testimony as to Kirwan's behavior on the occasion in question. The court ruled that it would allow general reputation evidence to show that Kirwan was quarrelsome or vindictive, testimony as to Kirwan's behavior toward defendant, and evidence that he was intoxicated or under the influence of drugs at the time of the assault, but would exclude any testimony relative to Kirwan's general propensities for violence except to the extent that the latter might bear on appellant's state of mind. Appellant claims that this was erroneously restrictive.

Only five years ago we were importuned, as we are again in the present case, at least in part on the basis of less restrictive holdings in other jurisdictions, to discard the rule recognized in People v. Rodawald, 177 N.Y. 408, 70 N.E. 1, and in self-defense cases to admit proof of specific acts of violence committed by the deceased victim for the purpose of showing that he was the aggressor. We then unanimously determined to modify the prior rule of total exclusion only to the extent, however, of holding that a trial court in the exercise of its sound discretion might "permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim's prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime of which the defendant stands charged", if accompanied by appropriate precautionary instructions (People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841). We rejected the invitation to abandon the Rodawald rule which the dissenter would now accept. Nothing is now newly advanced by the parties or the dissenter which would warrant enlargement of the modification so recently formulated. Here, in essence, the emphasis on the particular acts of the victim as tending to show a general propensity for violence is a familiar attempt to expand inferences drawn from previous instances of behavior into proof of the actual conduct of the defendant in the circumstances of the particular crime.

On the other issue tendered by appellant it suffices to observe that we find no abuse of discretion as a matter of law in the limitations imposed by the trial court on defense counsel's cross-examination of Robert Sweeney, the People's final witness, particularly in view of the failure of defense counsel, when the trial court sustained the general objections of the prosecutor, to specify or clarify the purpose for which the desired cross-examination was sought or the basis on which it was justified.

FUCHSBERG, Judge (dissenting).

I would yield to what the majority would characterize as the appellant's "importuning" and roll back important aspects of this court's now much criticized decision in People v. Rodawald, 177 N.Y. 408, 70 N.E. 1 see, e. g., Proposed Code of Evidence for State of New York, § 404, subd. par. commentary, at p. 39, recommending repudiation of Rodawald ; see, also, 1 Wharton's Criminal Evidence § 236; 1 Wigmore, Evidence § 63, n. 1 ^*).

Precedentially compelled adherence to flawed portions of Rodawald caused the trial court, sitting without a jury, to disregard the fundamental and pragmatic policy which recognizes that, in striking a balance between competing evidentiary rules, one must never lose sight of the fact that effective fact finding requires "utilizing all rational means for the ascertainment of truth" (4 The Works of Jeremy Bentham Because a failure to be true to that principle deprived the appellant of proof which went to the heart of his guilt or innocence, there should be a new trial.

The proffered proof, in juxtaposition to the factual issues in this case, tells its own tale. The 15-year-old appellant's primary position, essentially that he acted in self-defense, was supported by proof that the 19-year-old Kirwan not only initiated the brawl to which his life became forfeit, but that he had viciously and unceasingly carried the attack throughout. To the point, the trial record tells us that, among other things, Kirwan had been intoxicated all of the evening in question; that, while in that condition, before he took after the appellant, he had, in independent acts, assaulted the manager of a fast-food restaurant and harassed a barmaid; that, in the melee he had started, he violently threw the appellant to the ground; that, over forcible restraint which bystanders repeatedly tried to exert, he successfully fought free to resume his merciless pursuit of the appellant; and that it was he who drew the knife. However, most important to the question at hand is that this proof did not go uncontroverted. There was also conflicting testimony, for instance, to the effect that it was appellant who was first seen in possession of the knife and that Kirwan had come to a standstill at the instant he received the fatal wounds.

It was in this evidentiary context that unimpeachable documentation of decedent's past behavior was offered for the purpose, as the majority acknowledges, of lending credence to appellant's version of Kirwan's conduct. The proffered proof was in the form of official records of psychopathological conduct and criminal acts on Kirwan's part paralleling those to which the appellant claimed he had been subjected. These included recent repeated hospitalizations, whose charts recorded that Kirwan "drinks about half a quart of rum a day"; that within a year he had been arrested five times, "mainly for assault and robbery and once or twice for violent behavior"; that "his...