Opinion
Argued June 1, 1992
Decided July 1, 1992
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Donals Grajales, J.
Steven M. Statsinger and Philip L. Weinstein for appellant.
Charles J. Hynes, District Attorney (Amy S. Griffin and Jay M. Cohen of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Having been charged with participating in a gunpoint robbery, defendant claimed that he had been mistakenly identified and presented an alibi defense at trial. During the prosecutor's cross-examination, two of defendant's alibi witnesses stated that they had told the police their stories when the police came to their home to arrest him. The People were then permitted, over a defense objection, to call the arresting officer and elicit from him that neither of the witnesses had, in fact, come forward at the time of the arrest. Defendant was subsequently convicted, and the Appellate Division affirmed, holding that the trial court had not erred in permitting the use of extrinsic evidence to rebut the alibi witnesses' claims that they had promptly reported defendant's alibi to the police.
On this appeal, defendant argues that the admission of the police officer's rebuttal testimony violated the rule prohibiting the use of extrinsic evidence to impeach a witness on a matter that is merely collateral (see, e.g., People v Pavao, 59 N.Y.2d 282; People v Schwartzman, 24 N.Y.2d 241, cert denied 396 U.S. 846). However, the rule, whose purpose is to avoid undue confusion and unfair surprise on matters of minimal probative worth (People v Pavao, supra, at 289), has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide (People v Wise, 46 N.Y.2d 321, 328).
In People v Dawson ( 50 N.Y.2d 311), this Court recognized that, in a proper case, an alibi witness's failure promptly to come forward with his or her story may have probative worth in that such silence bears directly on the truthfulness of the alibi. Thus, in trials involving an alibi defense, an alibi witness's prompt report, or failure promptly to report, is clearly relevant to a material issue that the jury is obligated to resolve, provided, of course, that the threshold requirements set forth in Dawson have been satisfied.
The concurrence is based on a fundamental misconstruction of the Court's holding in Dawson. The concurrer assumes that evidence as to whether the alibi witnesses promptly told their story to the police is admissible solely on the issue of credibility (concurring opn, at 848). In fact, the Dawson Court stated that "it would be improper for a District Attorney to suggest through [this line of] questioning that a witness * * * is generally unworthy of belief solely because he or she failed to come forward prior to the trial" ( 50 N.Y.2d, at 318, supra [emphasis supplied]). On the other hand, evidence of a witness's prior failure to come forward is permissible under Dawson to the extent that it could "aid the trier of fact in its effort to determine whether the [witness's] testimony * * * is an accurate reflection of the truth" (id., at 321). In other words, Dawson held that evidence of the witness's prior silence is not admissible if offered solely on the issue of the witness's general credibility but may be admitted to the extent that it bears on the truth of the alibi — an issue that is unquestionably material.
Indeed, the use of extrinsic evidence in this context is analogous to the use of such evidence in People v Cade ( 73 N.Y.2d 904), in which the People were permitted to introduce rebuttal evidence that the alibi witness had earlier told law enforcement authorities that the defendant could have committed the charged crime. The rebuttal evidence in Cade squarely contradicted the alibi witness's direct testimony, while the rebuttal evidence here merely undermined the believability of the alibi witnesses' story. In both instances, however, the extrinsic evidence was used to challenge the validity of the alibi, a material issue in the case, and was therefore not limited to collateral significance.
Accordingly, the trial court in this case did not err in permitting the People to rebut the alibi witnesses' testimony about their postarrest statements to police by calling the police officer to testify that such statements were never made. Contrary to defendant's contention, it makes no difference that the testimony to be impeached was elicited by the prosecutor rather than the defense, since, regardless of who elicited the evidence, the subject of that testimony was directly pertinent to the truthfulness of defendant's alibi and, consequently, was relevant to a "material" issue.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE and BELLACOSA concur; Judge HANCOCK, JR., concurs in result in an opinion.
Order affirmed in a memorandum.
I cannot agree that the People were properly permitted to adduce extrinsic evidence contradicting the witnesses' statements on cross-examination that they had told the police about defendant's alibi. It is basic that a cross-examiner is bound by a witness's answers to questions on collateral matters asked solely for the purpose affecting credibility. Extrinsic proof to rebut the witness's answers is not admissible (see, e.g., Richardson, Evidence § 491 [Prince 10th ed]). The general rule is that facts are not collateral if they are relevant to a material issue or if they are independently admissible to impeach the witness (see, People v Schwartzman, 24 N.Y.2d 241, 245; 3A Wigmore, Evidence §§ 1003, 1004 [Chadbourn rev 1970]). Facts bearing on some testimonial quality or capacity of the witness — e.g., a witness's bias, interest or hostility or that the witness was ill or intoxicated — are independently admissible on an issue other than credibility (see, Badr v Hogan, 75 N.Y.2d 629, 634-635; 3A Wigmore, op. cit., § 1005; Richardson, op. cit., § 503). Thus, such facts may be established despite the witness's denial on cross-examination (see, e.g., People v Webster, 139 N.Y. 73, 85; see also, Hoag v Wright, 174 N.Y. 36, 45-46 [facts disputing competency of a handwriting expert held independently admissible and not collateral]).
Here — unlike questions concerning bias, interest or competency which relate to some specific testimonial quality — whether the witnesses gave the police information concerning the defendant's alibi had no independent probative value and was relevant solely on the issue of whether the witnesses were telling the truth. Thus, the fact inquired about was collateral and not independently admissible. That the subject matter of the witness's direct testimony concerned a central factual issue — whether defendant was present at the scene of the crime — is beside the point. It is the relevance of the fact inquired about on cross-examination — not the importance or materiality of the fact to which the witness has testified — that governs. People v Dawson ( 50 N.Y.2d 311), cited by the court (majority opn, at 847, and n), pertains to what may be asked on cross-examination to affect the witness's credibility, not to the admission of extrinsic evidence under Schwartzman. In Dawson we held only that the trial court may, in its discretion, permit the prosecutor to cross-examine a defense alibi witness "concerning his failure to come forward at an earlier date" because "the information elicited during this type of questioning might well aid the trier of fact in its effort to determine whether the testimony of a defense witness is an accurate reflection of the truth or is, instead, a `recent fabrication'" (id., at 321 [emphasis added]). Cross-examination, if allowed under Dawson, is solely for the purpose of undermining the validity of the fact asserted by attacking the truthfulness of the witness asserting that fact. Nothing in Dawson suggests that the subject matter of the cross-examination (i.e., whether the alibi witness came forward and, if so, when) would be independently admissible and, hence, not purely collateral. Making the test of whether a fact is collateral for purposes of the Schwartzman rule depend on the materiality or centrality of the witness's testimony is a concept which, to my knowledge, is not supported in case law and one which beclouds an established rule of evidence.
People v Cade ( 73 N.Y.2d 904) does not support the Court's reasoning. In Cade, the rebuttal testimony was independently admissible as relevant to the central issue — whether defendant could have been present at the crime scene. We reasoned that because the contradiction in the alibi witness's statements "goes to a material, core issue in the case" (id., at 905) and not just to credibility, the evidence was not collateral. Here, the extrinsic evidence does not contradict the material fact in issue but only one collateral to it — i.e., the witnesses' prompt reporting of evidence bearing on the disputed material fact.
In sum, the extrinsic evidence was improperly received under well-established case law. The Court, in sanctioning its admission, substantially weakens — in my view, without good reason — what has been a clear-cut and easily applied rule under Schwartzman against the admission of extrinsic proof to contradict collateral facts. I would, nevertheless, affirm inasmuch as the error was harmless (see, People v Crimmins, 36 N.Y.2d 230, 241-242).