People v. Aharonowicz — 71 N.Y.2d 678

Majority

p. 678

The People of the State of New York, Respondent, v Mortechi Aharonowicz, Appellant.

Argued April 26, 1988;

decided June 7, 1988

p. 679

POINTS OF COUNSEL

Vincent A. Malito for appellant.

I. The trial court’s erroneous jury charge on character evidence requires reversal. The error assigned is that, through the decades, the correct law has never been precisely articulated by the Court of Appeals and the concepts drawn from this line of case law have been blurred. This fundamental error of law deprived appellant of his right to be fairly tried, under the State and Federal Constitutions. (People v Bonier, 179 NY 315 ; People v Conrow, 200 NY 356 ; People v Roach, 215 NY 592 ; People v Colantone, 243 NY 134 ; People v Trimarchi, 231 NY 263 ; People v Miller, 35 NY2d 65 ; People v Bouton, 50 NY2d 130 ; People v Pryor, 70 AD2d 805 ; People v Ingram, 49 NY2d 865 ; People v Gordon, 40 AD2d 835 .) II. The evidence established by a fair preponderance the affirmative defense of entrapment. (People v McGee, 49 NY2d 48 , cert denied sub nom. Waters v New York, 446 US 942 .) III. The trial court, in charging the jury, wrongly equated character testimony with nonpredisposition testimony, thus charging effectively that none of the defense evidence was sufficient to create reasonable doubt. IV. The trial court failed, in spite of a request, to give limiting instructions as to the weight and probity of the prosecution’s hearsay predisposition testimony. V. The court did not give the required "moral certainty” charge in connection with such hearsay circumstantial evidence. VI. The trial court failed adequately to clarify for the jury, in response to numerous requests, the entrapment concept. (People v Massamillo, 69 AD2d 790 .) VII. The defense was entitled, based on its offer of factual proof, to an Isaacson hearing posttrial. (People v

p. 680

Isaacson, 44 NY2d 511 ; Matter of De Canzio v Kennedy, 67 AD2d 111 ; People v Pomerantz, 63 AD2d 457 , 46 NY2d 240 ; People v Tyler, 62 AD2d 136 ; People v Rao, 73 AD2d 88 ; People v Archer, 68 AD2d 441 , 49 NY2d 978 ; People v Cousart, 58 NY2d 62 ; People v Vega, 80 AD2d 867 ; People v Jorgensen, 118 Misc 2d 310 ; People v Paccione, 99 Misc 2d 1027 .) VIII. The defense should have been allowed to call two additional nonpredispositional witnesses, based on the functional unavailability of the two inmates who had made declarations against a penal interest. (People v Brown, 26 NY2d 88 ; People v Settles, 46 NY2d 154 ; People v Josan, 92 AD2d 902 ; People v Thompson, 59 AD2d 996 , 47 NY2d 940 .)

Patrick Henry, District Attorney (Patricia A. Murphy of counsel), for respondent.

I. The trial court properly instructed the jury that "evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt”. (People v Trimarchi, 231 NY 263 ; People v Miller, 35 NY2d 65 ; People v Bouton, 50 NY2d 130 ; Cancemi v People, 16 NY 501 ; Remsen v People, 43 NY 6 ; Stover v People, 56 NY 315 ; People v Brooks, 131 NY 321 ; People v Sweeney, 133 NY 609 ; Edgington v United States, 164 US 361 .) II. The trial court properly charged the entrapment defense: the jury’s resolution of the issues against appellant should not be disturbed. (People v McGee, 49 NY2d 48 , cert denied sub nom. Waters v New York, 446 US 942 ; People v Fuller, 130 AD2d 840 ; People v Erskine, 128 AD2d 800 ; People v Rodriguez, 118 AD2d 878 , 67 NY2d 1056 ; People v Leguillon, 119 AD2d 590 , 68 NY2d 758 ; People v Zaloga, 114 AD2d 871 ; People v Tucker, 96 AD2d 893 ; People v Way, 59 NY2d 361 ; People v Milanes, 91 AD2d 669 ; People v Cleague, 22 NY2d 363 .) III. Appellant advances various objections to the court’s charge for the first time on appeal; thus, any claim of error is unpreserved. Moreover, these contentions are without merit. (People v Thomas, 50 NY2d 467 ; People v Patterson, 39 NY2d 288 ; People v Whalen, 59 NY2d 273 ; People v Hoke, 62 NY2d 1022 ; People v Wynn, 108 AD2d 768 ; People v Scott, 108 AD2d 882 ; People v Joiner, 105 AD2d 805 ; People v McLaughlin, 104 AD2d 829 ; People v Nelson, 104 AD2d 1010 ; People v King, 91 AD2d 1073 .) IV. The court’s denial of the defense motion for a posttrial Isaacson hearing was proper. (People v Longwood, 116 AD2d 590 ; People v Isaacson, 44 NY2d 511 ; People v Rao, 73 AD2d 88 ; People v Archer, 68 AD2d 441 , 49 NY2d 978 ; People v Smith, 106 AD2d 670 .) V. The court’s denial of the defense application to call two witnesses to testify was proper.

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OPINION OF THE COURT

Defendant was charged with attempted criminal possession of stolen property in the first degree, arising out of a police undercover operation targeting him as a "fence” for stolen property. At trial, defendant raised the affirmative defense of entrapment and also introduced evidence of his good character. In its charge to the jury, the court instructed — in compliance with our holding in People v Miller ( 35 NY2d 65 , 67-68)— that defendant’s "evidence of good character shall always be considered and weighed * * * as bearing upon the guilt or innocence of the defendant * * * [b]ut, evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt”.^[1] Defendant assigns error to this charge, arguing that we have adopted a contrary formulation — articulated in the more recent case of People v Bouton — that character evidence may "in and of itself give rise to a reasonable doubt of guilt where none would otherwise exist” (People v Bouton, 50 NY2d 130 , 139).

The principle has long been that in a criminal prosecution, the accused may introduce evidence as to his own good character to show that it is unlikely that he committed the particular offense charged (see, People v Bouton, 50 NY2d 130 , 135, supra; People v McDowell, 9 NY2d 12 , 14; People v Conrow, 200 NY 356 , 360; People v Van Gaasbeck, 189 NY 408 , 413; Cancemi v People, 16 NY 501 , 506; see also, Edgington v United States, 164 US 361 , 366-367; see generally, Richardson, Evidence § 150, at 120-121 [Prince 10th ed]). It is equally well settled that such evidence is not "in and of itself’ or "standing

* The court charged as follows: "I charge you that evidence of good character shall always be considered and weighed by a jury as bearing upon the guilt or innocence of the defendant. But, evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt. First, such evidence must be believed and then when considered with all of the other evidence in the case it might be sufficient to raise a reasonable doubt as to the guilt of the defendant * * * However, after weighing the evidence of the defendant, good character with all of the other evidence in the case, if you believe the defendant to be guilty beyond a reasonable doubt, then you are duty bound to convict him; notwithstanding that, you may believe that his character is good. The rule is that evidence of good character must always be considered not alone but in connection with all of the evidence bearing upon the question of the guilt or innocence of the accused. The jury has no right to separate it from the mass of testimony and say that they believe the accused has a good character, and therefore they’ll disregard all of the evidence of guilt.”

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alone” sufficient to constitute a reasonable doubt as to guilt (People v Trimarchi, 231 NY 263 , 266; see generally, Fisch, New York Evidence § 183, at 108 [2d ed]). Character evidence must first be believed by the jury; then, when considered with all the other evidence in the case, it may be sufficient to raise a reasonable doubt (People v Miller, 35 NY2d 65 , 67-68, supra; People v Johnson, 6 AD2d 799 , affd 5 NY2d 1000 ; People v Trimarchi, 231 NY 263 , 266, supra; see, People v Roach, 215 NY 592 , 607-608; see generally, Richardson, Evidence § 150, at 121 [Prince 10th ed]; 1 CJI[NY] 12.05).

Put differently, the jury may not ignore the People’s evidence tending to establish guilt and, having considered only defendant’s evidence of good character, render an acquittal based solely thereon. Rather, the jury must consider character evidence in light of all of the evidence in the case. Where evidence of good character is the only evidence in defendant’s case, it in this sense "stands alone”; however, it may give rise to a reasonable doubt only when in the judgment of the jury it is believed and sufficiently calls into question the credibility of the People’s evidence tending to establish guilt (People v Miller, 35 NY2d 65 , 67-68, supra; People v Trimarchi, 231 NY 263 , 266, supra). Claims such as that raised by defendant— that the jury should be charged that character evidence "in and of itself’ or "standing alone” may create a reasonable doubt — have been rejected (see, People v Miller, 35 NY2d 65 , 66, supra; People v Johnson, 6 AD2d 799 , affd 5 NY2d 1000 , supra).

The observation in Bouton that "the most impressive measure of the respect the law accords the community’s ability to judge character is that the reputation of an accused * * * may in and of itself give rise to a reasonable doubt of guilt where none would otherwise exist” (People v Bouton, 50 NY2d 130 , 139, supra) does not change the established rule that a jury is bound to assess the effect of defendant’s character evidence — if accepted and believed — in light of all the evidence in the case. As we have stated, "[character evidence does not exist in a vacuum, and its value, influence or the weight to be accorded it depends in great part upon the other evidence in the case. If accepted and believed, it becomes a fact to be weighed with the other facts. If the evidence of guilt against a defendant is cumulative and reliable, the influence of contrary evidence of good character is likely to be slight. Under other circumstances, such evidence may be so good, if

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believed, as to create a reasonable doubt where without it none would exist” (People v Miller, 35 NY2d 65 , 69, supra).

With respect to defendant’s contention that the court committed reversible error by confusing its instructions on character evidence with principles applicable to nonpredisposition evidence, the court delivered a supplemental charge on entrapment at defendant’s request, to which defendant registered no further objection. We have reviewed defendant’s remaining contentions and find them to be either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order affirmed.

Cases cited

People v. Colantone 243 NY 134 N.Y. 1926-06-08 p. 679
People v. Miller 35 NY2d 65 N.Y. 1974-07-11 at 67-68, at 66, at 69 p. 679, p. 680, p. 681, p. 682, p. 683
People v. Bouton 50 NY2d 130 N.Y. 1980-04-29 at 139, at 135 p. 679, p. 680, p. 681, p. 682
People v. McGee 49 NY2d 48 N.Y. 1979-12-17 p. 679, p. 680
De Canzio v. Kennedy 67 AD2d 111 N.Y. App. Div. 1979-04-06 p. 680
People v. Pomerantz 63 AD2d 457 N.Y. App. Div. 1978-07-31 p. 680
People v. Pomerantz 46 NY2d 240 N.Y. 1978-12-20 p. 680
People v. Tyler 62 AD2d 136 N.Y. App. Div. 1978-04-26 p. 680
People v. Rao 73 AD2d 88 N.Y. App. Div. 1980-02-25 p. 680
People v. Archer 68 AD2d 441 N.Y. App. Div. 1979-06-18 p. 680
People v. Archer 49 NY2d 978 N.Y. 1980-04-24 p. 680
People v. Cousart 58 NY2d 62 N.Y. 1982-12-14 p. 680
People v. Jorgensen 118 Misc 2d 310 Monroe Cty. Ct. 1983-03-17 p. 680
People v. Paccione 99 Misc 2d 1027 Nassau Cty. Ct. 1979-06-18 p. 680
People v. Brown 26 NY2d 88 N.Y. 1970-01-21 p. 680
People v. Settles 46 NY2d 154 N.Y. 1978-12-21 p. 680
People v. Josan 92 AD2d 902 N.Y. App. Div. 1983-03-14 p. 680
People v. Thompson 47 NY2d 940 N.Y. 1979-06-28 p. 680
Cancemi v. People 16 NY 501 N.Y. at 506 p. 680, p. 681
Remsen v. People 43 NY 6 N.Y. 1870-10-18 p. 680
Stover v. People 56 NY 315 N.Y. 1874-04-07 p. 680
Edgington v. United States 164 US 361 SCOTUS 1896-11-30 at 366-367 p. 680, p. 681
People v. Fuller 130 AD2d 840 N.Y. App. Div. 1987-05-14 p. 680
People v. Rodriguez 118 AD2d 878 N.Y. App. Div. 1986-03-31 p. 680
People v. Way 59 NY2d 361 N.Y. 1983-07-05 p. 680
People v. Cleague 22 NY2d 363 N.Y. 1968-07-01 p. 680
People v. Thomas 50 NY2d 467 N.Y. 1980-06-05 p. 680
People v. Patterson 39 NY2d 288 N.Y. 1976-04-01 p. 680
People v. Whalen 59 NY2d 273 N.Y. 1983-06-16 p. 680
People v. Hoke 62 NY2d 1022 N.Y. 1984-07-02 p. 680
People v. Wynn 108 AD2d 768 N.Y. App. Div. 1985-02-04 p. 680
People v. McLaughlin 104 AD2d 829 N.Y. App. Div. 1984-10-01 p. 680
People v. McDowell 9 NY2d 12 N.Y. 1961-01-12 at 14 p. 681
People v. Johhson 5 NY2d 1000 N.Y. 1959-03-05 p. 682