| People v Visich |
| 2008 NY Slip Op 10029 [57 AD3d 804] |
| December 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PeterVisich, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Argiro Kosmetatos and Itamar J. Yeger ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.),rendered January 6, 2004, convicting him of murder in the first degree (two counts), murder in thesecond degree (two counts), and robbery in the first degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant was convicted of murder in the first degree and other crimes based on evidence thathe hired Frank Thon to murder his wife. The defendant contacted Thon through Eddie Cassatt. Thontestified at trial pursuant to a cooperation agreement and admitted to the murder. Cassatt admitted thathe put the defendant in contact with Thon, but denied knowing about or being involved in the murder.Rather, Cassatt testified, he knew Thon from the semi-pro car racing circuit, and put the defendant incontact with Thon for a matter related to car racing. During cross-examination, the defendant attemptedto question both witnesses concerning whether they had been involved, either separately or together, inprior crimes, including beatings and murders, for which they had not been charged or convicted.However, both Thon and Cassatt refused to answer such questions, each invoking their privilegeagainst self-incrimination. The trial court denied the defendant's request to strike the direct testimony ofThon and Cassatt based on such refusals. However, the court charged the jury that the witnesses'invocation of the privilege could be considered in determining credibility. On appeal, the defendantargues that the trial court's refusal to strike the direct testimony of Thon and Cassatt deprived him of hisSixth Amendment right to [*2]confront witnesses against him. Thedefendant argues that he was unable to discredit the witnesses' direct testimony, and to demonstrate thebiased and self-interested nature of their testimony, including that they falsely implicated the defendantto protect their own penal interests.
A defendant in a criminal case has a constitutional right to confront witnesses against him throughcross-examination (see People v Chin, 67 NY2d 22, 27-28 [1986]). However, the inquiry isnot open-ended and a witness may, if appropriate, invoke the constitutional shield againstself-incrimination (see People v Chin, 67 NY2d 22, 28 [1986]). Refusal to answer thecross-examiner's questions may so distort the fact-finding process that some or all of the directtestimony must be stricken, lest the defendant be deprived of a fair trial (see People v Chin, 67NY2d at 28). In each case, "the ultimate question must be whether the defendant's inability to test theaccuracy of the witness's direct examination has been such as to create a substantial risk of prejudice"(id., quoting McCormick, Evidence § 140, at 347 [3d ed]). This depends, at least inpart, on the defendant's ability to make the same impeachment argument in the absence of excludedevidence (see People v Chin, 67 NY2d at 28). A trial court has wide discretion in fashioningthe appropriate corrective response when a witness invokes the privilege against self-incrimination,depending on the degree of prejudice that was incurred by the party whose right of cross-examinationwas impaired by the invocation of the privilege (see People v Siegel, 87 NY2d 536 [1995];People v Chin, 67 NY2d 22, 29 [1986]). Here, in addition to the fact that the defendant wasable to cross-examine Thon and Cassatt concerning the crimes at bar, and to argue on summation theinferences to be drawn from their invocation of the privilege against self-incrimination, the defendantwas able to explore each witness's bias and motivation to testify falsely through other evidence.Consequently, it cannot be said that the defendant's ability to test the accuracy of direct testimony ofThon and Cassatt was impaired such as to create a substantial risk of prejudice, or that the correctiveresponse fashioned by the trial court was an improvident exercise of its discretion (see People vSiegel, 87 NY2d at 544; People v Chin, 67 NY2d at 28-29).
Further, the trial court did not err in denying that branch of the defendant's omnibus motion whichwas to suppress evidence found in his vehicle. The credibility determinations of a hearing court areaccorded great deference on appeal and will not be disturbed unless clearly unsupported by the record(see People v Wynter, 48 AD3d492 [2008]). Here, the record supports the hearing court's determination to credit the testimony ofthe police witnesses, which established that the defendant voluntarily consented to the search (seePeople v Gonzalez, 39 NY2d 122 [1976]; People v Wynter, 48 AD3d 492 [2008]). Further, on the factspresented, the duration of the search did not exceed the scope of the consent, and there is no evidencethat the consent was withdrawn or otherwise terminated during the search (see generally People v Calvo, 1 AD3d605 [2003]; People v Borg, 110 AD2d 844 [1985]; People v Hopkins, 86AD2d 937 [1982]; People v Russell, 73 AD2d 791 [1979]).
Finally, the trial court properly instructed the jury that the issue of whether Cassatt was anaccomplice was a question of fact, in that competing inferences regarding his complicity couldreasonably have been drawn from the evidence adduced at the trial (see People v Besser, 96NY2d 136, 147 [2001]; People v Cobos, 57 NY2d 798 [1982]; People v Argentina, 27 AD3d 569,570 [2006]). Further, assuming arguendo that the jury found Cassatt to be an accomplice, thetestimony of both Cassatt and Thon (who was found to be an accomplice as a matter of law) wascorroborated by independent evidence connecting the defendant to the crimes (see CPL 60.22[1]; People v Caban, 5 NY3d 143[2005]; People v Breland, 83 NY2d 286 [1994]).
The defendant's remaining contentions are without merit. Ritter, J.P., Florio, Miller and Dillon, JJ.,concur.