People v. Colarco

OPINION OF THE COURT

Silverman, J.

Defendant appeals from a judgment of Supreme Court, Bronx County, convicting him after jury trial of two counts of robbery in the first degree, and a count of attempted robbery in the first degree, and sentencing him to concurrent indeterminate terms of imprisonment of 7 to 21 years and 5 to 15 years.

There are involved here three knife-point robberies, or attempted robberies, of women in elevators of apartment buildings at Co-op City.

The point that divides the court relates to the propriety of the cross-examination of defendant’s alibi witness—his mother-in-law—who testified that defendant was with her at the time of two of the three robberies.

As our colleague Justice Sandler points out in his dissent, the questioning and the scope of cross-examination with respect to disclosure of alibi by the alibi witness have been the subject of much recent discussion. In our view cross-examination of alibi witnesses is not much different from cross-examination of other witnesses. There are few, if any, per se prohibitions—questions that can never be asked in any circumstances. An alibi witness like any other witness may be cross-examined with a view to pointing up the improbability of the witness’ testimony.

In the present case, so far as appears from the record, the first reference to the existence of an alibi witness was in a notice of alibi served 18 months after the crime and approximately three months before the trial. As our dissenting colleague agrees, the alibi witness may properly be cross-examined as to when and to whom the witness first disclosed the fact of the alibi; such circumstances obviously bear on the credibility of the witness’ testimony. The half dozen or dozen questions here involved were directed to that issue, asking whether the witness had told anybody that defendant was with her at the crucial time—the police, the District Attorney, the Grand Jury, or the defendant’s attorney. Of course such cross-examination like any examination may in a particular case exceed the bounds of propriety. Thus it is improper to conduct the examination in such a way as to suggest to the jury that there is some duty on the part of an alibi witness to come forward and report to the prosecution rather than the defense. Whether a particular series of questions violates that proscription will vary with the series of questions. That there was no such implication in the questions here involved is demonstrated by the fact that the prosecutor asked not only whether the witness told the prosecuting authorities, but also whether the witness communicated with the defense attorney. The dissent apparently believing these questions to be irrelevant omits to quote the questions on cross-examination immediately following the portion quoted in the dissenting opinion:

"Q. Now, the defendant had an attorney at that point, didn’t he?

"A. Yes.

"Q. He had a lawyer. Were you in communication with the lawyer at that time?

"A. I did not know who that lawyer was.

"Q. Didn’t ask your son-in-law who his lawyer was?

"me, fusco: I object to this.

"the court: Overruled.

"A. I only know Mr. Fusco.

"Q. But you never asked your son (sic), at the time he was arrested, who his lawyer was, is that correct?

"mr. fusco: I object to that.

"the court: Overruled.

"A. No.”

These questions as to whether the witness told the defendant’s lawyer at that time show that the thrust of the questions was not a duty to tell the prosecuting authorities but the failure to tell anybody.

The questions could and should have been asked in a less sarcastic way; and the question that the witness "certainly” went to the Grand Jury and asked to testify before them was plainly improper. Obviously, a witness has no right at his own volition to appear before a Grand Jury.

But all of this and the explanation of when the alibi witness first came forward and why she did not come forward earlier are matters that could have been gone into on redirect. Instead, on redirect, defendant’s attorney merely asked two plainly improper—and effectively suggestive—questions: "Would it have done you any good to go to” the District Attorney? the police? He chose not to ask the proper questions as to when the witness came forward, and to whom she spoke and why she did what she did. Significantly, defendant’s attorney did not advert, even by an improper question, to the one point, a favorable response to which would have been a complete explanation of the witness’ conduct—her communication with defendant’s attorney.

The evidence of guilt was very strong, including identification by each of the victims in the three crimes. The alibi evidence was extremely weak—that for 29 hours the defendant was continuously in the alibi witness’ apartment, five minutes from the scene of the crimes.

We do not think the few questions here involved, all but the one about the Grand Jury proper enough, require reversal on this strong showing of guilt and this very weak alibi evidence.

The remaining issue, as to denial of the application to suppress identification evidence, requires no discussion in this opinion.

The judgment of the Supreme Court, Bronx County (Silbermann, J.), rendered August 5, 1977, convicting defendant on jury verdict, of robbery in the first degree (Penal Law, § 160.15) (two counts) and attempted robbery in the first degree (Penal Law, §§ 110, 160.15), and sentencing him thereon, should be affirmed.