THE PEOPLE OF THE STATE OF NEW YORK, Respondent
v.
THOMAS GALVIN, Appellant.
Argued By: Karen Baldwin Kravetz (counsel for the appellant); Daniel T. Butler (counsel for the respondent)
Judgment Reversed / Accusatory Instruments Dismissed: Andrew J. DiPaola, P.J.; Marquette L. Floyd & Louis C. Palella, JJ.
DECISION OF THE COURT
<SM-1>
Appeal by defendant from a judgment of the District Court, Nassau County (R. Mahon, J.) rendered on June 27, 1996, convicting him of aggravated harassment and imposing sentence.
Judgment of conviction unanimously reversed on the law and facts and as a matter of discretion in the interest of justice and accusatory instrument dismissed.
Defendant was charged with aggravated harassment involving telephone calls to the complaining witness. At trial, the witness testified over objection that there was a protective order in effect at the time of the calls and that defendant had a prior conviction. The People, on notice of the inaccuracy of both statements, failed to come forward and correct their witness' statements.
<SM-2> In the case at bar, the People presented sufficient proof to support the finding of guilt by the jury. However, the inquiry of this court should not stop at that. In People v. Mirenda (23 NY2d 439, 446-447), the court found the evidence sufficient to support a judgment of conviction. It then stated:
In the case at bar, two basic errors were committed. One was by the People and the other by the court, which, when taken together, deprived defendant of a fair trial. The first error involved the People and their failure to correct the testimony of their witness, when she mistakenly spoke about the existence of a protective order.
In speaking about the duty of the People at trial regarding the issue of good faith and their obligation to disclose information and correct misstatements of their witnesses, the court in People v. Cwikla (46 NY2d 434, 441), held that the People were required to disclose correspondence in which the People expressed hope to the Parole Board that the cooperation of the witness would be taken into account when the witness was considered for parole. In People v. Novoa (70 NY2d 490, 496-497), a promise was made to benefit the witness and the People had a duty to disclose this and to correct the witness' testimony that she was promised nothing (id at 493). The court spoke about the "concept of fairness" which imposes a <SM-4> duty on the prosecutor to disclose evidence favorable to the defendant and a "duty of candor and disclosure" (id at 496). The court then stated (id at 496-497):
In People v. Steadman (82 NY2d 1, 7-8) the court spoke about the duty of the prosecutor. It stated that:
In People v. Figueroa (167 AD2d 101, 104), the court stated that "A conviction based on evidence which is known to be false impairs a defendant's due process rights, requiring a reversal of that conviction."
As applied to the case at bar, there were two instances of misconduct by the People. The first one concerned the complaining witness' testimony about the existence of a protective order. No such order existed and the People argue on appeal that defendant's counsel and the court knew of this. However, the People knew this as well and no effort was made by them to assist the court in correcting the misstatements of their witness.
The second instance of misconduct had to do with the testimony of the same witness about defendant's prior conviction. Defendant had been tried and convicted on May 11, 1994 of criminal contempt and aggravated harassment and was sentenced to concurrent one year and five month terms.<SM-7> That conviction was reversed by this court in its order of December 4, 1985.* This trial did not take place until May of 1996 and was being prosecuted by the same office that had tried and convicted defendant in the earlier case. The questions asked by defendant's counsel did in fact call for a "yes" or "no" answer ("You've never been to the jail?"), and when the witness added that defendant was incarcerated for eight months and insisted that he had been found guilty, the People made no attempt to correct this error or misstatement by the witness. Defendant's counsel asked the court to strike that answer and to judicially notice that defendant had been acquitted in that case. While not entirely accurate in stateing that defendant was "acquitted", the fact remains that the conviction was reversed and the accusatory instrument dismissed, bu the jury never heard that fact from the court or from the People.
The court never gave any curative instructions at that time and denied defendant's motion for a mistrial on the ground that the jury had been told of a similar conviction. Thus, defendant's right to a fair trial had been compromised. The court denied the motion for a mistrial and compounded the error by never instructing the jury on the reversal of the <SM-8> conviction (although not asked to do so by the defendant). Defendant's counsel agreed that the conviction could be used to assess his client's credibility. However, the jury was not informed of the nature and proper effect to be given a conviction that is reversed and therefore this only further served to confuse the jury. As such, the jury was able to hear that when this crime was allegedly being committed, defendant was awaiting sentence on a similar crime. This is prejudicial, even though there is sufficient evidence of his guilt.
The People argue on appeal that the points are not preserved, that the objections are not specific and that defendant never alleged that he was being denied a fair trial. These arguments are not supported by the record. Counsel for defendant objected to the statement of the witness about the protective order and the People failed in their independent duty to come forward and correct the misstatement of the witness. Secondly, the reversal of the conviction was something of which the court should have taken judicial notice. Moreover, the failure of the District Attorney's office to inform the court of the reversal is also a breach of its duty of "candor and disclosure."
<SM-9> It cannot be said that such errors are harmless beyond a reasonable doubt and therefore the judgment must be reversed. Since the sentence was served the accusatory instrument should be dismissed.
* Webmaster's Correction: The order referred to on page 7 of the decision was actually issued in 1995, not in 1985.
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