The People of the State of New York, Respondent, v. Lamont Branch, Appellant: the decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial.
COURT OF APPEALS OF NEW YORK
March 24, 1994, Argued
May 12, 1994, Decided
PRIOR HISTORY: Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered March 15, 1993, which affirmed a judgment of the Supreme Court (James G. Starkey, J.), rendered in Kings County upon a verdict convicting defendant of murder in the second degree, burglary in the first degree and criminal possession of a weapon in the second degree.
DISPOSITION: Order affirmed.
PROCEDURAL POSTURE: Defendant appealed an order from the Appellate Division of the Supreme Court in the Second Judicial Department (New York), which affirmed his convictions of murder in the second degree, burglary in the first degree and criminal possession of a weapon in the second degree.
OVERVIEW: A jury convicted defendant of murder in the second degree, burglary in the first degree and criminal possession of a weapon in the second degree, the judgment of which was affirmed on direct appeal. Defendant sought further judicial review, arguing that a key prosecution witness changed his testimony on the stand after a conference with the prosecutor. The court review the record and affirmed, concluding that the allowance of the mid-testimony conference was within the discretion of the trial judge. The record indicated that the witness first testified that defendant was not carrying the murder weapon because of a pre-testimony hallway confrontation with defendant's family members. The record also indicated that the trial court told the witness that he did not have to have the conference with the prosecutor, and full cross-examination of the witness was offered to defense counsel.
OUTCOME: The court affirmed defendant's convictions.
Criminal Law & Procedure > Trials > Direct Examinations
Criminal Law & Procedure > Trials > Judicial Discretion
Criminal Law & Procedure > Appeals > Reversible Errors > General Overview
The decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial. The court of appeals, as a court of law, may reverse such decisions only for legal error, i.e., the case presented shows no room for the exercise of reasonable discretion. The court is not free to substitute its judgment for that of the trial court when conflicting facts and inferences reasonably support a decision for or against a certain result.
COUNSEL: Linda Poust, New York City, and Philip L. Weinstein for appellant. I. Appellant was denied his rights to due process and confrontation when the prosecutor was permitted to take her witness off the stand as soon as he gave an answer during direct examination which was harmful to the prosecution, and consult with him privately and off the record, which resulted in the witness's returning to the stand and changing his answer. ( Perry v Leeke, 488 US 272; People v Enrique, 165 AD2d 13, 80 NY2d 869; Geders v United States, 425 US 80; United States v Malik, 800 F2d 143; People v Paperno, 54 NY2d 294; Pointer v Texas, 380 US 400; United States v North, 910 F2d 843; United States v Loyd, 743 F2d 1555; United States v Adams, 785 F2d 917.) II. Because the basis of the witnesses' identifications was amply established by other evidence, the extensive testimony concerning appellant's purported drug dealing activities, which could easily have been redacted, was wholly unnecessary and, hence, inadmissible. ( People v Robinson, 68 NY2d 541; People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264; People v Beam, 57 NY2d 241; People v Alvino, 71 NY2d 233; People v Hudy, 73 NY2d 40; People v Satiro, 72 NY2d 821; People v Ely, 68 NY2d 520; People v Ventimiglia, 52 NY2d 350; People v Oritz, 156 AD2d 77.)
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Thomas S. Burka and Roseann B. MacKechnie of counsel), for respondent. I. Defendant has failed to preserve for appellate review his claims regarding the trial court's decision to permit the prosecutor to confer briefly with People's witness, Thomas Edwards, during Edwards' direct examination. In any event, the court's conduct constituted a proper exercise of discretion. ( People v Liccione, 50 NY2d 850; People v Parsons, 150 AD2d 614, 74 NY2d 850; People v Udzinski, 146 AD2d 245, 74 NY2d 853; People v De Jesus, 42 NY2d 519; People v Yut Wai Tom, 53 NY2d 44; Perry v Leeke, 488 US 272; People v Enrique, 165 AD2d 13, 80 NY2d 869; People v Narayan, 58 NY2d 904; United States v Loyd, 743 F2d 1555; United States v Mandell, 525 F2d 671.) II. The court's decision to admit evidence of defendant's involvement in uncharged crimes as evidence that was probative of Edwards' ability to identify defendant did not constitute an abuse of discretion. ( People v Bradley, 150 AD2d 592, 74 NY2d 845; People v Jamerson, 119 AD2d 588, 68 NY2d 757;People v Beam, 57 NY2d 241; People v Molineux, 168 NY 264; People v Alvino, 71 NY2d 233; People v Jackson, 39 NY2d 64; People v Louis, 1 NY2d 137; People v Hudy, 73 NY2d 40; People v Santarelli, 49 NY2d 241; People v Crimmins, 36 NY2d 230.)
JUDGES: Judges Bellacosa, Smith and Levine concur with Judge Simons; Judge Titone dissents and votes to reverse in a separate opinion in which Chief Judge Kaye and Judge Ciparick concur.
OPINION BY: Simons, J.
DISSENT BY: Titone, J.