People v. Provenzano

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.

In our view, the judgment should be affirmed in its entirety. Further, while we agree with the majority’s resolution of this appeal insofar as it concerns defendant Provenzano, we believe his arguments merit additional comment. Both defendants assert that the trial court incorrectly limited their cross-examination of prosecution witnesses. Initially, we note that the constitutional right of confrontation (US Const, 6th Arndt; NY Const, art I, §6; see Pointer v Texas, 380 US 400 ) is not boundless (cf. Barber v Page, 390 US 719 ; People v Safian, 46 NY2d 181 , cert den sub nom. Miner v New York, 443 US 912 ; People v Epps, 37 NY2d 343 , cert den 423 US 999 ; People v Nisonoff, 293 NY 597 , cert den 326 US 745 ) and that the extent of allowable cross-examination is largely committed to the discretion of the trial court. The applicable general rules—still viable today—were accurately condensed by the Court of Appeals long ago in the following language: “So far as the cross-examination of a witness relates either

to facts in issue or relevant facts, it may be pursued by counsel as matter of right; but when its object is to ascertain the accuracy or credibility of a witness, its method and duration are subject to the discretion of the trial judge, and unless abused, its exercise is not the subject of review; nor can the witness be cross-examined as to any facts, which, if admitted^ would be collateral and wholly irrelevant to the matter in issue, and which would in no way affect his credit.” (Langley v Wadsworth, 99 NY 61 , 63.) In order to deal with the specific complaints of defendant Provenzano in this regard, we find it necessary to set forth the testimony of prosecution witness Ralph Picardo in somewhat greater detail. On direct examination, in addition to eliciting the substance of Provenzano’s admissions, it was also disclosed that in 1975 Picardo had been convicted of murder and conspiracy to commit murder in the State of New Jersey; that he subsequently became associated with the Federal witness relocation program and so remained at the time of testifying; that a new trial had been directed upon the reversal of his conviction; and that he was presently awaiting the retrial or the outcome of further appeals. Certain details involving those criminal proceedings were developed on cross-examination by Provenzano’s counsel, but Picardo was not specifically asked whether he had engaged in a homicidal act. After he was excused (there was no questioning by Konigsberg’s attorney), and after a defense witness recounted a statement by Picardo to the effect that he had falsely incriminated Provenzano to obtain favorable treatment in the disposition of the charges pending against him, Provenzano’s attorney expressed a desire to call an unnamed FBI agent to the stand. In a colloquy with the trial court, it was represented that Picardo had confessed his guilt of the New Jersey murder to this agent. It was argued, in part, that revelation of the confession should be permitted because the trial court, in the course of an off-the-record discussion, had disallowed inquiry about the commission of this crime during Picardo’s cross-examination. Following a somewhat disjointed exchange, the proposed testimony was rejected. Provenzano maintains that he was precluded from asking Picardo about the commission of a crime and that evidence thereof in the form of a confession should have been received. Some of the trial court’s remarks tend to bolster Provenzano’s first premise, for they seemingly reflect misunderstanding or error concerning the use of former misdeeds, in addition to convictions, as proper subjects of cross-examination. However, since the record contains no indication of an effort by Provenzano’s attorney to ask the witness if he had performed any criminal acts, and since no objection was then voiced to a supposed ruling dehors the record, we may not infer from mere comments that error was necessarily committed at an earlier point in the trial. While the absence of a protest is not fatal to consideration of an issue in this court, there is nothing whatever to review when, as here, the factual context in which the dispute arose is not preserved. Provenzano’s second contention is equally flawed, but for a different reason. Had Picardo admitted or denied involvement in the New Jersey murder, the matter, ordinarily, would be at an end. An admission would completely effect the desired impeaching result, whereas a denial, though not conclusive, would foreclose later contradiction through the introduction of extrinsic proof (cf. People v Sorge, 301 NY 198 , 201). Recognizing this barrier,

it is said that the confession is relevant to an issue other than Picardo’s credibility; namely, his motive and bias in testifying for the prosecution. Although this exception to the collateral evidence rule is undoubtedly valid (see People v Schwartzman, 24 NY2d 241 , 245), its application to the circumstances of this case would distort reality. Picardo’s status was thoroughly explored. His self-interest was readily apparent, relentlessly pursued in cross-examination, and directly quoted by a defense witness. Picardo’s expectation of reward was stressed from opening remarks through summation, and the jury was fully aware that he had been convicted of murder on one occasion. Knowledge of the confession might have further weakened his general credibility, but its existence could hardly be thought to supply an independent motivation for perjury. Defendant Konigsberg also complains that his cross-examination of a prosecution witness was unduly restricted and, as with defendant Provenzano, we deem it necessary to recite the prevailing circumstances at greater length. Before doing so, however, we observe that this witness, John Nadratowski, made no reference to Provenzano and was not questioned by his attorney. As a preliminary matter, therefore, there would be no basis for upsetting Provenzano’s conviction even if we agreed with the majority’s determination that error was committed which necessitates a reversal of Konigsberg’s conviction. Nadratowski’s account on direct examination corroborated the testimony of an accomplice, Salvatore Sinno, by identifying defendant Konigsberg and placing him at the scene of Castellito’s demise at the time Sinno maintained it occurred in June of 1961. Aware from a pretrial Wade hearing that Nadratowski had first reported his observations and made this identification within a few days after the event, Konigsberg’s attorney maintained in his opening address that while the initial description was of a slightly balding six-foot two-inch individual, his client was five-foot nine-inches tall and had a full head of hair. Variances in the descriptions Nadratowski furnished to police authorities over the intervening period before trial were vigorously probed during cross-examination, but such questioning brought out and reinforced an important fact: the witness consistently named Konigsberg as one of the persons he had encountered 17 years previously. In the absence of the jury, Konigsberg’s counsel stated that he wanted to pursue alleged dishonest or immoral behavior on the part of this witness and received the ruling quoted by the majority. Other proposed topics were mentioned and similarly rejected, as was a later offer to introduce negative character evidence. We conclude that none of these determinations of the trial court requires reversal. Assuming Nadratowski’s reputation for veracity in 1961 could be placed in issue (see Dollner v Lintz, 84 NY 669 ), Konigsberg’s offer of proof was woefully inadequate. It may not be critical that the impeaching witness, Nadratowski’s father-in-law, lived in a distant community (cf. People v Colantone, 243 NY 134 ), but it was not demonstrated that Nadratowski had earned a general reputation which had reached that far and was known by the witness. Instead, it appears that whatever “knowledge” the witness possessed was gained through personal dealing with his relative (People v Colantone, supra, pp 138-139 ). Next, Konigsberg’s offer to establish Nadratowski’s bias against him or a motive to testify falsely was likewise insufficient. When the matter was first broached, only vague and tenuous associations be

tween the witness and principals in the case were suggested. Nadratowski was thereafter recalled and examined as a defense witness concerning his union activities and those of his relatives. All of these hypothesized connections were speculative, remote, or of no demonstrable probative value, thus warranting the exclusion imposed by the trial court (cf. People v Thomas, 46 NY2d 100 , 105; Potter v Browne, 197 NY 288 ; Schultz v Third Ave. R. R. Co., 89 NY 242 ). Lastly, we turn to consideration of the trial court’s prohibition against questioning aimed at instances of prior misconduct. As with the witness Picardo, some of the court’s comments do appear to reflect mistake or misunderstanding. We recognize that Nadratowski was not a defendant (People v Ocasio, 47 NY2d 55 ) and that at least a portion of the alleged conduct fairly implied dishonesty (see People v Schwartzman, 24 NY2d 241 , supra), but closer scrutiny persuades us that the ruling was correct. The demonstration of past wrongdoing may be enough to convince a fact finder that a witness is unworthy of belief in general and, therefore, that his or her account should not be credited. In the typical case, this method of impeachment utilizes vicious, immoral or criminal acts which transpired before the relevant facts in issue arose (e.g., People v Ocasio, 47 NY2d 55 , supra). Here, however, while such “bad acts” supposedly occurred before Nadratowski took the stand, the offer indicates they postdated the pertinent observations which formed the substance of his testimony. In our view, this distinction is vital, for such intervening misbehavior, even if admitted, would not tend to cast doubt on his sighting of Konigsberg in 1961. True, it might become material if the identification procedure had been conducted after 1968 or had his direct testimony included additional relevant incidents occurring thereafter, yet that was not the case. Other examples might also be theorized, but the narrow task of this court is to determine whether there has been an abuse of the trial court’s undoubted discretion to limit or restrict cross-examination which is plainly collateral to disputed issues (cf. People v Ramistella, 306 NY 379 ) and does not bear on a witness’ credibility (e.g., People v Braun, 158 NY 558 ). Though the situation at bar is unusual, we conclude that the ruling of the trial court should be upheld since knowledge of the alleged misdeeds would have been irrelevant to proper jury evaluation of Nadratowski’s account. Finally, we find no merit in the assertions by both defendants that the prosecutor’s summation deprived them of a fair trial and that certain requests for jury instructions were improperly denied.