People v. Stavris

Judgment, Supreme Court, New York County, rendered October 26, 1978, reversed, on the law, and the case remanded for a new trial. Defendant-appellant was convicted by a jury of grand larceny, second degree, in that, being a manager of an off-track betting establishment, he had stolen $10,000 out of a deposit prepared and sealed by him for transmittal to a bank. The assigned error upon which we reverse was frustration by the court of an attempt by defendant to place in evidence a prior statement by the chief—and crucial—witness against him, claimed to have been inconsistent with his testimony at trial. Instead of submitting the question of consistency to the jury, the trial court ruled that "there is no contradiction that would warrant the playing of the tape” and sustained the objection. In evaluating the testimony of the witness relied upon by the prosecution to provide defendant-appellant’s "exclusive opportunity” to have abstracted $10,000 from the OTB branch’s deposit, the jury was thus deprived of the opportunity to learn that the witness had theretofore made a claimed inconsistent statement out of court. It had been recorded in the course of OTB’s own investigation; of that, there was no question. The witness was, in a sense, defendant’s alter ego in management of the branch, whose tour of duty was about to end for the day and was on his way to leave the premises after turning management over to defendant. He and defendant had just completed the careful checking of cash incidental to the transfer of responsibility. It was part of his job to observe defendant placing the day’s deposit into a sealed bag and to know if defendant did so. Yet he told the OTB investigators three times that he did not know if defendant did so. At the trial he said that he did not see defendant do so. It is at least arguable that there is inconsistency, certainly as to degree of observation, between the two answers. The witness himself acknowledged on cross-examination that there was a difference between not seeing and not knowing. The court should have submitted the question of any difference to those whose duty it was to determine credibility. "Primarily at issue here is whether defendant’s previous utterance was sufficiently inconsistent with his trial testimony to warrant its use on cross-examination. From earliest common-law days, a prior statement was admissible for impeachment purposes even though it did not directly contradict the witness’ testimony (e.g., Foster v Worthing, 146 Mass 607; 3 Wigmore, Evidence [3d ed], § 1040). Our case law accords with this established precept. In Larkin v Nassau Elec. R.R. Co. (205 NY 267, 269, supra), for example, we emphasized: 'Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts.’ More recent cases, too, reiterate and apply the rule in this fashion (e.g., People v Bornholdt, 33 NY2d 75, 83, supra; see People v Miles, 23 NY2d 527, 543-544, cert den 395 US 948; People v Johnson, 27 NY2d 119, 122-123, cert den 401 US 966). Indeed, a more rigorous rule requiring direct contradiction would be at odds with the purpose underlying use of prior inconsistents, since such statements are admitted principally to assist the jury in its fact-finding role 508 (e.g., McCormick, Evidence [2d ed], p 69). In case of doubt, therefore, the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment evidence. Applied in this fashion, the law of previous contradictory statements will advance rather than impede the truth-seeking process.” (People v Wise, 46 NY2d 321, 326-327.) Implicit in the statement in favor of "leaving to the jury the function of determining what weight should be assigned” is the corollary that the fact of inconsistency itself is a jury question to be decided by the triers of fact like any other credibility factor such as interest, bias, ability to observe, prejudice, etc. Considering all the circumstances, the court should not have decided the question of consistency as a matter of law but should have passed it to the jury to decide, with a proper instruction, as an issue of fact bearing on credibility. The ruling was at least an abuse of discretion so serious as to constitute an error of law. It cannot be considered harmless and had to be prejudicial. Two persons could have been deemed suspects, defendant and the man who testified against him. Deprived of knowledge of the witness’ prior statement and knowing only that the witness—not defendant—had the opportunity of leaving the premises at once, the jury continued to deliberate for three days before verdict. Had the jury known of the prior statement, it is possible that that added factor might have changed the result. Concur—Fein, J. P., Markewich and Lupiano, JJ.