New York Law Review

Tag: Extrinsic Evidence

  • Graev v. Graev, 11 N.Y.3d 262 (2008): Defining “Cohabitation” in Separation Agreements Requires Extrinsic Evidence of Intent

    Graev v. Graev, 11 N.Y.3d 262 (2008)

    The term “cohabitation” in a separation agreement is ambiguous absent a clear definition within the agreement itself, and courts must consider extrinsic evidence to determine the parties’ intended meaning, rather than relying solely on a presumption of shared economic circumstances.

    Summary

    Linda and Lawrence Graev divorced, incorporating a settlement agreement that obligated Mr. Graev to pay spousal support, terminating if Mrs. Graev cohabitated with an unrelated adult for 60 days. Mr. Graev stopped payments, alleging cohabitation between Mrs. Graev and MP, based on overnight stays at her vacation home and their social activities as a couple. Mrs. Graev argued that “cohabitation” required sexual relations, and later, an economic unit, which did not exist. The Court of Appeals held that “cohabitation” is ambiguous without a specific definition in the agreement and reversed the lower court’s decision, remanding the case for consideration of extrinsic evidence of the parties’ intent.

    Facts

    Linda and Lawrence Graev divorced in 1997, with a settlement agreement incorporated but not merged into the divorce judgment. The agreement stipulated Mr. Graev would pay $10,000 monthly spousal support until August 2009 or the occurrence of certain termination events, including Mrs. Graev’s cohabitation with an unrelated adult for 60 substantially consecutive days. The agreement did not define “cohabitation.” In 2004, Mr. Graev ceased payments, asserting that Mrs. Graev was cohabitating with MP, based on surveillance showing MP stayed overnight at Mrs. Graev’s vacation home in Connecticut for more than 60 days. Mr. Graev argued the pair had an “obvious serious relationship,” acting as a couple at family events.

    Procedural History

    Mrs. Graev moved to enforce the maintenance provisions of the settlement agreement. Mr. Graev cross-moved for summary judgment, arguing cohabitation had occurred. Supreme Court ordered a hearing to determine if the relationship constituted cohabitation, holding sexual intercourse was not conclusive. After a hearing, the trial court found no cohabitation, emphasizing the lack of a shared residence and economic unit. The Appellate Division affirmed, concluding “cohabitation has a plain meaning which contemplates changed economic circumstances, and is not ambiguous.” The Court of Appeals reversed, holding the term “cohabitation” ambiguous and remanded the case for a hearing considering extrinsic evidence of the parties’ intent.

    Issue(s)

    Whether the term “cohabitation,” as used in the settlement agreement, is ambiguous, thus requiring the consideration of extrinsic evidence to determine the parties’ intent, or whether it has a plain meaning under New York law that requires a shared economic unit.

    Holding

    No, the term “cohabitation” is ambiguous as used in the settlement agreement because neither the dictionary nor New York case law supplies an authoritative or “plain” meaning. Extrinsic evidence of the parties’ intent must be considered.

    Court’s Reasoning

    The Court of Appeals found that the word “cohabitation” is ambiguous because neither dictionary definitions nor New York case law provides a singular, authoritative meaning. The Court highlighted the various definitions of “cohabit,” noting the common element of “living together” in a manner resembling marriage. The Court rejected the Appellate Division’s assertion that New York case law established a distinct meaning of “cohabitation” as requiring “changed economic circumstances,” stemming from the decision in Scharnweber v. Scharnweber. While some Appellate Division decisions implied that there could be no “cohabitation” without changed economic circumstances, the Court of Appeals had never adopted that position. The Court observed the parties’ shifting interpretations of “cohabitation” throughout the litigation, further demonstrating the term’s ambiguity. Because the term is ambiguous, the Court reasoned that extrinsic evidence is necessary to determine the parties’ intent, stating, “Without extrinsic evidence as to the parties’ intent, there is no way to assess the particular factors inherent in the dictionary meanings or case law discussions of ‘cohabitation’ the parties may have meant to embrace or emphasize.” Therefore, the Court reversed the Appellate Division’s order and remitted the case to Supreme Court for further proceedings to consider such evidence.

  • People v. Pizarro, 7 N.Y.3d 830 (2006): Extrinsic Juror Knowledge and Appellate Deference

    People v. Pizarro, 7 N.Y.3d 830 (2006)

    A trial court’s credibility findings regarding juror impartiality, made after a hearing and based on observations of the jurors, are entitled to great deference on appeal, provided they are supported by the record.

    Summary

    Defendant Pizarro appealed his conviction, arguing that the trial judge should have declared a mistrial because a juror allegedly concealed knowledge about the case during jury selection, attempted to share outside information during deliberations, and lied to the court about it. The trial court conducted a hearing, interviewing the juror and other jurors. The court concluded that the juror did not possess outside knowledge and had not tried to convey such information. The Appellate Division affirmed, deferring to the trial court’s credibility findings. The New York Court of Appeals affirmed, holding that the trial court’s findings were supported by the record and deserved deference.

    Facts

    Pizarro was convicted on four counts of second-degree murder. During jury deliberations, the jury foreperson reported that another juror had attempted to share information about the case that was not part of the evidence presented at trial. Pizarro argued this warranted a mistrial.

    Procedural History

    Following the jury foreperson’s report, the trial court held a hearing. The trial judge interviewed the allegedly errant juror three times and also questioned the other jurors. The trial court found that the juror did not possess outside knowledge and did not attempt to share any such knowledge with the other jurors. The Appellate Division affirmed the conviction, deferring to the trial court’s findings. The New York Court of Appeals then affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in not declaring a mistrial based on the allegation that a juror concealed personal knowledge about the case, attempted to share outside-the-record information with other jurors, and then lied to the trial court about these actions.

    Holding

    No, because the trial court’s credibility findings, made after hearing and viewing the jurors, are entitled to great deference, and the record supported the court’s determination that there was no juror misconduct warranting a mistrial.

    Court’s Reasoning

    The Court of Appeals emphasized the deference owed to the trial court’s credibility determinations, stating that such findings are “entitled to great deference.” The Court found that the juror repeatedly denied having extrinsic knowledge, and the trial judge credited these denials. The Court noted that the Appellate Division had also deferred to the trial court’s findings, observing that there was merely a “misunderstanding” between the juror and some of the other jurors. The Court of Appeals further explained that it must accept the affirmed factual determinations of the lower courts if they are supported by the record, which they were in this case. The court found no basis to overturn the trial court’s assessment of the juror’s credibility, particularly since the juror’s denials were not, as a matter of law, contradicted by the other jurors’ accounts. The court implied that absent clear and convincing evidence of juror misconduct or bias, deference should be given to the trial court’s first-hand observations and findings.

  • People v. Hynes, 75 N.Y.2d 844 (1990): Admissibility of Extrinsic Evidence to Rebut Alibi Witness Testimony

    People v. Hynes, 75 N.Y.2d 844 (1990)

    Extrinsic evidence is admissible to rebut an alibi witness’s claim of promptly reporting the alibi to police, as it directly relates to the truthfulness of the alibi, a material issue in the case, and is not merely collateral impeachment.

    Summary

    Hynes was convicted of gunpoint robbery after presenting an alibi defense. During cross-examination, his alibi witnesses claimed they told police about the alibi at the time of Hynes’s arrest. The prosecution then called the arresting officer to testify that the witnesses had not come forward at the time. The New York Court of Appeals affirmed the conviction, holding that the officer’s rebuttal testimony was admissible because it related to a material issue—the truthfulness of the alibi—and was not merely an attempt to impeach the witnesses on a collateral matter. This is permissible under People v. Dawson, provided that the Dawson threshold requirements are satisfied.

    Facts

    1. Defendant Hynes was charged with participating in a gunpoint robbery.
    2. Hynes claimed mistaken identity and presented an alibi defense at trial.
    3. During the prosecutor’s cross-examination, two of Hynes’s alibi witnesses stated that they had told the police their stories when the police came to their home to arrest him.
    4. Over defense objection, the prosecution called the arresting officer.
    5. The officer testified that neither of the alibi witnesses had come forward at the time of Hynes’s arrest.

    Procedural History

    1. Hynes was convicted at trial.
    2. The Appellate Division affirmed the conviction, holding that the trial court had not erred in permitting the use of extrinsic evidence to rebut the alibi witnesses’ claims.
    3. Hynes appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in allowing the prosecution to present extrinsic evidence (the arresting officer’s testimony) to rebut the alibi witnesses’ claims that they had promptly reported the alibi to the police, where such rebuttal testimony was used to undermine the alibi defense.

    Holding

    Yes, because the issue to which the extrinsic evidence related was material, i.e., relevant to the very issues the jury had to decide (the truthfulness of the alibi), and therefore the rule prohibiting impeachment on collateral matters does not apply, provided that the threshold requirements set forth in People v. Dawson have been satisfied.

    Court’s Reasoning

    The Court of Appeals reasoned that the rule against using extrinsic evidence to impeach a witness on collateral matters is meant to avoid confusion and unfair surprise on issues with minimal probative value. This rule does not apply when the evidence relates to a material issue, meaning it is relevant to the issues the jury must decide.

    The court cited People v. Dawson, recognizing that an alibi witness’s failure to promptly come forward with their story can have probative value, bearing directly on the alibi’s truthfulness. Evidence of a witness’s prior silence is admissible 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.” The court emphasized 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.

    The court analogized the case to People v. Cade, where rebuttal evidence contradicting an alibi witness’s testimony was permitted. Here, the rebuttal evidence undermined the believability of the alibi. In both cases, the extrinsic evidence challenged the alibi’s validity, a material issue.

    The court rejected the argument that the testimony was inadmissible because the prosecutor elicited the evidence to be impeached. The court stated that “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.”

  • W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157 (1990): Enforcing Unambiguous Contract Terms Over Extrinsic Evidence

    W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157 (1990)

    When parties set down their agreement in a clear, complete document, the writing should be enforced according to its terms, and extrinsic evidence is inadmissible to create an ambiguity in an otherwise unambiguous agreement.

    Summary

    W.W.W. Associates contracted to buy land from the Giancontieris. The contract included a clause allowing either party to cancel if ongoing litigation affecting the property wasn’t resolved by a specific date. W.W.W. argued this clause was solely for their benefit and could be waived. The Giancontieris sought to cancel the contract based on the clause. The Court of Appeals held that because the contract was unambiguous in granting cancellation rights to both parties, extrinsic evidence suggesting the clause was only for W.W.W.’s benefit was inadmissible, thus enforcing the contract as written.

    Facts

    The Giancontieris owned a two-acre parcel of land. On October 16, 1986, they contracted to sell it to W.W.W. Associates, a real estate developer, for $750,000. The contract included a clause (paragraph 31) stating that either party could cancel if litigation concerning the property was not resolved by June 1, 1987. The contract also contained a standard merger clause (paragraph 19), stating that the written agreement constituted the entire agreement between the parties. W.W.W. was also given the sole right to cancel within 10 days of signing, and the option to cancel if the sellers couldn’t deliver building permits at closing.

    Procedural History

    When the litigation remained unresolved close to the June 1, 1987 deadline, W.W.W. declared its intention to close and sued for specific performance. The Giancontieris then canceled the contract. The trial court granted summary judgment to the Giancontieris, dismissing the complaint. The Appellate Division reversed, granting summary judgment to W.W.W., ordering specific performance based on extrinsic evidence. The New York Court of Appeals reversed the Appellate Division’s decision, dismissing W.W.W.’s complaint and reinstating the trial court’s order.

    Issue(s)

    Whether extrinsic evidence should be considered to interpret an unambiguous contract and determine if a reciprocal cancellation provision was intended for the sole benefit of one party.

    Holding

    No, because when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms. Extrinsic evidence is inadmissible to create an ambiguity in a written agreement that is complete, clear, and unambiguous on its face.

    Court’s Reasoning

    The Court of Appeals emphasized the importance of enforcing clear and complete written agreements according to their terms. The court found the cancellation clause in question to be unambiguous, granting a reciprocal right to both parties. The Court reasoned that considering extrinsic evidence to create an ambiguity would undermine the stability of commercial transactions, particularly in real property dealings. The court stated, “When parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.” The court also noted that the contract contained a merger clause, further solidifying the intent to integrate all prior understandings into the written agreement. The Court suggested a logical reason for the seller to want the option to cancel: “A seller taking back a purchase-money mortgage for two thirds of the purchase price might well wish to reserve its option to sell the property for cash on an ‘as is’ basis if third-party litigation affecting the property remained unresolved past a certain date.” The Court rejected W.W.W.’s bad faith claim, finding it was not supported by admissible evidence. In summary, the Court prioritized the written contract’s plain meaning over W.W.W.’s claims of a different intent based on outside evidence.

  • Badr v. Hogan, 75 N.Y.2d 629 (1990): Use of Extrinsic Evidence to Contradict on Collateral Matters

    Badr v. Hogan, 75 N.Y.2d 629 (1990)

    A party may not introduce extrinsic evidence to contradict a witness’s testimony regarding collateral matters solely for impeachment purposes.

    Summary

    In this landlord-tenant dispute, the New York Court of Appeals addressed whether the trial court erred in allowing defense counsel to cross-examine the plaintiff about receiving public welfare funds she allegedly wasn’t entitled to, and then admitting a confession of judgment as evidence. The Court of Appeals held that admitting the confession of judgment, which contradicted the plaintiff’s denial, violated the collateral evidence rule because the matter was solely for impeachment purposes. The court reasoned that the error was prejudicial because it directly impacted the plaintiff’s credibility, a central issue in the case, thus warranting a new trial.

    Facts

    Lydia Badr, her husband, and their daughter Dina lived in an apartment rented from Mark Hogan. Dina allegedly sustained injuries due to Hogan’s negligence in failing to repair a broken window in the apartment. At trial, Badr testified that the window was broken and Hogan only covered the hole with cardboard. Hogan testified that the window was not broken before the accident. During cross-examination, defense counsel questioned Badr about whether she had received money from the Department of Social Services to which she was not entitled. Badr denied this. Over objection, defense counsel then introduced a confession of judgment where Badr admitted receiving $2,654.50 improperly from the Department of Social Services. Badr admitted signing the document but insisted she was entitled to the funds.

    Procedural History

    The trial court initially sustained an objection to the line of questioning regarding welfare funds but later reversed its decision and allowed the questioning and admission of the confession of judgment. The jury returned a verdict for the defendant, finding that the window was not defective. The Appellate Division affirmed the trial court’s decision. The plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court committed reversible error by allowing defense counsel to cross-examine the plaintiff about collateral matters (receipt of allegedly improper welfare funds) and admitting extrinsic evidence (the confession of judgment) to contradict her denial, solely for the purpose of impeaching her credibility.

    Holding

    Yes, because the confession of judgment constituted extrinsic evidence used to contradict the plaintiff on a collateral matter solely for impeachment purposes, which violated the collateral evidence rule and was prejudicial, thus warranting a new trial.

    Court’s Reasoning

    The Court of Appeals stated the general rule that a witness may be cross-examined on specific immoral, vicious, or criminal acts bearing on credibility. However, the court emphasized that the cross-examination is discretionary and must show moral turpitude to be relevant. Even assuming the questioning was proper, the court found that the matter was collateral. “It was neither relevant to some issue in the case other than credibility nor was proof of it independently admissible to impeach a witness.” The court distinguished this case from situations where further questioning is permitted to induce a witness to change their testimony, stating, “But further examination of the witness is not what happened here.” Instead, defense counsel introduced extrinsic evidence—the confession of judgment—to directly contradict Badr’s denial. The court stated, “It was error to admit this extrinsic proof for the sole purpose of contradicting her testimony on that collateral issue”. The court also rejected the argument that the confession of judgment was used to refresh Badr’s recollection. Because the confession of judgment was emphasized during the trial and in defense counsel’s summation, the court found the error prejudicial, requiring a new trial. The court concluded that, in light of the emphasis placed on the confession of judgment as bearing on the critical issue of the plaintiff’s credibility, the error was sufficiently prejudicial to warrant a new trial.

  • New York Stock Exchange, Inc. v. Hartford Accident & Indemnity Co., 56 N.Y.2d 650 (1982): Extrinsic Evidence and Ambiguous Insurance Contracts

    56 N.Y.2d 650 (1982)

    If the language of an insurance policy is susceptible to two reasonable interpretations, a court may consider extrinsic evidence to determine the parties’ intent at the time of contracting.

    Summary

    This case addresses whether summary judgment was appropriately granted to Hartford and INA, insurance companies, regarding coverage under excess bonds issued to the Newin Corporation. Newin Corporation sought to recover losses sustained after advancing funds to cover losses caused by the bankruptcy of Ira Haupt & Co. The dispute centered around the interpretation of a “deductible” clause in the Newin Bonds. The insurers argued the clause was a standard excess clause, requiring exhaustion of Haupt’s primary fidelity bonds before the Newin bonds were triggered. The New York Court of Appeals reversed the Appellate Division’s order, holding that the clause was ambiguous and that extrinsic evidence regarding the parties’ intent should be considered, thus precluding summary judgment.

    Facts

    The “Salad-oil Swindle” led to the collapse of Allied Crude Vegetable Oil Refining Corp. and the bankruptcy of Ira Haupt & Co.
    New York Stock Exchange, Inc. and its subsidiary, Newin Corporation, advanced $9.5 million to Haupt’s customers who suffered losses due to the bankruptcy.
    Haupt had fidelity bonds to protect its customers from fraudulent acts.
    Hartford and INA issued “excess” bonds (Newin Bond I and Newin Bond II) to Newin Corporation to cover losses exceeding Haupt’s coverage.

    Procedural History

    The plaintiffs sued Hartford and INA to recover under the Newin Bonds.
    The defendants Hartford and INA moved for partial summary judgment, which was granted by the lower court.
    The Appellate Division affirmed the grant of partial summary judgment.
    The New York Court of Appeals reversed the Appellate Division’s order, denying the motion for partial summary judgment.

    Issue(s)

    Whether the “deductible” clause in the Newin Bonds was unambiguous and required the exhaustion of the face amount of Haupt’s primary fidelity bonds before coverage under the Newin Bonds was triggered, thereby entitling Hartford and INA to summary judgment.

    Holding

    No, because the deductible clause was ambiguous, and extrinsic evidence was needed to determine the parties’ intent, precluding summary judgment.

    Court’s Reasoning

    The court reasoned that the rights and obligations of parties under insurance contracts are generally determined by the specific language of the policies. However, if the policy language is susceptible to two reasonable meanings, extrinsic evidence of the parties’ intent at the time of contracting is admissible.
    The court found that the phrase “available to cover such loss” in the deductible clause was ambiguous. Hartford and INA argued it meant the face amount of Haupt’s bonds had to be exhausted, while Newin Corporation argued it meant funds actually available from Haupt’s bonds to cover plaintiffs’ losses.
    Plaintiffs submitted affidavits from individuals involved in negotiating and drafting the Newin Bonds, asserting that the clause was intended to permit recovery after funds were no longer available from Haupt, even if the face value of Haupt’s bonds was not exhausted.
    Because the plaintiffs demonstrated that the deductible clause was, at the very least, ambiguous, a material question of fact regarding the parties’ intent was presented. Therefore, the defendants’ motions for summary judgment should have been denied.
    The court cited Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172, reiterating the principle that extrinsic evidence is admissible when policy language is susceptible to multiple interpretations. The court also noted that, as in Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441, the presence of a factual dispute precludes summary judgment.

  • Sutton v. East River Savings Bank, 55 N.Y.2d 550 (1982): Interpreting Contractual Intent When Extrinsic Evidence is Lacking

    55 N.Y.2d 550 (1982)

    When a contract’s meaning must be determined without extrinsic evidence due to a party’s failure to provide admissible proof, the court must interpret the contract based on the fair and reasonable meaning of its terms, aiming to realize the parties’ reasonable expectations.

    Summary

    Sutton, an executor, sued East River Savings Bank to recover a brokerage commission based on a written agreement. The agreement stipulated a commission for the broker if the bank sold a property or assigned its mortgage to McDonald’s Corporation. McDonald’s nominee acquired the property at a foreclosure sale. The bank refused to pay, arguing the agreement’s conditions weren’t met and offering affidavits as extrinsic evidence. The court found the affidavits insufficient, interpreted the contract without extrinsic evidence, and ruled in favor of Sutton, holding that the foreclosure sale was within the agreement’s contemplated alternatives. The court focused on the overall intent to liquidate the bank’s interest in the property.

    Facts

    The East River Savings Bank was foreclosing on a property. Sutton, a real estate broker, and the Bank entered a letter agreement regarding a commission. The agreement stated that Sutton would receive a $10,000 commission if the property was sold or the mortgage assigned to McDonald’s Corporation. McDonald’s Corporation, through its nominee, Franchise Realty Interstate Corporation, acquired title to the property by bidding at the foreclosure sale. The price covered the bank’s mortgage. The bank refused to pay Sutton the commission.

    Procedural History

    Sutton, as executor of the broker’s estate, sued the bank to recover the commission. Special Term ruled against Sutton. The Appellate Division reversed, granting summary judgment for Sutton. The bank appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Appellate Division erred in granting summary judgment to the Plaintiff, when the bank professed to have evidence confirming their interpretation of the agreement, and in the case that they did not, was the Appellate Division’s construction of the agreement erroneous.

    Holding

    No, the Appellate Division did not err. The extrinsic evidentiary facts presented by the bank were insufficient to defeat the motion for summary judgment and the Appellate Division’s construction of the agreement was reasonable because, in the absence of sufficient evidentiary proof, the agreement was construed as a whole and the purchase that occurred was considered one of the alternatives reasonably contemplated by the agreement.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s decision, holding that the affidavits submitted by the bank were insufficient to raise a triable issue of fact. One affidavit was from the bank’s counsel without firsthand knowledge, and the other was from a bank officer offering conclusory assertions. Because the bank failed to provide admissible extrinsic evidence, the court was left to interpret the agreement itself. The court stated that in searching for the probable intent of the parties, the goal must be to accord the words of the contract their “fair and reasonable meaning.” (Heller v Pope, 250 N.Y. 132, 135). The court reasoned that the agreement’s primary goal was the satisfactory liquidation of the bank’s interest in the property. The sale to McDonald’s nominee through foreclosure was a reasonable means of achieving this goal. The dissent argued that Sutton hadn’t presented a prima facie case of performance, as the agreement didn’t explicitly cover a foreclosure sale and Sutton hadn’t explained his actions to facilitate the sale.

  • People v. Schwartzman, 24 N.Y.2d 241 (1969): Scope of Cross-Examination on Prior Bad Acts

    People v. Schwartzman, 24 N.Y.2d 241 (1969)

    A criminal defendant who testifies may be cross-examined about prior immoral, vicious, or criminal acts relevant to their credibility, and extrinsic evidence may be used to contradict the defendant’s answers if that evidence is independently admissible on an issue other than credibility.

    Summary

    Schwartzman, president of Safety Circuit Corporation, was convicted of grand larceny for falsely representing an account receivable as unencumbered. On appeal, he argued improper cross-examination concerning 22 alleged instances of prior misconduct. The Court of Appeals affirmed the conviction, holding that the cross-examination was within the trial court’s discretion because the prior acts related to obtaining money by false pretenses and were relevant to Schwartzman’s credibility. The court also addressed the use of documentary evidence to impeach Schwartzman’s testimony, finding it permissible because the evidence was independently admissible to prove intent to defraud, an essential element of the crime.

    Facts

    Roslyn Gladstone purchased an account receivable from Safety Circuit Corporation, represented by Schwartzman as unencumbered. In reality, Schwartzman had previously assigned the same receivable to Lester Balagur. Gladstone was unable to collect on the receivable. At trial, Schwartzman admitted to the double assignment, claiming Gladstone’s husband, acting as her agent, knew of the prior assignment. Mr. Gladstone denied this knowledge. The prosecution cross-examined Schwartzman extensively about 22 alleged instances of prior misconduct involving worthless checks, mortgaging property he didn’t own, and similar fraudulent activities.

    Procedural History

    Schwartzman was convicted of grand larceny in the first degree in a jury trial and sentenced to 2 1/2 to 5 years imprisonment. The Appellate Division unanimously affirmed the conviction. Schwartzman appealed to the New York Court of Appeals, arguing he was denied a fair trial due to improper cross-examination regarding other criminal acts.

    Issue(s)

    1. Whether the prosecutor’s cross-examination of the defendant regarding prior immoral, vicious, or criminal acts was an abuse of discretion?

    2. Whether the use of documentary evidence during the cross-examination of the defendant was an impermissible use of extrinsic evidence on collateral matters?

    Holding

    1. No, because the nature and extent of cross-examination is subject to the sound discretion of the Trial Judge and the acts inquired into had a bearing on his credibility as a witness.

    2. No, because an exception to the rule against extrinsic evidence on collateral matters exists where the evidence is relevant to an issue in the case other than credibility, or if independently admissible to impeach the witness.

    Court’s Reasoning

    The court reasoned that a defendant who testifies can be cross-examined about immoral, vicious, or criminal acts relevant to their credibility. Such offenses need not be similar to the charged crime, and the number of questions is not improper if asked in good faith with some factual basis. The court cited People v. Sorge, stating that a negative response does not preclude further inquiry to elicit a change in testimony.

    The court addressed the use of documentary evidence, reaffirming the rule that a cross-examiner cannot contradict a witness’s answers on collateral matters with extrinsic evidence solely to impeach credibility. However, an exception exists if the evidence is relevant to an issue other than credibility or independently admissible for impeachment. The court cited People v. Sorge, noting that the collateral evidence rule aims to prevent confusion and unfair surprise. Here, the court found the documentary evidence regarding the chattel mortgage was independently admissible to show intent to defraud, an essential element of grand larceny.

    The court cited People v. Molineux for the proposition that evidence of other crimes is admissible to establish motive or intention. Because Schwartzman admitted the transaction, his intent was the only fact in dispute, and evidence of similar misrepresentations was crucial. Quoting Wigmore, the court emphasized that “the essence of this probative effect is the likeness of the instance.”

    The court found one error: the prosecutor asked about a check charge for which Schwartzman had been acquitted. However, the court found the prosecutor acted in good faith, unaware of the acquittal, and the error was harmless given the other evidence. The court also declined to review a comment on the right to appeal, as no objection was made at trial.