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explaining that "a false alibi may be due not to consciousness of guilt of the crime charged but to consciousness of some incriminating evidence and the justifiable desire to remain free"
Summary of this case from Jones v. StateOpinion
Argued September 7, 1984
Decided October 16, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Michael J. Dontzin, J.
Stuart M. Cohen for appellant. Robert M. Morgenthau, District Attorney ( Debora K. Grobman and Amyjane Rettew of counsel), for respondent.
Defendant's false alibi, standing alone, is in the circumstances presented insufficient to corroborate the testimony of an accomplice, the only direct evidence on which defendant was convicted of felony murder and robbery. The order of the Appellate Division should therefore be reversed, and the order of the trial court dismissing the indictment as to defendant reinstated.
On December 20, 1978, Arthur K. Watt, a young serviceman stationed at Fort Leonard Wood in Missouri, flew to New York to spend Christmas with his family. On his way home, he stopped at a bar in upper Manhattan and from there went to a vacant apartment at 2725 Eighth Avenue with other patrons of the bar, where he was robbed, stabbed and strangled. Officials discovered his partially burned body the next morning. Charged with this brutal murder, defendant proceeded to trial and rested without presenting any evidence, insisting that the prosecution had failed to corroborate the testimony of its chief witness, Lynette Baker, defendant's former girlfriend and an admitted accomplice to the crime.
According to Baker, who was also charged with the crime but testified in exchange for leniency, at a few minutes after 1:00 A.M. on December 21, 1978, she met her friend James Greer in a bar on Eighth Avenue. Also present in the bar was codefendant Cornell Alston, who was "like a brother" to her. Greer and Baker left the bar shortly before 2:00 A.M. and went to a grocery store across the street to buy cigarettes and beer. Upon emerging from the store, Baker met Alston, who was carrying a duffel bag, and she observed defendant standing behind a door in the hallway of the apartment building at 2725 Eighth Avenue.
Baker testified that, in exchange for her testimony, she had been promised that she could be sentenced to probation.
As Baker further testified, she and Greer then parted, Greer going home and Baker walking over to defendant, who by this time had been joined by Alston and Watt. When Jerome McEachin subsequently arrived, Alston and Watt went upstairs. A few minutes later, the others followed and the group gathered in a vacant apartment on the third or fourth floor. They talked and drank beer and Watt gave Alston some money to buy marihuana. When Alston left to make the purchase, according to Baker, defendant suddenly grabbed Watt and choked him as McEachin and Baker went through his pockets. McEachin took some travelers checks and began punching Watt when he said he had no cash. Alston returned during the robbery and he and defendant brought Watt into another room, leaving Baker and McEachin in the kitchen. Baker testified she heard defendant or Alston say they had to "take him out" because he knew their names. She saw Alston stab Watt twice, and defendant and Alston then strangled Watt. After leaving the building, Baker, Alston and defendant went to Napoleon Loder's house in The Bronx. Defendant, who by this time had obtained Watt's travelers checks, gave them to Alston. Baker testified that Alston subsequently told her he had used the checks at Alexander's to purchase a snorkel jacket and turtleneck sweater. The People also called Baker's friend James Greer, who testified that he had met Baker in the bar at about 1:00 A.M. and noticed Alston, McEachin and the young soldier. While he went to the grocery store with Baker upon leaving the bar, he did not see defendant either in the bar or on the street.
Another prosecution witness, Margaret Jennings, who lived in the apartment across the hall from apartment 4S (the crime scene) testified that at 11:00 P.M. on December 20, at least three hours before the crime, she saw defendant leaving apartment 4S. She did not see him again that night. At about 1:00 A.M., she heard noises in the hall and, when she opened her door to investigate, saw Alston carrying a duffel bag. Alston said he came to get in out of the rain and would cause no trouble. Jennings' son, Melvin Herman, testified that he left the apartment after midnight to purchase cat food and, on his way out, saw two black men on the front stoop, one tall and the other short. But he could not identify defendant or Alston.
The prosecution also introduced defendant's videotaped statement, made after his arrest on January 31, 1979, in which he said that he had spent the entire evening of the crime at 2300 Lawrence Place in The Bronx, where he lived with Loder. Defendant said he was not in Manhattan at all on the day of the crime and had never been in the abandoned building. Defendant also said he had purchased Christmas decorations at Alexander's.
Finally, on the subject of the travelers checks, the People presented Grady Houston, Alston's friend and former employer, who testified that he had arranged for Alston to cash three of the travelers checks at a local market, and the People introduced other checks belonging to Watt that had been cashed at Alexander's. A handwriting expert testified that the signatures on the checks were forged but he could not determine the identity of the forger.
Following the People's case, defendant moved to dismiss the indictment because the accomplice's testimony was insufficiently corroborated. The court reserved decision and defendant rested without presenting any evidence. The jury convicted both defendant and Alston of felony murder and third degree robbery.
The trial court subsequently granted the motion to dismiss, finding Baker's testimony inadequately corroborated. Commenting on Baker's credibility, Justice Dontzin "found the quality of her testimony to be appalling, contradictory and inconsistent with prior statements given to law enforcement." He "perceived her testimony to be motivated on the one hand, by a natural desire to avoid going to jail, and on the other hand, by her open hostility to Moses, who was her former lover and boy friend." To allow the guilty verdict to stand, said the court, "runs a grave risk that an innocent man has been convicted."
Though believing the issue to be "close," the Appellate Division reversed and reinstated the conviction. The majority found that the only evidence corroborating Baker's testimony was defendant's false alibi, which betrayed a consciousness of guilt. Relying primarily on People v Deitsch ( 237 N.Y. 300), the court concluded that this evidence was sufficient. Two concurring Justices found corroboration not only in the false alibi but also in defendant's presence at the abandoned apartment earlier in the evening, his admission that he had gone to Alexander's, Melvin Herman's testimony that he saw two men on the front stoop of the building, and James Greer's testimony concerning his date with Baker and his failure to see defendant on the street. While we agree with the majority that the only evidence arguably corroborative of Baker's testimony is the false alibi, we do not agree that it was sufficient to meet the statutory requirement of corroboration.
As this court has noted, the law views the testimony of an accomplice with a "suspicious eye" ( People v Berger, 52 N.Y.2d 214, 218; People v Duncan, 46 N.Y.2d 74, 78-79, cert den 442 U.S. 910; see, also, People v Dory, 59 N.Y.2d 121, 128). Especially where circumstances suggest that the motivation behind an accomplice's testimony may have been to curry favor with the prosecution and receive lenient treatment, accomplice testimony lacks the inherent trustworthiness of testimony of a disinterested witness ( People v Daniels, 37 N.Y.2d 624, 629; People v Kress, 284 N.Y. 452, 459). Accordingly, accomplice testimony is regarded with "the utmost caution" ( People v Berger, 52 N.Y.2d 214, 219, supra). Particular scrutiny is appropriate here, where the accomplice testified under a promise of leniency and where the Trial Judge, who had the advantage of observing the witness, noted the inconsistency of her testimony and her hostility toward her former boyfriend, and expressed his fear that an innocent man stood convicted.
CPL 60.22 (subd 1) prohibits a conviction "upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission" of the crime. The corroboration must consist of "evidence from an independent source of some material fact tending to show that defendant was implicated in the crime" ( People v Kress, 284 N.Y. 452, 460, supra). It need only "connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth" ( People v Daniels, 37 N.Y.2d 624, 630, supra). Matters of seeming insignificance "may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between defendant and the crime" ( People v Dixon, 231 N.Y. 111, 117). But where the corroboration has no " real tendency to [provide such connection], it is insufficient" ( People v Kress, 284 N.Y. 452, 460, supra; People v Wasserman, 46 A.D.2d 915).
On this appeal, the People point to three evidentiary bases as satisfying the requirement for corroboration: defendant's admitted visit to Alexander's, his presence in the abandoned apartment three or more hours before the crime, and his false alibi.
The People do not rely on the testimony of Melvin Herman or James Greer, as did the concurring Justices in the court below. We agree that these witnesses provided no corroboration. Herman's description of the men on the stoop was too vague to support an inference that defendant was one of them. Similarly, Greer's testimony that he did not see defendant, though not contradicting Baker's testimony that defendant was hiding, is in no sense corroborative of defendant's presence.
Defendant's admission that he went to Alexander's neither constitutes nor contributes to the requisite corroboration. First, the transcript of defendant's videotaped statement does not support the People's reading of it as an admission of his presence at Alexander's on Thursday, December 21, when four of Watt's travelers checks were cashed at Alexander's. Though defendant initially in this statement expressed some confusion regarding dates, he stated unequivocally that he went to Alexander's on Wednesday, December 20, the day before the crime: "Wednesday I made fourteen dollars and change. I told you I went to Alexander's and I bought decorations. That was Wednesday". Later, defendant said, "Wednesday during the day I went out because I was washing cars * * * Then I went shopping at Alexander's." Second, even if defendant's admitted visit to Alexander's could be read to have occurred on Thursday, December 21, still this would have not been corroborative evidence. The testimony at trial does not permit the inference that defendant used the checks, Baker herself having testified that Alston used the checks; it does not establish that defendant and Alston were together at Alexander's; and it does not even reveal whether the two men went to the same Alexander's branch. Thus, defendant's visit to Alexander's established no nexus with the criminal activity (see People v Nieto, 97 A.D.2d 774), and must be disregarded as corroboration.
Nor is CPL 60.22 satisfied by Jennings' testimony that she saw defendant at the scene of the crime three or more hours before its commission. Presence at the scene of a crime may provide the necessary corroboration where, for example, "there was no plausible hypothesis therefor other than that the defendant was a likely participant in the criminal transaction, or, even if there were an innocent explanation therefor, if the circumstances of the crime itself were otherwise such as to import corroborating significance" ( People v Hudson, 51 N.Y.2d 233, 240, n; People v Tillotson, 63 N.Y.2d 731; see, also, People v Wasserman, 46 A.D.2d 915, supra). Thus, even independent evidence of a defendant's presence at the scene of a crime at the time of its commission may not invariably corroborate an accomplice's accusation ( People v Lanza, 57 N.Y.2d 807, revg on dissent 83 A.D.2d 714; People v Hudson, 51 N.Y.2d 233, 240, supra). But where the independent evidence establishes defendant's presence at the scene of a crime at a time other than when it was committed, it is all the more difficult to invest it with corroborative significance (cf. People v Kress, 284 N.Y. 452, supra; People v Nieto, 97 A.D.2d 774, supra; People v Horton, 61 A.D.2d 1082). Here, defendant's presence at the abandoned apartment at least three hours before the crime did not itself tend to connect him with the commission of the crime. There is no evidence that, at the time of defendant's presence, the apartment was in any way associated with the criminal enterprise. Moreover, by the prosecution's own evidence, apartment 4S had previously been used by various people, including defendant, to drink and smoke marihuana, so that his presence there was hardly unusual.
The question then is whether defendant's false alibi, by itself, corroborated Baker's testimony. A false alibi falls into the category of evidence, including flight and analogous conduct, considered indicative of consciousness of guilt and thus of guilt itself. (See People v Reddy, 261 N.Y. 479, 486.) Evidence thought to bear on consciousness of guilt has traditionally been considered weak because an innocent person may attempt to extricate himself from a situation by denying incriminating evidence even though he knows it can be truthfully explained or by fleeing from an accuser because of fear of wrongful conviction. Thus, a false alibi may be due not to consciousness of guilt of the crime charged but to consciousness of some incriminating evidence and the justifiable desire to remain free (see People v Benzinger, 36 N.Y.2d 29, 33-34; People v Yazum, 13 N.Y.2d 302; People v Leyra, 1 N.Y.2d 199; People v Reddy, 261 N.Y. 479, supra).
While such evidence may corroborate the testimony of an accomplice ( People v Leyra, 1 N.Y.2d 199, 208, supra), even in corroboration cases the court has found some nexus between the defendant and the criminal activity apart from the bare evidence of consciousness of guilt. In People v Deitsch ( 237 N.Y. 300, supra), for example, the independent evidence established defendant's presence at the scene of the crime moments before its commission. Defendant's false denial of presence in those circumstances permitted the inference that his presence there, at that time, was not innocent. Thus, it was the combination of defendant's presence at the scene and the false denial which the majority found sufficient (see, also, People v Glasper, 52 N.Y.2d 970; People v Ruberto, 10 N.Y.2d 428; People v McGuire, 135 N.Y. 639). Here, by contrast, there was no evidence that defendant's presence in apartment 4S hours before the crime was even contemplated was anything but innocent, and thus there is no basis for an inference from his denial that his presence there was a guilty presence.
Where an accomplice's testimony is bolstered only by evidence of consciousness of guilt, this court has been reluctant to find the necessary corroboration. In People v Reddy ( 261 N.Y. 479, supra), two men committed a robbery/murder and the question came down to whether the accomplice's incriminating testimony was adequately corroborated by the defendant's flight from parole authorities. The court determined that even if there were a connection between the defendant's flight and the commission of the crime, it was "so inherently weak and inconclusive as to furnish no reasonable ground for a finding by the jury that the accomplice was telling the truth" ( id., at p 488). We reach the same conclusion today. The bare evidence of consciousness of guilt, in the circumstances of this case, was so inherently weak that it did not satisfy the corroboration requirement of CPL 60.22. Accordingly, the order of the Appellate Division should be reversed and the order of the trial court dismissing the indictment as to defendant reinstated.
Chief Judge COOKE and Judges JONES, MEYER and SIMONS concur with Judge KAYE; Judge JASEN dissents and votes to affirm in a separate opinion; Judge WACHTLER taking no part.
Order reversed and order of Supreme Court, New York County, reinstated.
Regrettably, the majority continues the undeviating and distinctive drift away from the intended narrow function of New York's accomplice corroboration rule.
Prior to the 1881 enactment of the accomplice corroboration rule (Code Crim Pro, § 399, from which CPL 60.22, subd 1, is derived), New York followed the common-law view that although the uncorroborated testimony of an accomplice should be received with caution, a conviction would stand exclusively upon the basis of such evidence. ( People v Doyle, 21 N.Y. 578.) Indeed, accomplice testimony was embraced at common law and various colonial statutes provided incentives for defendants to give testimony against codefendants by offering pardons and rewards. (See Act of Assembly, Nov. 25, 1751, 3 Col Laws of NY, p 856; Act of Assembly, March 24, 1772, 5 Col Laws of NY, p 353.) As an act in derogation of the common law, section 399 of the Code of Criminal Procedure was necessarily accorded a strict construction by 19th century courts. For example, this court, when called upon to determine whether accomplice testimony was sufficiently corroborated as required by the relatively recent statute (Code Crim Pro, § 399), noted that the point was "fully answered by our decision in the Jaehne Case [ People v Jaehne, 103 N.Y. 182]". ( People v O'Neil, 109 N.Y. 251, 267.) In People v Jaehne ( 103 N.Y. 182, 199-200, supra), the court, faced with the sufficiency of accomplice corroboration of a confession, held the confession to be corroborated by only slight corroborating facts. Thus, by this court's analogy to the standards necessary to uphold a confession, it was early held that corroboration of accomplice testimony is achieved by a very slight factual showing, and the adequacy of such showing is reserved for jury consideration.
In a majority of sister State jurisdictions, the uncorroborated testimony of an accomplice will support a criminal conviction. ( State v La Fountain, 140 Conn. 613; Tramill v State, 425 A.2d 142 [Del]; Jalbert v State, 95 So.2d 589 [Fla]; State v Lincoln, 3 Hawaii App 107; People v Pittman, 93 Ill.2d 169; Smith v State, 455 N.E.2d 346 [Ind]; State v Roth, 207 Kan. 691; Murphy v Commonwealth, 652 S.W.2d 69 [Ky], cert den 465 U.S. ___, 79 L ed 2d 751 [three Justices dissenting]; State v Matassa, 222 La. 363; State v Sawyer, 314 A.2d 830 [Me]; Commonwealth v Stewart, 375 Mass. 380 [conviction may be based on the uncorroborated testimony of accomplice, provided the accomplice has not been formally granted immunity]; People v Dukes, 120 Mich. App. 662; Gandy v State, 438 So.2d 279 [Miss]; State v Moore, 642 S.W.2d 917 [Mo]; State v Huffman, 214 Neb. 429; State v Thresher, 122 N.H. 63; State v Butler, 32 N.J. 166; State v Gutierrez, 75 N.M. 580; State v Lester, 294 N.C. 220; Commonwealth v Hudson, 489 Pa. 620; State v DeMasi, 413 A.2d 99 [RI]; State v Steadman, 257 S.C. 528; Johnson v Commonwealth, 224 Va. 525; State v Johnson, 77 Wn.2d 423; State v Vance, 262 S.E.2d 423 [W Va]; Ostrowski v State, 665 P.2d 471 [Wyo].) It is not coincidental that of the 21 States which had required corroboration of accomplice testimony in 1954, 15 States had restricted the Judge's charge by constitutional provision, statute or case law to forbid the Judge from commenting upon the weight of such testimony to the jury. (Note, The Rosenberg Case: Some Reflections on Federal Criminal Law, 54 Col L Rev 220, 235.) It should be noted that it is the rule in Federal courts that a person accused of a crime may be convicted solely upon the uncorroborated testimony of an accomplice. (See, e.g., United States v Wright, 573 F.2d 681, cert den 436 U.S. 949; United States v Trevino, 565 F.2d 1317, cert den 435 U.S. 971.) The widespread rejection of the corroboration requirement reflects a dissatisfaction with a rule of evidence which arbitrarily determines, in advance of testimony, in ignorance of the circumstances, and without considering demeanor, that an accomplice is not credible. (See State v Litchfield, 58 Me. 267, 270; State v Betsall, 11 W. Va. 703, 741.)
The accomplice corroboration rule has long been the subject of criticism in New York. In 1939, for example, the Commission on the Administration of Justice, established by chapter 79 of the Laws of 1939, urged the repeal of the corroboration requirement and observed: "Present section 399 providing that a conviction cannot be had upon the uncorroborated testimony of an accomplice, has been deleted. The Commission was strongly of the opinion that this section in the present Code is a refuge of organized crime and protects the principals in racketeering cases. The deletion of this provision will remove the present anomalies in the law arising from statutory exceptions and court decisions relating to the question as to who is an accomplice, such as the rule that a thief and a receiver are not accomplices. The Commission carefully considered the possibility that the deletion of this provision might encourage frame-ups and related abuses, but was strongly of the opinion that such would not be the case. The deletion of this provision merely restores the common law and permits the trial court to give appropriate instructions in each case affecting the credibility of the testimony offered instead of binding the court to the general rule prescribed by the statute." (Emphasis added.) (NY Legis Doc, 1939, No. 76, p 124.) This view was reiterated 40 years later ( People v Cona, 49 N.Y.2d 26, 37-47 [Jasen, J., dissenting]) and is restated today, with emphasis added.
Bearing in mind that CPL 60.22 is satisfied by corroboration evidence which tends to connect the defendant with the crime in such a way that the jury is reasonably satisfied that the accomplice is telling the truth, and such corroborative evidence need not exclude to a moral certainty every hypothesis but that of wrongdoing ( People v Daniels, 37 N.Y.2d 624, 630), I turn to the facts of this case.
On December 20, 1978, Arthur K. Watt, a young serviceman, arrived in New York City to spend Christmas with his family after serving his first six weeks in the Army at Fort Leonard Wood, Missouri. On his way home, Watt stopped at a bar located in upper Manhattan, a few blocks from his mother's house. With other patrons of the bar, he went to a fourth floor apartment at 2725 Eighth Avenue. In the early morning hours, the Fire Department arrived to investigate smoke emanating from the fourth floor apartment. Arthur Watt's body was discovered in the apartment. He was found lying face up in the living room, his hands tied behind his back, with an electric cord at his feet. He had been stabbed six times, and a tie had been knotted around his neck tightly enough to strangle him. There were burns covering most of his body from a fire that had been set by scattering a flammable liquid on and around his body.
Defendant was implicated as a participant in the barbarous murder of Watt by the testimony of an accomplice, Lynette Baker. Baker's detailed description of the manner in which Watt was killed was mirrored by the observations of the fire marshal and detective upon investigation at the scene of the crime. In order to corroborate this accomplice testimony, the People introduced the testimony of Margaret Jennings, who lived in the apartment across the hall from the situs of the killing. Jennings testified that at approximately 11:00 P.M., she had seen the defendant leaving the apartment in which the murder was to occur three or four hours later. Baker testified that defendant had used the apartment on other occasions in the past. In addition, the People introduced defendant's videotaped statement to the Assistant District Attorney, which was recorded the night defendant was arrested. In this statement, defendant denied any involvement in the murder. He acknowledged that he knew the building where the murder took place, but he claimed he had never been in it. He also claimed that he had not been in Manhattan the entire week of the murder. Defendant insisted that he had spent that week in The Bronx.
In People v Dixon ( 231 N.Y. 111, 116), this court spoke to the requirement that accomplice testimony be corroborated, and noted: "The `other evidence' must be such `as tends to connect defendant with the commission of the crime.' The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime * * * It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth. The corroboration is not restricted to any particular point. Its connection with defendant's own statements and denials should be considered."
Matters in themselves of seeming indifference or light trifles of time and place may so harmonize with the accomplice's narrative as to have a tendency to furnish the connection between the defendant and the crime. ( People v Dixon, 231 N.Y. 111, 117, supra.) It may be said that while each of the particulars of independent corroborative evidence, taken separately and without reference to the accomplice's testimony, is innocuous and nonindicative, the cumulative effect of the sum of the particulars establishes the requisite corroboration. A mode of evaluation which views each element of the corroborative evidence in a vacuum, without regard to the entire record, constitutes an erroneously high legal standard. It has been established that evidence corroborative of accomplice testimony is to be viewed cumulatively, in light of the entire record. ( People v Hudson, 51 N.Y.2d 233; People v Glasper, 52 N.Y.2d 970; People v Dory, 59 N.Y.2d 121, 129; see, also, Mitchell v State, 650 S.W.2d 801 [Tex].)
In my view, the independent testimony establishing defendant's presence at the scene of the crime, shortly before the murder in the vacant apartment, contradicts the videotaped statement by defendant that he was not in Manhattan the night of the murder and contradicts defendant's statement that he was never in the apartment building where the murder occurred, all of which tend to corroborate the accomplice testimony. By contradicting defendant's videotaped statement, the corroborating testimony did more than place defendant in Manhattan and in the apartment building, since it specifically pinpointed defendant's presence at the very apartment in which the killing was to occur, on the night of such occurrence. Moreover, the independent corroborating testimony could be credited as showing that defendant attempted to fabricate a false alibi. When viewing the establishment of defendant's presence at the apartment in which the murder occurred, together with defendant's attempt to completely divorce himself from the Borough of Manhattan and the apartment building in question by means of a false alibi, the cumulative effect justifies the inference that his presence at the vacant apartment the night of the murder was a guilty presence.
In People v Deitsch ( 237 N.Y. 300, 303), this court held that presence is relevant on the issue of corroboration where the defendant denies his presence and denial is proved false. People v Deitsch ( supra) has unequivocally established that where, as here, presence at the situs of the crime is established by independent, credible evidence, and this fact is coupled with a false denial of presence, accomplice testimony implicating defendant in the crime is sufficiently corroborated. (Accord People v Gorski, 236 N.Y. 673; People v McGuire, 135 N.Y. 639, 641.) The defendant's false story, evincing as it does a consciousness of guilt, constitutes the essential corroborative evidence for accomplice testimony. ( People v Ruberto, 10 N.Y.2d 428, 430; People v Leyra, 1 N.Y.2d 199, 208.) In the instant case, the false alibi represents an expressed, unambiguous and affirmative effort by defendant to sever any connection between himself and the scene of the crime by his statement that he was never in the apartment building. Once defendant has been placed at the scene of the crime, and the jury found that he had lied about such presence, whether such presence was remote from or in close temporal proximity to the time of the murder is a question of degree to be evaluated by the jury.
We are not afforded the benefit of defendant's explanation of the inconsistency between his videotaped statement and the independent testimony of Margaret Jennings, as the defendant did not take the stand and the defense did not present evidence. If this case was tried in California, a staunch supporter of the accomplice corroboration rule, defendant's failure to testify would add weight to the corroborating evidence. ( People v Keene, 128 Cal.App.2d 520; People v Goldstein, 136 Cal.App.2d 778, 790 ["It is nevertheless persuasive, lending weight to the evidence presented by the prosecution upon matters presumptively within defendant's knowledge, and which if untruly stated would normally be denied by him"].)
For all those reasons, I would affirm the order of the Appellate Division.