| People v Arena |
| 2013 NY Slip Op 03194 [106 AD3d 1445] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v FrankArena, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 1, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree, robbery in the first degree, robbery in the second degree andassault in the second degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and anew trial is granted.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of robbery in first degree (Penal Law § 160.15 [3]), robbery in the seconddegree (§ 160.10 [1]), assault in the second degree (§ 120.05 [6]), andburglary in the first degree (§ 140.30 [3]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). We agree with defendant,however, that Supreme Court erred in refusing to allow him to call a defense witness attrial. We therefore reverse the judgment of conviction and grant defendant a new trial.
Defendant and his codefendant were charged with beating the victim and forciblystealing property from him. Those crimes were committed on May 2, 2010. According tothe People, defendant's motive was to retaliate against the victim for informing thepolice, in an anonymous 911 call on April 18, 2010, that defendant was growingmarihuana in his house. Prior to trial, the court granted the People's motion to admitMolineux evidence to that effect (see People v Molineux, 168 NY 264,293-294 [1901]). During the prosecutor's opening statement, she referred repeatedly todefendant's alleged motive for revenge, and evidence of that motive was admitted on thePeople's direct case. After the People rested, defense counsel sought to call a witness(hereafter, proposed witness) who was on the witness list submitted to the court bydefendant prior to voir dire. The prosecutor asked for an offer of proof, asserting that theanticipated testimony of the proposed witness was "tangential to the issues here." Inresponse, defense counsel stated that the proposed witness intended to testify that onApril 18, 2010—the same day on which defendant was arrested on the marihuanacharge—defendant accused the proposed witness of being the informant but didnot assault or threaten him. The court precluded [*2]theproposed witness from taking the stand, ruling that his proposed testimony was "notrelevant to the issues presented to this jury, namely what, if anything, occurred on May 2,2010," when defendant allegedly assaulted and robbed the victim. Defense counselobjected to the court's ruling and, after defendant testified and called several otherwitnesses, the jury rendered a guilty verdict on all counts.
It is well settled that "a defendant's 'right to present his own witnesses to establish adefense . . . is a fundamental element of due process of law' " (People vWilliams, 81 NY2d 303, 312 [1993], quoting Washington v Texas, 388 US14, 19 [1967]). In fact, "[f]ew rights are more fundamental than that of an accused topresent witnesses in his [or her] own defense" (Chambers v Mississippi, 410 US284, 302 [1973]). Thus, the testimony of a defense witness should not be prospectivelyexcluded unless the offer of such proof is palpably in bad faith (see People vGilliam, 37 NY2d 722 [1975], revg on dissenting op of Hopkins, J., 45AD2d 744, 745 [1974]; People v Wilkerson, 294 AD2d 298, 299 [2002], lvdenied 98 NY2d 772 [2002]). Instead, courts upon proper objection should "rule onthe admissibility of the evidence offered" (Gilliam, 45 AD2d at 745).
Here, the People do not suggest that the testimony of the proposed witness wasoffered in bad faith, and the court did not make such a finding at trial. Indeed, there is nobasis in the record for concluding that the offer of proof was palpably in bad faith. Thecourt therefore should have allowed the proposed witness to testify, whereupon theprosecutor could object to any testimony she deemed inadmissible or improper.
In any event, contrary to the People's contention and the court's determination, theproposed testimony was not inadmissible on relevancy grounds. As a general rule,"[e]vidence is relevant if it has any tendency in reason to prove the existence of anymaterial fact, i.e., it makes determination of the action more probable or less probablethan it would be without the evidence" (People v Scarola, 71 NY2d 769, 777[1988]). The proposed testimony was relevant to the issue of motive, as posited by thePeople. Having allowed the People to admit Molineux evidence regardingdefendant's motive for revenge against the victim, the court should not have prohibiteddefendant from calling a witness whose testimony, if believed, may have tended to makethe People's theory of motive less probable than it would be without the profferedtestimony (see generally id.).
Finally, the People contend in the alternative that the court's ruling was properbecause the proposed testimony constituted inadmissible hearsay. Even if we were toagree with that contention, which we do not, we could not affirm the judgment on thatbasis because the court did not preclude the proposed witness from testifying on hearsaygrounds and our review is limited to the ground relied upon by the court (see People v Concepcion, 17NY3d 192, 194-195 [2011]; People v LaFontaine, 92 NY2d 470, 473-474[1998], rearg denied 93 NY2d 849 [1999]).
All concur except Scudder, P.J., and Martoche, J., who dissent and vote to affirm inthe following memorandum.
Scudder, P.J., and Martoche, J. (dissenting). We respectfully dissent because wecannot agree with the majority that Supreme Court committed reversible error in refusingto allow defendant to call a defense witness whose testimony was, according todefendant, relevant on the issue of motive. While we recognize the constitutional right ofa defendant to present a defense, including presenting his or her own witnesses (seePeople v Williams, 81 NY2d 303, 312 [1993]), a defendant does not have anunfettered right to offer testimony that is incompetent, privileged or otherwiseinadmissible under the rules of evidence (see People v Hayes, 17 NY3d 46, 53 [2011], certdenied 565 US —, 132 S Ct 844 [2011]). The mere invocation of the right tooffer testimony cannot automatically and invariably outweigh countervailing publicinterests (see Taylor v Illinois, 484 US 400, 414-415, reh denied 485 US983 [1988]). Such interests include whether the probative value of the evidence "isoutweighed by the danger that its admission would confuse the main issue and misleadthe jury" (People v [*3]McKinley, 72 AD2d 470,474 [1980]; see People v Harris, 209 NY 70, 82 [1913]). Here, the courtconcluded that the testimony would not be relevant to the issues at trial. We agree withthat conclusion. The proffered testimony that defendant contacted another personsuspected of giving information to the police about him two weeks before the incident inquestion and did not assault that person is not relevant to the issue whether defendantassaulted the victim in this case. Indeed, in our view the connection of the profferedtestimony to the alleged assault was "neither apparent nor logical on its face"(Williams, 81 NY2d at 315). We further conclude that the witness' profferedtestimony was not "highly relevant and exculpatory" (People v Cummings, 191AD2d 1012, 1013 [1993]) but, rather, it was " 'too . . . remote[ ] orconjectural to have any legitimate influence in determining the fact[s] in issue' "(People v Barnes, 109 AD2d 179, 184 [1985]). Thus, in our view, the court didnot err in refusing to allow defendant's proposed witness to testify.Present—Scudder, P.J., Centra, Lindley, Sconiers and Martoche, JJ.