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People v. Provenzano

50 N.Y.2d 420 Court N.Y. Decision date 1980-05-29 English

Delivered by Wachtler, J.

Contents

Majority

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The People of the State of New York, Appellant, v Anthony Provenzano and Harold Konigsberg, Respondents.
Argued April 24, 1980;
decided May 29, 1980
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POINTS OF COUNSEL
Michael Kavanagh, District Attorney (Edward M. P. Greene of counsel), for appellant.
I. The situation in the case at bar bears no semblance of similarity to the situation presented in the Branch case. (People v Branch, 46 NY2d 645 .) II. The need for guidelines is demonstrated by the extreme extension of the statutory dimensions for disqualifying a juror for cause by the court below.
Gerald L. Shargel, Maurice Edelbaum, John Pollok and Jay Goldberg for Anthony Provenzano, respondent.
I. The court below correctly applied People v Branch to the trial court’s erroneous ruling which denied a challenge for cause against a prospective juror who was a political associate of the prosecutor. (People v Branch, 46 NY2d 645 ; Sims v United States, 405 F2d 1381 ; People v Culhane, 33 NY2d 90 ; Irvin v Dowd, 366 US 717 .) II. The cross-examination of Ralph Picardo was so
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unduly restricted as to deprive the defense of the right of effective cross-examination. Moreover, the court below erred in failing and refusing to permit the defense to produce extrinsic evidence demonstrating that Picardo had committed an unrelated murder. (Pointer v Texas, 380 US 400 ; Douglas v Alabama, 380 US 415 ; People v Webster, 139 NY 73 ; Shepard v Parker, 36 NY 517 ; People v Kass, 25 NY2d 123 ; People v Alamo, 23 NY2d 630 ; People v Sorge, 301 NY 198 ; People v Fiori, 123 App Div 174 ; People v Smoot, 59 AD2d 898 .) III. The court below erred when it rejected defendant’s offer of negative character evidence to impeach the credibility of John Nadratowski. Moreover, the court below unduly restricted the cross-examination of Nadratowski by refusing to allow him to be questioned with respect to immoral, vicious, criminal acts and evidence to show his bias and motive. (Carlson v Winterson, 147 NY 652 ; People v Loris, 131 App Div 127 ; People v Colantone, 243 NY 134 ; United States v Oliver, 492 F2d 943 ; United States v Parker, 447 F2d 826 ; People v Viger, 53 AD2d 991 .) IV. The trial court’s charge on the statutory requirement of corroboration was insufficient; the court’s refusal to explain the application of the law to the facts is reversible error. (People v Gioia, 286 App Div 528 ; Krulewitch v United States, 336 US 440 ; People v Devaul, 54 AD2d 1038 ; People v Nitzberg, 287 NY 183 ; People v Dixon, 231 NY 111 ; People v Rossi, 11 NY2d 379 ; People v Clayborn, 50 AD2d 952 ; People v Coonan, 64 AD2d 541 ; People v Elbroch, 250 App Div 583 ; People v Singleteary, 54 AD2d 1088 .) V. The prosecutor’s conduct in this case, including his comments on summation, deprived defendant of his constitutionally guaranteed right to a fair trial. (People v Carborano, 301 NY 39 ; People v Ashwal, 39 NY2d 105 ; People v Garcia, 40 AD2d 983 ; People v Slaughter, 28 AD2d 1082 ; People v Douglas, 36 AD2d 994 ; People v Lovello, 1 NY2d 436 ; People v Morales, 53 AD2d 517 ; People v Cleague, 22 NY2d 363 ; Berger v United States, 295 US 78 ; People v Rogers, 59 AD2d 916 .) VI. The entire jury selection process in this case was tainted; Provenzano was deprived of his right to an unbiased jury. (Estes v Texas, 381 US 532 ; Sheppard v Maxwell, 384 US 333 ; Chambers v Florida, 309 US 227 ; People v Di Piazza, 24 NY2d 342 ; Marshall v United States, 360 US 310 ; People v Coleman, 43 NY2d 222 ; United States v Wade, 388 US 218 .)
Ivan S. Fisher and Joel B. Rudin for Harold Konigsberg, respondent.
I. Konigsberg was denied his constitutional and
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common-law right to test the credibility of John Nadratowski, a crucial prosecution witness. (People v Kress, 284 NY 452 ; United States v Nevitt, 563 F2d 406 ; People v Sorge, 301 NY 198 ; People v Sandoval, 34 NY2d 371 ; People v Ocasio, 47 NY2d 55 ; La Beau v People, 34 NY 222 ; People v Allen, 67 AD2d 558 , 47 NY2d 1013 ; People v Smoot, 59 AD2d 898 ; People v Summers, 49 AD2d 611 ; People v Donovan, 35 AD2d 934 .) II. The trial court erred in refusing to charge the jury that it could not convict Konigsberg if it did not believe Nadratowski, the People’s sole corroborative witness. (People v Horton, 61 AD2d 1082 ; People v Ohlstein, 54 AD2d 109 ; People v Wasserman, 46 AD2d 915 ; People v Ice, 265 App Div 46 ; People v Fiore, 12 NY2d 188 ; People v Fox, 38 AD2d 767 ; People v Cline, 271 App Div 988 ; People v Hamm, 140 Misc 335 ; People v Reddy, 261 NY 479 ; People v Rivera, 60 AD2d 852 ; People v Coonan, 64 AD2d 541 ; People v Baker, 23 NY2d 307 ; People v Goldfeld, 60 AD2d 1 ; People v Horton, 19 AD2d 80 , 18 NY2d 355 .)

OPINION OF THE COURT

In June of 1961, Anthony Castellito, a New Jersey union official, disappeared. Fifteen years later, although Castellito’s body was never discovered, Anthony Provenzano and Harold Konigsberg were charged with his murder. They were tried jointly before a jury and were convicted of murder in the first degree (former Penal Law, § 1044) upon proof consisting of circumstantial evidence, admissions, and accomplice testimony.

On appeal the Appellate Division reversed the conviction, on the law, and ordered a new trial as to both defendants. While numerous grounds were urged by the defendants as a basis for reversal in the Appellate Division, that court reached but one — the Trial Judge’s refusal to excuse an individual juror, Theresa E. Thomas, for cause.

The record discloses that Mrs. Thomas had met the trial prosecutor, Michael Kavanagh, at several political rallies and that both were members of the same local political club. She revealed that she had campaigned for the prosecutor in his 1977 race for election as Ulster County District Attorney; however, her campaign effort was for her party’s ticket, on which Kavanagh ran, rather than a personal effort for the District Attorney alone. Although she readily admitted that at

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the time of the campaign she believed the trial prosecutor to be the best qualified for the office of District Attorney, at no time did she indicate any social relationship between them.

The trial court refused a defense request to dismiss Mrs. Thomas as a juror "for cause”. The defense thereupon struck her from the panel by exercise of a peremptory challenge. Although at that point the defense had peremptory challenges remaining to it, those peremptory challenges were exhausted before completion of the jury selection process thus if the denial of the challenge for cause was error, it was prejudicial and requires reversal (CPL 270.20, subd 2).

The question on this appeal is whether it can be said, as a matter of law, that the relationship testified to was "likely to preclude” (CPL 270, subd 1, par [c]) the potential juror from giving an impartial verdict, rendering reversible error the failure to grant a challenge "for cause”.

The Appellate Division found the relationship in question to be essentially indistinguishable from that which we found objectionable in People v Branch ( 46 NY2d 645 ) and, as previously noted and without comment on the defendants’ other assignments of error, reversed the convictions. The People appeal by leave of a Judge of this court.

CPL 270.20 (subd 1, par [c]) specifies certain relations which, if existing between a potential juror and the defendant, victim, a prospective witness, or attorneys for either the prosecution or defense, will automatically bar the potential juror from service in that case. The last clause of subdivision (c) disqualifies from jury service anyone who "bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict”. In the case of any of the relationships covered by subdivision (c) an expurgatory oath is not available to purge the taint of bias implied by the law from the existence of the relationship (People v Branch, supra, at p 649 ).

People v Branch concerned a juror who was a part-time policeman. Not only did he have professional contacts with the District Attorney’s office, but he had also worked closely and socialized with the very attorney who prosecuted the case in which the officer had been called as juror. Emphasizing the direct and personal nature of the contacts this court held that that relationship, as a matter of law, was likely to preclude the juror from rendering an impartial verdict (Branch, supra, at p 651).

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By contrast, the facts of the case at bar show little more than a nodding acquaintance coupled with a belief by the juror that the District Attorney was the best qualified candidate for that post. Neither separately nor in combination do these factors amount to a relationship of which it could be said that the impact on the mind of the average juror would be likely to preclude the juror from rendering an impartial verdict. Merely generalized support for the candidates of one party or attendance at political rallies does not signal a relationship which would preclude fairness on the part of a prospective juror. Of course, direct partisan support in an individual campaign effort might impart a different hue to the relationship — but that was not the case here.

On argument before our court the District Attorney readily conceded that if these circumstances were repeated he would consent to the challenge. Indeed, in retrospect it is probable that the Trial Judge would have "lean[ed] toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve” (People v Branch, supra, at p 651 ). This, of course, would have been the better course in the instant case, but on the facts presented here we cannot say, as a matter of law, that the failure to do so was error. We therefore reverse.

However, as the Appellate Division has not yet had an opportunity to pass on the other arguments of the defendants or to exercise its powers of discretion this matter should be remitted for further proceedings (see People v Berkowitz, 50 NY2d 333 ).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

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