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.
The People of the State of New York,
Respondent, v. Lamont Branch, Appellant.
No. 81
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.
People
v Branch, 191 AD2d 576, affirmed.
DISPOSITION: Order affirmed.
CASE SUMMARY
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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.
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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.
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OUTCOME: The court
affirmed defendant's convictions.
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CORE TERMS: prosecutor's,
mid-testimony, cross-examination, recess, truth-seeking, defense counsel,
coaching, prosecution witness, consultation, courtroom, confer, cross-examine,
credibility, testifying, safeguards, direct examination, broad discretion, in
camera, constitutional right, assistance of counsel, countervailing, affg,
contradictory, discretionary, unexpected, summation, carrying, gun, abuse of
discretion, direct testimony
LexisNexis® Headnotes
Criminal Law & Procedure > Trials > Direct Examinations
Criminal Law & Procedure > Trials > Judicial Discretion
Criminal Law & Procedure > Appeals > Reversible Errors > General Overview
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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.
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HEADNOTES
Crimes
- Witnesses - Discretion of Trial Court to Grant Recess and Allow Conference
between Prosecutor and Witness
The
trial court did not abuse its discretion when, during direct examination, it
allowed the prosecutor, with appropriate safeguards to preserve both the
truth-seeking function of trial and defendant's rights, to hold a brief private
conference with a witness after that witness had given an unexpected and
potentially damaging response allegedly due to intimidation by defendant's
family. 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. Here, the court required that the witness
be told that he was under no obligation to speak to the prosecutor, it informed
the jury that the witness had been removed so that the prosecutor could confer
with him and it barred the People from introducing any details about why the
witness changed his story other than the equivocal testimony that he was
frightened. The two directly contradictory statements made under oath by the
witness remained on the record for the jury's consideration, both as a matter
of credibility and as a matter of fact. Further, the court allowed the defense
the opportunity to cross-examine the witness about the conference and about the
change in testimony. The defense was also allowed, in summation, to urge the
jury to consider whether improper coaching might have caused the change in
testimony. While the trial court had at its disposal other means of dealing
with this problem, the solution chosen fell well within the broad scope of
discretion allowed to a trial court.
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.
OPINION
This
appeal raises the question of whether the trial court abused its discretion
when, during direct examination, it allowed the prosecutor to hold a brief
private conference with a witness after that witness had given an unexpected
and potentially damaging response. We hold that the trial court acted within
its discretion in permitting such a conference to take place with appropriate
safeguards.
Defendant
was charged with murder and other crimes after Lushon Josephs was shot inside
his Brooklyn apartment. A key prosecution witness was Thomas Edwards. In his
statements to investigators and his testimony before the Grand Jury, Edwards
said he had seen defendant carrying a gun when defendant entered the Josephs
residence with two companions. He stated further that he heard a shot inside
and then saw the three leaving, with defendant still armed.
At
trial, however, Edwards changed his account. In response to a question from the
prosecutor shortly after he took the stand, Edwards claimed that one of defendant's
companions had been carrying the gun. Defendant, he said, was unarmed. The
prosecutor immediately requested a bench conference, at which she asked
for a brief recess to talk to Edwards. The prosecutor expressed her concern
that Edwards had changed his statement at trial because he had been intimidated
by defendant's family members outside the courtroom shortly before taking the
stand. The court was advised that court officers--contrary to the court's
instructions--had prevented Edwards from arriving through a private entrance
and, as a result, Edwards was forced to enter through the public area, where
the alleged contact with defendant's family took place.
Before
ruling, the court allowed defense counsel to state and explain his objections.
It then granted the recess and told both [*666] attorneys
that Edwards could be cross-examined without limitation about the recess and
any conversation he had with the prosecutor during it. The attorneys agreed, at
the request of defense counsel, that Edwards would be told that he was not
required to speak to the prosecutor. After the recess, the jury was informed
that the recess had been called to allow the prosecutor and the witness to
meet.
Upon
his return to the stand, Edwards changed his testimony and said that defendant
had been carrying the gun. The prosecutor was prohibited by the court from
fully exploring what had caused the earlier contradictory testimony. Instead,
Edwards was allowed to say only that he was scared when he testified earlier.
No reason for his fear was offered or allowed. Though defense counsel was free
to cross-examine about the recess and conference, he chose not to do so. Nor
did he request, as he could have, an opportunity to voir dire the conference
participants about the content of the meeting prior to cross-examination. In
his summation, however, defense counsel suggested that Edwards had changed his
testimony because he had been coached during the meeting with the prosecutor.
Defendant
was convicted of murder in the second degree, burglary in the first degree and
criminal possession of a weapon in the second degree. On appeal, the Appellate
Division affirmed, holding that the decision to allow the prosecutor's
conference with Edwards was not an abuse of discretion. We now affirm.
There
can be no question that once a witness takes the stand the truth- seeking
function of a trial will most often be best served by requiring that the
witness undergo direct questioning and cross-examination without
interruption for counseling (see, Perry v [**968] Leeke, 488
US 272, 282; [***367] see
also, People v Enrique, 80 NY2d 869, affg on opn below 165 AD2d 13, 17; People v Narayan, 58 NY2d 904). Indeed, a trial court may reject a
request by a defendant to speak with his or her attorney during testimony
despite the defendant's conceded right to counsel (see, Perry v Leeke, supra, at 284). Nonetheless, in rejecting the
contention that trial courts must allow attorney-client
conferences to testifying witnesses, the Supreme Court and our Court have been
careful to note that trial courts may allow such conferences
as a matter of discretion (see, id., at 284; see
also, People v Enrique, 80 NY2d 869, affg on opn below 165 AD2d 13, 22, supra). Though
the Perry [*667] line
of cases dealt with midtestimony conferences involving defendants, we see no
reason why the rules articulated in those cases should not apply generally to
other witnesses, including the prosecution witness here (see, Perry v Leeke, supra, at 282).
Thus, HN1
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. This Court, 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" ( Matter of Coombs v Edwards, 280 NY 361, 364). We are not free to
substitute our judgment for that of the trial court when conflicting facts and
inferences reasonably support a decision for or against a certain result (see, Cox v Lykes Bros., 237 NY 376, 382; Matter of Droege, 197 NY 44, 53).
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. This Court, 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" ( Matter of Coombs v Edwards, 280 NY 361, 364). We are not free to
substitute our judgment for that of the trial court when conflicting facts and
inferences reasonably support a decision for or against a certain result (see, Cox v Lykes Bros., 237 NY 376, 382; Matter of Droege, 197 NY 44, 53).
The
Trial Judge in this case was confronted with the possibility that a witness was
testifying falsely at the trial, thereby jeopardizing a criminal prosecution
and exposing himself to perjury charges. Significantly, it was alleged that the
witness was lying, not because of anything the prosecutor had done or failed to
do, but because of a hallway confrontation that would not have occurred had
court security personnel followed instructions. Faced with the need to make
sure the court's truth-seeking function was not impaired--either by witness
intimidation or by improper witness coaching by the prosecution--the
court chose a sound middle path that allowed the People a chance to
rehabilitate their case to some extent, yet fully protected both defendant's
right to cross-examination and the jury's authority to make informed
determinations as to facts and credibility. The court required that the witness
be told that he was under no obligation to speak to the prosecutor, it informed
the jury that the witness had been removed so that the prosecutor could confer
with him and it barred the People from introducing any details about why
Edwards changed his story other than the equivocal testimony that he was
frightened. The two directly contradictory statements made under oath by
Edwards remained on the record for the jury's consideration, both as a matter
of credibility and as a matter of fact. Further, the court allowed the defense
the opportunity to cross-examine the witness about the conference and about the
change in testimony. The defense was also allowed, in summation, to urge the
jury to [*668] consider
whether improper coaching might have caused the change in testimony.
In
light of these safeguards undertaken to preserve both the truth- seeking
function of trial and defendant's rights, we conclude that the trial court
did not abuse its discretion. The dissent correctly points out that the trial
court had at its disposal other means of dealing with this problem, including
an in camera conference with the witness or simply leaving the People to
impeach Edwards pursuant to CPL 60.35. Perhaps other Judges would have
handled the matter differently, but that is not the standard of review on this
appeal. The question is whether the Judge erred as a matter of law. In our
view, the solution chosen here fell well within the broad scope of discretion
allowed to a trial court.
Our
decision today is consistent with decisions in other jurisdictions preserving
the trial court's authority to allow midtestimony [**969] [***368] conferences between the
prosecution and a witness when appropriate safeguards are in place. In United States v Malik (800 F2d 143), a witness changed
his testimony after a prosecutor routinely conferred with the witness during
recesses without the court's authorization. The Seventh Circuit concluded there
was no error. The court found it significant that "the jury [was] advised
of the conversation and heard the witness make the correction subject to
cross-examination by defense counsel" (800 F2d, at 149). In United States v De Jongh (937 F2d 1), the First Circuit
found no error where the prosecutor and a witness met privately between her
direct testimony and cross-examination. The court noted that "the defense,
the court, and the jury were fully informed of the meeting and its
circumstances in ample time to assess their effect, if any, on [the witness's]
credibility" (937 F2d, at 3). Similarly,
in State v Delarosa-Flores (59 Wash App 514, 799 P2d 736, review
denied 116 Wash 2d 1010, 805 P2d 814), a 67-year-old rape
victim was allowed to confer privately with a prosecutor after she became
anxious and gave an answer on direct examination that contradicted her pretrial
statements. In finding no abuse of discretion, the Washington appellate court
pointed out that if improper coaching did take place during the recess, the
appropriate remedy was "[s]killful cross-examination" (59 Wash App, at 517, 799 P2d, at 738). Finally, in Frierson v
State (543 NE2d 669), an Indiana appellate court found it
proper for a trial court to allow a conference during direct testimony after a
sexual assault victim became upset on the stand. As in Delarosa-Flores, the
court held that the [*669] opportunity
to cross-examine protected defendant's rights fully.
Though
a trial court's discretion is not boundless, these decisions, like Perry
v Leeke and People v Enrique (supra), underscore the
wisdom of leaving trial courts with broad discretion to determine when a
conference is called for and when it is not. A midtestimony conference may be a
strategic maneuver designed to frustrate the other side's case, or it may be an
important step toward making sure a flustered witness does not inadvertently
misstate the facts. The trial court is in the best position to distinguish
between the two. Its ruling necessarily turns on judgments we, as an appellate
court, cannot easily make from a cold record: the apparent condition of the
witness, the possible motivation of the attorney, the likelihood of undue
delay, and the probability that cross-examination will be an adequate remedy.
To unduly limit a trial court's discretionary power in matters concerning trial
management increases the likelihood that rigid rules will replace common sense
and that the truth-seeking function of a trial will be impaired not
advanced.
We
have reviewed defendant's other arguments and find them without merit.
Accordingly,
the order of the Appellate Division should be affirmed.
DISSENT BY: Titone, J.
DISSENT
Titone,
J.
(Dissenting).
Relying on the limitations on our review power in cases involving trial court
discretion, the majority has upheld a ruling permitting a prosecutor to conduct
a private, midtestimony conference with a witness for the express purpose of
questioning that witness about an unexpected and decidedly unfavorable turn in
his testimony. In my view, however, the ruling fell well outside the
permissible range of trial court discretion, since the risk of interference
with the truth-seeking process was high and there were no countervailing
considerations to justify this extraordinary departure from accepted courtroom
practice. Accordingly, I dissent.
The
majority begins its analysis with the premise that off-record midtestimony conferences
with witnesses are generally permissible, subject to the trial court's
discretion. In support, the majority relies in part on Perry v Leeke (488 US 272) and People v Enrique (80 NY2d 869, affg165 AD2d 13). However, both of those cases
involved situations in which the trial court had refused to
permit a conference between a defendant and [*670] defense counsel and
the only question before the appellate court was whether the ruling violated
any constitutional or procedural rights that the defendant may have had (see
also, [**970] [***369] People v Narayan, 58 NY2d 904).
Manifestly,
there is a significant difference between those cases and this one, where a
midtestimony conference between a prosecutor and her witness was permitted.
Unlike this situation, cases involving a midtrial conference between the
defendant and defense counsel implicate the defendant's constitutional right to
the assistance of counsel (see, Perry v Leeke, supra, at 284; see also, Geders v
United States, 425 US 80). Indeed, the entire focus of
the analyses in Perry and Enrique was whether
the trial courts' decisions to disallow defense consultation violated that
constitutional right (see also, People v Narayan, supra).
Both Perry and Enrique held
only that, in the circumstances presented, the constitutional right to counsel
did not obliterate the discretionary power of the trial court to forbid midtestimony
conferences in order to protect the truth-seeking process. Neither case may
fairly be cited for the proposition that off-the-record conferences with
witnesses are generally permissible as a matter of State or Federal law.
Inasmuch
as there are no New York cases affirmatively approving midtestimony
conferences with nondefendant witnesses (cf., People v Gonzalez, 27 NY2d 53, 58, cert denied 400 US 996), the issue presented here should be
approached as a matter of first impression. Viewed in that light, there is no
particular, precedentially supported reason to treat the question as one that
falls within the broad, virtually unguided discretion of the trial court, as
the majority assumes. Since we are writing on a clean slate and without direct
constitutional constraint, our primary focus should be on fashioning a rule
that would most effectively advance the truth-seeking process.
The
majority seems to proceed from the premise that midtestimony conferences
between witness and prosecutor may be helpful to that process, provided that
full cross-examination to uncover any improper coaching is available. The
majority's premise, however, runs counter to the common law's traditional
mistrust of private, midtestimony consultations between witnesses and
attorneys. That mistrust was recognized in Perry v Leeke (supra, at 281, 282), in which the Court
stated that "[i]t is a common practice for a judge to instruct a witness
not to discuss his or her testimony with third parties," [*671] since midtestimony
consultations by witnesses can impede "the truth-seeking function of the
trial" in several ways, including "unethical 'coaching'." The
potential for impairment of the truth-seeking process was also recognized
in People v Enrique (supra), in which it was cited as a basis
for upholding a trial court decision to ban consultation between a defendant
and his attorney during a luncheon recess.
Indeed,
it is this very concern, i.e., that midtestimony consultations are inimical to
the truth-seeking process, that has heretofore been used to rationalize most
curtailments of what would otherwise be treated as a defendant's absolute right
to the advice of counsel during every stage of the proceeding ( Perry v Leeke, supra; Geders v
United States, supra; People v Enrique, supra). It is
ironic (and more than a little troubling) that now--in a case where the defendant's
right to the assistance of counsel is not at stake and the person whose
testimony was interrupted is witness for the prosecution--the Court
has decided to take the position that midtestimony conferences can enhance,
rather than undermine, the search for the truth.
Contrary
to the view adopted by the majority, which relies heavily on decisions from
other jurisdictions, I would adopt for our courts a view suggested in another
out-of-State case, People v Pendleton (75 Ill App 3d 580, 595, 394 NE2d 496, 507), in which it was
observed that midtestimony discussions between prosecutors and their witnesses
"pose a tantalizing potential for misconduct" and thus "they are
to be strictly scrutinized." Under my view, trial courts would have some
discretion to permit the suspect practice, but their discretion would be
narrowly circumscribed and would be subject to review under one or more
specific criteria.
[**971] [***370] The criterion that most
readily comes to mind is that of necessity. Since the procedure in question is
one that threatens the integrity of the truth-finding process, it should
not be permitted until at least a threshold showing of need has been made.
In most cases, of course, there are alternative, less perilous methods for
remedying apparent reversals in a prosecution witness's story. In situations
involving recanting non-party witnesses, CPL 60.35 permits the prosecutor to impeach
with certain of the witness's prior inconsistent statements if that witness has
"give[n] testimony upon a material issue of the case which tends to
disprove the position of such party" (subd [1]). It is true that the case
law has established a [*672] relatively
stringent standard as a predicate for invoking this provision (see,
e.g.,People v Saez, 69 NY2d 802; People v Fitzpatrick, 40 NY2d 44). However, the
difficulty of using the legislatively created procedure for challenging a
witness's eleventh-hour change of position on the record does not furnish a
persuasive reason for permitting a prosecutor to cajole the witness into
changing position in a private, off-record conference.
Moreover,
in those rare cases where the rules for impeaching one's own witness are
genuinely too austere to fit the situation (see, State v Delarosa-Flores, 59 Wash App 514, 799 P2d 736, cited by majority
opn, at 668; Frierson v
State, 543 NE2d 669 [Ind], cited by majority opn, at 668)
there are ordinarily other, less troubling remedies than a private, unmonitored
discussion between the prosecutor and the witness. Presumably, the prosecutor
can request an in camera conference in which the reasons for the witness's
change of heart can be explored in the presence of a Judge, a stenographer and
even opposing counsel where appropriate (see, e.g., United States v Adams, 785 F2d 917; Kingery v
State, 523 So 2d 1199 [Fla]). Since there is no
attorney-client relationship and no privilege to be guarded, there is no
justification for affording a conference between prosecutor and witness the
same degree of privacy that is afforded when a defendant and defense counsel
confer. It is the element of privacy that creates the opportunity for coaching
and tampering, and, thus, courts should be directed to exercise their
discretion so as to avoid unsupervised and unmonitored midtestimony colloquies
unless no other practical option exists.
Viewed
in light of these principles, the ruling challenged in this case can only be
viewed as reversible error. When the testimony of Thomas Edwards, a
critical prosecution witness, proved to be unexpectedly favorable to the
defense, the trial court permitted the prosecutor to confer with her witness,
in private, for the expressed purpose of affecting the substance of that
witness's testimony on a crucial point (cf., Frierson v
State, 543 NE2d 669, supra [conference
permitted to enable prosecutor to determine whether witness was too upset to
continue]). However, apart from the prosecutor's convenience and her partisan
desire to remedy a sudden hole in her case in the most expeditious and least risky
manner possible, there was no sound judicial reason--or, for that matter, any
reason at all--for allowing such a drastic departure from the ordinary rules of
courtroom practice. Edwards was not the prosecutor's [*673] "client" so that he
had a cognizable interest in obtaining midtestimony legal advice; nor was he a
defendant with a constitutional right to the assistance of counsel. The only
other possible countervailing interest, ensuring truthful testimony, could have
just as readily been served through the use of less troublesome alternatives,
such as an in camera inquiry in the presence of the court and counsel or
even impeachment under CPL 60.35. The resort to a private conference, a
practice that has long been regarded as inimical to the interests of truth
finding, was clearly erroneous and cannot be condoned.
Unlike
the majority, I would also reject the People's contention that reversal is not
required in cases such as this one because the danger of prejudice can be
dissipated by the availability of cross-examination to determine whether the
witness has been coached or otherwise influenced. While perhaps superficially
appealing, the argument is ultimately disingenuous because it places an unfair
and unnecessary burden on the defense.
[**972] [***371] Although cross-examination
has been dubbed "the greatest legal engine ever invented for the discovery
of truth" (5 Wigmore, Evidence § 1367 [Chadbourn rev 1974], cited in Perry v Leeke, supra, at 283, n 7), it is not without
pitfalls for the party who wishes to use it. Every experienced trial lawyer
knows that each question posed to an opponent's witness carries a risk that the
answer will be harmful in some unanticipated way. Additionally, despite the
value of cross-examination for uncovering truth, there is always the
possibility that a skillful or well-coached witness will be able to evade its
searching light. While such pitfalls may be inevitable in our necessarily
imperfect truth-finding system, it is fundamentally unfair to force the defense
to assume the burdens and risks of cross-examination when it was a flaw in the
People's case that prompted resort to an unorthodox courtroom procedure.
If,
as the People contend, cross-examination in the presence of the jury is the
most effective method we have for ferreting out the truth, the proper solution
for uncovering the truth when a prosecution witness testifies in a surprising
and unfavorable way would seem to be cross-examination of that witness by
the People under CPL 60.35. The People may well be unsatisfied
with that option and instead prefer the more comfortable route of a private,
midtestimony conference. However, if that is the case, they should not be heard
to argue [*674] that the
defendant should be satisfied to remedy any resulting prejudice by relying on
the same right of cross-examination that they have eschewed.
Finally,
I would stress my disagreement with the majority's view that rulings of
this sort cannot be challenged in our Court, a court of law, because they fall
within the realm of trial court discretion. Our nisi prius courts undoubtedly
enjoy a tremendous latitude in managing the courtroom and in directing the
details of trial. However, that discretion is not unlimited. Rather, it must be
exercised within a framework of legal rules, criteria and general principles,
all of which are within this Court's proper purview. Indeed, far from being an
area that we should shun, the functions of line drawing and establishing
criteria for the exercise of discretion are squarely within our
responsibilities as the State's highest court.
Where
the management of the examination of witnesses is concerned, the trial court's
discretionary rulings should be informed by a concern for the integrity of the
truth-seeking process. When, as here, a trial court permits a procedure that
carries a clear potential for distorting the truth and there is no identifiable
countervailing reason for taking that risk, the ruling cannot be upheld on the
theory that it was within the permissible range of discretion. Accordingly, I
would hold that the trial court in this case committed an error of law and
that the resulting judgment must be reversed.
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.
Order
affirmed.