People v. Provenzano

79 A.D.2d 811, 435 N.Y.S.2d 369, 1980 N.Y. App. Div. LEXIS 14221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1980
• Status: Published

Opinions

Appeal from a judgment of the County Court of Ulster County, rendered June 21, 1978, upon a verdict convicting defendants of the crime of murder in the first degree. When this appeal was first before us, defendants’ murder convictions were reversed and a new trial was ordered on the ground the trial court had improperly denied their challenge of an individual juror for cause (70 AD2d 960). The Court of Appeals, distinguishing its earlier holding in People v Branch (46 NY2d 645), rejected our analysis of that issue and remitted the case to us to pass upon the balance of defendants’ arguments (50 NY2d 420). Since we had already concluded that the trial evidence was not legally insufficient and that the verdict was not against the weight of the evidence (70 AD2d 960, 961), and since no matters addressed to our discretion have been raised or encountered (cf. CPL 470.20, subds 1, 6), only assignments of error involving the conduct of the trial remain for consideration. Anthony Provenzano and Harold Konigsberg were charged with the murder of one Anthony Castellito approximately 15 years after he disappeared in June of 1981. Although Castellito’s body was never discovered, the defendants were jointly tried and convicted upon proof consisting of admissions, accomplice testimony and circumstantial evidence. Our review of the trial record persuades us to the view that the only part of the transcript requiring discussion is that relating to accomplice testimony. Salvatore Sinno, a participant in the Federal witness relocation program, testified for the People. He stated that he agreed to participate with three others in luring Castellito to his farm in Kerhonkson, New York, for the purpose of murdering him in a rural area. The plan was effectuated and about a week later Sinno testified that he met with Provenzano in his office along with Konigsberg and Salvatore Briguglio, the other participant in the murder. At that meeting, Sinno stated, Provenzano gave Konigsberg a sealed envelope, a fact which Sinno related to Provenzano’s earlier statement to him that Konigsberg would be paid $15,000 for his efforts. Provenzano claims that corroboration of this testimony was inadequate and that reversal is, therefore, required. The People’s corroborating witness, Ralph Picardo, also a participant in the Federal witness relocation program, and an alleged murderer,¹ testified that he met with Provenzano in North Bergen, New Jersey, in late 1972 or early 1973 and, further, that Provenzano stated that Castellito had been killed as a result of a power struggle in the Teamsters Union and that he, Provenzano, had ordered the killing. Clearly, if self incriminating extrajudicial statements made by a defendant constitute sufficient corroborative evidence, the requirements of CPL 60.22 (subd 1) to the effect that “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” has been substantially met in this case. This is so even if, as here, the accomplice is a person of disrepute or may have received a promise of reduced exposure to criminal liability by promising to implicate others (People v Daniels, 37 NY2d 624). Such proof, i.e., a defendant’s extrajudicial statements of complicity, has been held to constitute sufficient corroborative testimony so as to permit the question to go to the jury (People v Ozarowski, 38 NY2d 481 [defendant’s statement “We think we killed a Spic last night”] ; see, also, People v Peller, 291 NY 438; People v Buchalter, 289 NY 181, affd 319 US 427; People v Feolo, 284 NY 381). Accordingly, we conclude that the testimony of witnesses Salvatore Sinno and Ralph Picardo adequately established the accessorial culpability of defendant Provenzano for the crime of murder in the first degree. Therefore, pursuant to section 20.00 of the Penal Law, the conviction of Provenzano for the murder of Anthony Castellito can be affirmed notwithstanding error relating to the cross-examination of another witness for the People, John Nadratowski.² However, the limitations placed upon the cross-examination of witness Nadratowski with respect to prior bad acts were so gross as to constitute an abuse of discretion by the trial court requiring reversal of Konigsberg’s conviction since there is no evidence corroborating the testimony of accomplice Sinno as to Konigsberg’s guilt other than the testimony of Nadratowski.³ In chambers, counsel for Konigsberg made an offer of the following proof of acts of individual dishonesty and untrustworthiness of Nadratowski: “1. A certified copy of a Supreme Court order, dated September 17, 1965, which ordered Nadratowski’s arrest for failure to pay $700 growing out of his failure to comply with an informational subpoena served as a result of an attorney’s attempt to collect the amount owed. 2. A document from the Division of Licensing Services of the Department of State, dated 1966, showing a series of transactions in which a prospective buyer paid $2,000 to Nadratowski as a deposit on land which the latter did not own. After complaint and investigation, Nadratowski was ordered to repay the buyer. He issued a check for $2,000 which proved to be worthless. 3. A certified copy of a determination of the Division of Licensing Services of the Department of State, following a hearing at which Nadratowski was present, finding that Nadratowski, as a real estate broker, issued two bad checks in 1968 to cover ordered client refunds. As a result, the Department of Licensing Services suspended Nadratowski’s real estate license for thirty days and ordered that the suspension was to continue until he established an escrow account as required by law, and, further, accounted to the Division to the extent of the number of accounts and the necessary money or deposit to cover the accounts. Nadratowski never complied with this order.” The trial court responded by stating “This court’s analysis of the material is that it is, one, civil in nature; two, that it’s pure speculation; three, it is the judgment of this court it would simply attack the character and reputation of the witness without justifiable cause, and in this court’s judgment the material relied upon is not a good-faith basis for the inquiry sought.” This ruling, in our view, constitutes reversible error as to Konigsberg. It is established that the scope of cross-examination in most instances is subject to the sound discretion of the Judge vested with the responsibility for the management of a trial (People v Ocasio, 47 NY2d 55, 60). Furthermore, when cross-examination involves prior bad acts of a defendant witness, “the wide latitude and the broad discretion that must be vouchsafed to the trial judge * * * precludes this court, in the absence of ‘plain abuse and injustice’ * * * from substituting its judgment for his and from making that difference of opinion * * * a basis for reversal” (People v Sorge, 301 NY 198, cited in People v Duffy, 36 NY2d 258, 263; People v Sandoval, 34 NY2d 371). However, such latitude of discretion is much narrower when the witness is not a defendant and his testimony, if improvidently protected by the Judge, supplies the only accessorial proof of a defendant’s guilt in a case of murder (People v Ocasio, supra). In Ocasio, the Court of Appeals approved the Trial Judge’s refusal to preclude the prosecution from attacking the credibility of defendant’s only witness by confronting her with a 32-year-old conviction of manslaughter, noting that in a case, as here, where the only independent support for defendant’s alibi was the witness, it was important that the jury know who and what the witness was. Here, the trial court and dissent would distinguish Ocasio by advancing the theory that such personal traits as individual dishonesty and untrustworthiness, as well as offenses involving theft, fraud and acts of deceit, are divisible, and only those bad acts that are antecedent to the pertinent observation which formed the substance of the witness’ testimony are germane in evaluating the totality of his worthiness as a truthful witness. We disagree and concur in the view that such acts “will usually have a very material relevance, whenever committed” (People v Sandoval, supra, p 377; emphasis added). The exercise of discretion by the Trial Judge should be concerned with the nature of the prior bad acts as evidence or lack thereof of truthfulness, and except for those instances where the passage of time coupled with the witness’ conduct as a person since the acts were committed suggest that an injustice to the witness would occur without probatively adding to a fair trial by admitting proof of such acts, the Judge should not weigh such conduct in terms of time. Here, the passage of time relied upon by the trial court may be illusory. The documentary proof offered by counsel for Konigsberg (e.g., a certified document from the Department of Licensing Services of the Department of State) speaks to acts of fraud and deceit that happened prior to the dates of such documents and embrace time periods that could be close to if not contemporaneous with Nadratowski’s identification of Konigsberg in 1961. Accordingly, we cannot conclude, as does the dissent, that knowledge of Nadratowski’s prior misconduct “would have been irrelevant to proper jury evaluation of Nadratowski’s account”. Since the error below is of constitutional magnitude (People v Smoot, 59 AD2d 898; see Davis v Alaska, 415 US 308), the conviction of Konigsberg should be reversed and a new trial ordered as to the defendant Konigsberg (CPL 470.20, subd 1). Judgment modified, on the law, by reversing so much thereof as convicts Harold Konigsberg of murder in the first degree, and directing, as to him, that a new trial be held, and, as so modified, affirmed. Mahoney, P. J., Main and Mikoll, JJ., concur.

Kane and Greenblott, JJ., concur in part and dissent in part in the following memorandum by Kane, J.

1 . Picardo had been serving a 17 to 23-year term in prison for murder. His conviction has been reversed and a new trial ordered.

2 . Provenzano cannot use as a defense the fact that Sinno was never prosecuted for the crime, nor can he use any subsequent reversal as to defendant Konigsberg as a defense (Penal Law, § 20.05, subd 2; see People ex rel. Guido v Galkins, 9 NY2d 77, 81).

3 . The trial court did not err with respect to limitations placed upon defense counsel’s cross-examination in the areas of truth, veracity and bias of the witness because of his affiliation with the Teamsters Union.