People v. McKnight , 71 A.D.2d 801 ( 1979 )


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  • —Judgment affirmed. Memorandum: Because of insufficient evidence of identity of the perpetrators of a murder and attempt to murder committed on May 10, 1972, the convictions of defendant Edward McKnight and one Freeland were reversed by the Court of Appeals and a new trial was granted (People v Freeland, 36 NY2d 518). The primary basis of the reversal was the existence of evidence that the surviving victim-witness may have been under the influence of drugs and that her identifications, in particular of Freeland, were subject to reasonable doubt. Before retrial was begun, the victim-witness exonerated Freeland, and one Byrant, who looked somewhat like Freeland, was indicted as defendant’s partner. He was later acquitted thereof. After midnight on May 10, 1972, Ms. Stephonsa Washington and Ms. Orvetta Stewart were standing on a street corner waiting for a pickup, and defendant and another man allegedly came along in an automobile and picked them up, apparently for purposes of prostitution. Orvetta got in the front seat with defendant, and Ms. Washington got in the rear with the other man. These men then stated their intention to kill the girls. Ms. Washington was killed by strangulation. Orvetta testified that she did not have a good opportunity to observe the man in the rear seat but that she did clearly observe defendant in the front seat, that he *802tried to strangle her, and he left her as dead. At all times thereafter she steadfastly affirmed that defendant was the one who assaulted her and that she has no doubt about it. In addition to Orvetta’s identification of defendant as her assailant there was evidence that defendant told one Groom, in prison, that on the occasion in question defendant had taken Freeland along just for the ride (defendant thus admitting his involvement); that when told that another person admitted participating with defendant in killing Ms. Washington, defendant said, "those people talk too much”; that defendant told his wife of his involvement in the crime and, because he was having difficulty with her, he was afraid that she would tell the District Attorney, and he asked Groom to kill her; and that defendant also sought to engage Groom to kill Orvetta Stewart, the only eyewitness against him in this case. The court did not abuse its discretion in receiving Groom’s testimony as evidence of defendant’s consciousness of guilt, especially when it was supported by substantial direct evidence from Orvetta Stewart of defendant’s guilt (People v Buchalter, 289 NY 181, 218, affd 319 US 427; People v Yazum, 13 NY2d 302, 304-305; People v Howell, 3 AD2d 153, 158, affd 3 NY2d 672; People v Jenkins, 61 AD2d 705, 711). The court erred, however, in permitting Orvetta to testify that pending the trial someone fired a shot at her through her apartment window, for there was no evidence that the person who fired the shot was in any way an agent of or connected with defendant. Nevertheless, despite that error, we decline to reverse. Few trials are without some error (People v Kingston, 8 NY2d 384, 387); and in our view the extensive and careful charge to the jury by the trial court as to the limited value and use of evidence showing consciousness of guilt and that it may not be used to show that defendant had general criminal propensities, makes it clear that there is no significant probability that except for the error the jury would have acquitted defendant; and hence the error was harmless (People v Crimmins, 36 NY2d 230, 241-242; cf. People v Dickman, 42 NY2d 294, 298). The newly discovered evidence which defendant offered as ground for setting aside the verdict and for a new trial was merely cumulative of that presented at the second trial, and it only tended to impeach and discredit the People’s principal witness, Orvetta Stewart. Her credibility was the principal object of the second trial, and it was extensively explored. In denying the motion the court acted within its discretionary power (see People v Slaughter, 37 NY2d 596, 600-601; People v Becker, 215 NY 126, 159-160; People v Williams, 35 AD2d 1023; People v Galler 266 App Div 675). We have considered the other claims of error and find them to be without merit. All concur, except Cardamone, J. P. and Hancock, Jr., J., who dissent and vote to reverse the judgment and grant a new trial in the following memorandum.

Document Info

Citation Numbers: 71 A.D.2d 801

Judges: Cardamone, Hancock

Filed Date: 7/6/1979

Precedential Status: Precedential

Modified Date: 1/12/2022