Argued January 10, 1975
Decided February 25, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, WILLIAM T. COWIN, J.
William Sonenshine for appellant. Eugene Gold, District Attorney ( J. Mitchell Rosenberg of counsel), for respondent.
It was error to prohibit defendant from offering rebuttal evidence to explain some of the bank accounts about which he testified and made admissions on cross-examination. The collateral issue rule would bar the adversary from offering contradictory proof, but should hardly bar the party who makes what appears to be admissions on cross-examination from explaining them. However, in view of the all but conclusive proof of defendant's guilt, the error was harmless, and there should be an affirmance under the statutory harmless error rule (CPL 470.05, subd. 1).
Enough of the facts are described in the dissenting opinion so that it is not necessary to repeat or add to them except as required to relate the discussion which follows.
One may agree with much, if not all, of the analysis in the dissenting opinion, and yet not agree with its conclusion. It is true that any error in a criminal case in which the error-free proof supports a verdict of guilty beyond a reasonable doubt may nevertheless be harmful. It is not true, however, that every error on an issue relevant to the case must be harmful. Otherwise, the statute and the "harmless error" rule would apply only to an absurd category, namely, errors committed as to irrelevant or immaterial matters. It is difficult to conceive of such an "error" and yet that the ruling should indeed be an error.
While it would not be useful in this case to enlarge on the scope of harmless error, it is enough to elaborate on this instance of the rule's application. (For a restatement of the harmless error rule see People v. Crimmins, 36 N.Y.2d 230.) The evidence and testimony excluded did not relate directly to any fact or element of the crimes charged involving drug transactions. The excluded evidence became relevant only because the prosecution in cross-examination of defendant on a concededly collateral matter educed partial admissions of a collateral fact, that is, unusually large cash resources owned or available to defendant, a person of limited income.
The prosecution could not have offered independent evidence to disprove the correctness of any of defendant's denials just because they resulted from the exploration of the collateral issue (Richardson, Evidence [10th ed.], § 491). It was this rule which impelled the trial court to exclude defendant's offer to explain his admissions, not his denials, because related to a collateral issue. The rule was thus stretched beyond its proper reach and prevented defendant from explaining by independent evidence the partial admissions on his cross-examination.
Again, the collateral issue rule bars the cross-examiner from offering evidence contradicting the cross-examined party on a collateral issue; it does not or should not bar the cross-examined party from explaining his admissions or offering, within reason, proof from others to explain his partial admissions.
Aside from overwhelming evidence of guilt, the error was harmless for another reason. The excluded evidence would have explained only a part of the bank accounts to which defendant had access. Thus, even if the excluded evidence had been received it would still have left defendant with access to unexplained substantial cash resources not referable to his admitted income.
Apart from the strong prosecution evidence against defendant, a probationary policeman, of the sale of 50 packets of heroin to a police officer for $170, defendant admitted that after his arrest narcotics were found in his possession. His implausible explanation was that he had taken some from youngsters in a park and found the rest on the ground, and had not yet had a chance to advise his sergeant.
On this view, the conclusion to hold that the erroneous exclusion was harmless is quite consistent with the obviously sound view that harmlessness of error is not to be found merely by balancing the evidence in favor of and against the defendant (see People v. Crimmins, 36 N.Y.2d 241, supra).
Accordingly, the order of the Appellate Division should be affirmed.
The issue in this case is not whether defendant's guilt was proved beyond a reasonable doubt, which it was, but whether he was denied a fair trial, which I believe he was. As in so many of the criminal cases confronted by appellate courts, the question we must answer is whether the manner in which a conviction was obtained is consistent with fundamental principles of fairness which lie at the heart of our system of criminal justice. (See dissent in People v. Crimmins, 36 N.Y.2d 243.)
I agree with the majority of this court that it was error to prohibit defendant from offering rebuttal evidence to explain the existence of some of the bank accounts about which he testified on cross-examination, but disagree over the consequences of that error.
The effect of the testimony elicited upon cross-examination of defendant was to demonstrate to the jury that, as a probationary police officer, earning approximately $9,000 per year and contributing approximately $80 per month to the support of his mother and sister, he had accumulated "over $45,000" in bank accounts in his name. Defendant professed to have no knowledge of these accounts and expressed shock and surprise at their existence. When defense counsel attempted to put defendant's mother on the stand, the prosecutor successfully objected to her testimony as "not competent". Thereafter, counsel made an offer of proof that defendant's mother, if permitted, would testify to the circumstances surrounding the deposits in three of the accounts mentioned. The prosecutor objected that "the issue is totally collateral" and was sustained, the court having previously stated: "You cannot put a witness on, on a collateral matter that has already been decided [ sic]. I will not permit you to do it."
Defendant was thus effectively prevented from explaining the source of these large amounts of money of which he claimed to have no personal knowledge. The clear implication of this evidence was that these several bank accounts contained the fruits of defendant's extracurricular activity of trafficking in illicit drugs. Lest the inference prove too much for the jury, the prosecutor, in summation, emphasized it thus: "He is a defender and he spreads this garbage, this vermin, this disease. That is what he lives on. That is what this whole case is about" (emphasis supplied).
The only real issue in this case was credibility, the defendant attempting to explain his actions in a manner consistent with innocence, while the People attempted to prove that he was involved in the sale of narcotics. The unexplained existence of large sums of money in several bank accounts in his name surely must have had an impact upon the jury in their assessment of his credibility, aside from providing some circumstantial evidence of guilt.
It is not for this court to speculate whether, even with the proffered explanation of the innocent source of this money, the verdict would have remained unchanged ( People v. Mleczko, 298 N.Y. 153, 162). It is significant, however, that the unexplained testimony materially strengthened the People's case. What the court said in People v. Mleczko ( supra, p. 162) is instructive in determining whether the error was technical or whether it affected defendant's substantial rights (CPL 470.05, subd. 1):
"An appellate court is directed to disregard `technical errors * * * which do not affect * * * substantial rights' (Code Crim. Pro., § 542). Manifestly, the Legislature could never have purposed that the court should regard errors as technical, no matter how grave or substantial they may be, upon the hypothesis that, in any event, the jury correctly decided the case. Such a course would tend to abolish `all forms of law taught by experience to be necessary to the protection of the innocent'. ( People v. Marendi, 213 N.Y. 600, 619, supra.) What the Court wrote in that case some years ago is just as true today: `where prejudicial matter is erroneously received in evidence on a disputed question of fact, its harmful character cannot be determined solely by the mere weight of competent evidence unless we are to resolve ourselves into a jury and, ignoring the finding upon incompetent evidence, substitute one upon the evidence which we may deem competent.' ( People v. Marendi, supra, p. 619; see, also, People v. Pignataro, 263 N.Y. 229, 240, supra; People v. Sobieskoda, 235 N.Y. 411, 420.)
"Though there may be no yardstick to measure error and differentiate between the technical and the substantial, an underlying and controlling principle is at hand. If study of the case on appeal persuades the court that the minds of the jurors were clearly directed to the true issue involved, that they were not misled or confused to defendant's detriment, then the mandate of section 542 should be followed — even though the appellate judges may disagree with the verdict at which the jury arrived. On the other hand, if the court believes that the errors may have misled the jury, may have influenced the verdict, then the error may not be deemed technical, and a reversal will follow — even though the court may conclude that the jury properly decided the case on the evidence adduced." (Emphasis supplied.)
Excessive reliance on the existence of other proof of guilt, in the face of clearly prejudicial error, could lead to harm for it would seem to encourage an overly zealous prosecutor with a strong case to gratuitously prejudice defendant's rights by unfair tactics in an attempt to insure conviction. It is important to the proper administration of justice that appellate sanctions remain an ever-present deterrent to restrain an excessively eager prosecutor from casting caution (and defendant's rights) to the winds in the performance of his difficult duties. Applying the "harmless error" doctrine with too broad a sweep would remove one of the chief deterrents to overreaching by a prosecutor. The sparing use of that doctrine is essential to compel respect for the constitutional guaranty of a fair trial — by removing the incentive to disregard it (cf. Elkins v. United States, 364 U.S. 206, 217). Additionally, the application of the harmless error doctrine is particularly inappropriate in this case as it comes perilously close to announcing a "doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant's guilt" ( People v. Mleczko, supra, p. 163; People v. Mirenda, 23 N.Y.2d 439, 447; People v. Steinhardt, 9 N.Y.2d 267).
Since the conceded error here may well have influenced the verdict, it cannot be treated as harmless. I would therefore reverse the order and grant a new trial.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and WACHTLER concur in Per Curiam opinion; Judge COOKE dissents and votes to reverse in a separate opinion in which Judge FUCHSBERG concurs.