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PEOPLE STATE NEW YORK v. HERBERT S. SCHWARTZMAN (03/06/69)

COURT OF APPEALS OF NEW YORK 1969.NY.40733 <http://www.versuslaw.com>; 247 N.E.2d 642; 24 N.Y.2d 241 decided: March 6, 1969. THE PEOPLE OF THE STATE NEW YORK, RESPONDENT,v.HERBERT S. SCHWARTZMAN, APPELLANT People v. Schwartzman, 30 A.D.2d 917, affirmed. Counsel John Joseph Sutter for appellant. William Cahn, District Attorney (Henry P. De Vine of counsel), for respondent. Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Judge Burke dissents and votes to reverse and order a new trial in a separate opinion in which Chief Judge Fuld and Judge Keating concur. Author: Jasen


People v. Schwartzman, Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Judge Burke dissents and votes to reverse and order a new trial in a separate opinion in which Chief Judge Fuld and Judge Keating concur.

Author: Jasen

 This appeal presents a question involving the nature and extent of permissible cross-examination of a criminal defendant concerning crimes which are not charged in the indictment.

Defendant was the president of Safety Circuit Corporation which appears to have been in financial difficulty in 1964. Roslyn Gladstone purchased an account receivable of the corporation from defendant on September 25, 1964 for $1,000. Defendant signed a letter to Mrs. Gladstone representing that the receivable was unencumbered. Actually, defendant had previously assigned this account receivable to one Lester Balagur as security for a loan and Mrs. Gladstone was consequently unable to collect it. Defendant admitted during his direct testimony at trial that the account had been assigned twice. His only defense was that Mrs. Gladstone's husband acted as her agent and knew of the prior assignment. Mr. Gladstone testified for the defense, but denied that he knew of the prior assignment. Defendant was convicted after trial by jury of grand larceny in the first degree and sentenced to imprisonment for 2 1/2 to 5 years. The Appellate Division unanimously affirmed.

On appeal defendant contends that he was denied a fair trial because he was improperly cross-examined concerning other criminal acts. The record discloses that the cross-examination of defendant was extensive, and that the District Attorney attempted to impeach his credibility by inquiry into some 22 alleged similar instances of misconduct. The allegations of defendant's other misconduct involved numerous worthless checks, repeated mortgaging of a car which he did not own, sale of mortgaged property upon the misrepresentation that the property was unencumbered, wrongfully retaining money received as agent in the sale of a car, and refusal to return or pay for a valuable ring received from a jeweler on approval.

The nature and extent of cross-examination is subject to the sound discretion of the Trial Judge (Langley v. Wadsworth, 99 N. Y. 61, 63.) It is well settled that a defendant who chooses to testify may be cross-examined concerning any immoral, vicious, or criminal acts which have a bearing on his credibility as a witness. (People v. Webster, 139 N. Y. 73; Richardson, Evidence [9th ed.], § 510.) The offenses inquired into on cross-examination to impeach credibility need not be similar to the crime charged, and questions are not rendered improper merely because of their number provided they have some basis in fact and are asked in good faith. (People v. Sorge, 301 N. Y. 198, 200; People v. Alamo, 23 N.Y.2d 630.) Nor does a negative response by a defendant preclude further inquiry by the prosecutor in a legitimate effort to cause the defendant to change his testimony. Otherwise, a "witness would have it within his power to render futile most cross-examination." (People v. Sorge, supra, p. 201.)

All of the transactions concerning which defendant was cross-examined involve allegations of obtaining money by worthless checks or by other false representations and were, therefore, relevant to impeach his credibility as a witness. The inquiry into these transactions to impeach defendant's credibility, therefore, was within the range of the trial court's discretion.*fn1 (People v. Sorge, supra, pp. 201-202; People v. Casey, 72 N. Y. 393, 398-399.)

In addition to cross-examining the defendant as to these numerous previous criminal acts, the District Attorney also used documentary evidence to assist his examination. The use of this documentary evidence during cross-examination, the defendant maintains, constitutes impermissible use of extrinsic evidence on collateral matters.

The general rule is that a cross-examiner cannot contradict a witness' answers concerning collateral matters by producing extrinsic evidence for the sole purpose of impeaching credibility. (People v. Sorge, supra, p. 201; People v. McCormick, 303 N. Y. 403; People v. Duncan, 13 N.Y.2d 37; People v. Perry, 277 N. Y. 460; People v. Malkin, 250 N. Y. 185; Richardson, Evidence, supra, §§ 503, 510.) However, an exception to this rule exists where the evidence sought to be introduced is relevant to some issue in the case other than credibility or if independently admissible to impeach the witness. (3 Wigmore, Evidence [3d ed.], §§ 1003, 1004, 1021; CPLR 4513; State v. Gilmore, 42 Wn. 2d 624 [1953]; People v. Clark, 63 Cal. 2d 503, 505; Hanover Ins. Co. v. Johnson, 397 S. W. 2d 904 [Texas, 1965]; Commonwealth v. Heller, 369 Pa. 457, 463 [evidence of other offenses tending to prove motive can be used to contradict a defendant's answers on cross-examination]; 3 Wharton's Criminal Evidence [11th ed., 1935], § 1293; 98 C. J. S., Witnesses, § 633; cf. Attorney-General v. Hitchcock, 1 Exch. 91, 99; cf. Richardson, Evidence, supra, § 503; cf. comment, Use of Bad Character and Prior Convictions to Impeach a Defendant-Witness, 34 Fordham L. Rev. 107, 111-112 [1965]; cf. United States v. Herr, 338 F. 2d 607, 611 [7th Cir., 1964], cert. den. 382 U.S. 999.) The reason for this exception to the collateral evidence rule is evident from the policy considerations underlying the general rule. The collateral evidence rule is said to rest upon auxiliary policy considerations of preventing undue confusion of issues and unfair surprise by extrinsic testimony. (3 Wigmore, supra, §§ 979, 1002.) Also, testimonial errors concerning distant and unconnected points are of inferior probative value.

However, the objection of confusion of issues is inapplicable if the evidence sought to be introduced is admissible for any purpose other than contradiction. Likewise, it is not unfair to expect a party to refute testimonial errors when the subject of the error is a material issue in the case, for upon such subjects the parties should in any event come prepared. Therefore, the policy objections to the contradiction of a witness' answers are inapplicable if evidence of the fact contradicted would be admissible for any purpose independent of the contradiction. It follows that a fact is not a collateral matter if it could be shown in evidence for any purpose independent of the contradiction. (State v. Gilmore, supra ; People v. Clark, supra; United States v. Herr, supra ; 3 Wigmore, supra, §§ 1003, 1004, 1021.)

Thus, when a witness testifies concerning a fact material to the case, he may be contradicted either by cross-examination or by introduction of other evidence. (Wells v. Kelsey, 37 N. Y. 143; Hynes v. McDermott, 82 N. Y. 42, 52; Becker v. Koch, 104 N. Y. 394; Carlisle v. Norris, 215 N. Y. 400, 410; 1 Mottla, New York Evidence, Proof of Cases [2d ed., 1966], § 431; 3 Wigmore, supra, §§ 1003, 1004, 1021; 3 Wharton's Criminal Evidence, supra, § 1293; 98 C. J. S., Witnesses, supra, § 633; People v. Gilmore, supra ; People v. Clark, supra.) Also, evidence of other crimes has long been held admissible to establish the motive or intention of a defendant. (People v. Molineux, 168 N. Y. 264; People v. Dales, 309 N. Y. 97.) It follows that where intention to defraud is an essential element of the crime charged, such as here, evidence competent to establish criminal intention is not a collateral matter with respect to cross-examination. (State v. Gilmore, supra ; People v. Clark, supra ; 3 Wigmore, supra, §§ 1003, 1004, 1021; Commonwealth v. Heller, supra.)

The issue, therefore, narrows to whether defendant's answers on cross-examination were contradicted, and, if so, whether the evidence used to impeach his answers was admissible for any purpose independent of the contradiction.

Nine documents relating to seven distinct transactions were utilized in the cross-examination of defendant. Defense counsel did not object to the use of two memoranda relating to defendant's refusal to return or pay for a valuable ring which he received from a jeweler on approval. Documents relating to an assignment of letters patent were also used. Defendant admitted the transaction, but the trial court halted the cross-examination concerning this transaction because the prosecution had failed to prove any wrongdoing.

The transactions to which defendant objected to the use of documentary evidence during cross-examination are five -- three instances of defendant's mortgaging a 1962 Cadillac which he did not own and two examples of passing worthless checks. However, a close examination of the record reveals that defendant admitted all but one transaction during cross-examination -- that of a chattel mortgage of a 1962 Cadillac to one Florence Goldfarb. Concerning this one transaction, defendant first admitted during cross-examination that he gave the chattel mortgage, and defense counsel stipulated that defendant received $4,000 from Florence Goldfarb for the chattel mortgage when in fact he did not own the car. Defendant then repudiated his counsel's stipulation, stating that he did not obtain $4,000 from Florence Goldfarb, but that the chattel mortgage was to Hy Gold or Hy Goldfarb. At this juncture, defendant basically admitted the transaction, but questioned the identity of the mortgagee. His answers, however, were highly evasive and the prosecutor handed him a copy of the chattel mortgage. Defendant then admitted that the signature on the mortgage was similar to his own, but denied signing the exhibit. He was shown the original chattel mortgage at the conclusion of his cross-examination, but also denied signing the original document.

As to this one transaction which defendant denied, we conclude that the use of a copy and the original of the chattel mortgage during cross-examination does not constitute improper impeachment on a collateral matter since the documents not only impeached defendant's credibility, but were also independently admissible ...


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