
    The People of the State of New York, Appellant, v Felix Almestica, Respondent. The People of the State of New York, Appellant, v George Calderon, Also Known as Pedro Calderon, Respondent.
    Submitted June 3, 1977;
    decided July 5, 1977
    
      
      Mario Merola, District Attorney (Richard M. Joel of counsel), for appellant.
    
      Jac M. Wolff for Felix Almestica, respondent.
   Chief Judge Breitel.

The People appeal from orders of the Appellate Division which reversed, on the law alone, defendants’ joint convictions, after trial without jury, of robbery in the first degree and burglary in the first degree, and remanded the cases for new trials.

The issue is one of harmless error. At trial, evidence obtained during an unlawful search was improperly admitted. But, also at trial, defendants, and two others also convicted but not before this court, were implicated by the victim’s compelling and convincing testimony, testimony completely independent of and not tainted by the unlawful search. The question is whether the trial court’s error, concededly of constitutional dimension, required reversal as a matter of law of convictions so supported by admissible, reliable, eyewitness testimony that the addition of the tainted evidence would be, at best, of negligible significance.

The order of the Appellate Division should be reversed, and the matters remitted to the Appellate Division for a review of the facts. Even constitutional error may be harmless when, as in this case, it is clear, beyond a reasonable doubt, that the error did not contribute to defendants’ conviction (Chapman v California, 386 US 18, 23-24).

The material facts were not contradicted. On December 3, 1973, at about 8:30 p.m., defendants Almestica and Calderon, along with two codefendants, entered the apartment of the victim, Harry Edwards. Defendants were armed with a pistol, a rifle, and a machete. They threatened Edwards, and even made a small cut on his throat with the machete. The cut left a scar visible at the trial more than one year later. After tieing him to a chair, the culprits asked the victim where he kept his money, and assured him that if he co-operated, he would not be hurt. Then, after rummaging through the apartment, they took what they wanted, gagged the victim, and left.

Edwards testified in detail and his testimony was uncontradicted. The fact of robbery was, to some degree, corroborated by the testimony of George Maisonave, who found Edwards bound in his apartment a short while later.

Moreover, Edwards positively identified all four defendants on trial as the perpetrators. Indeed, he knew two of the four culprits, including defendant Almestica, before the crime had been committed. None of the four defendants at the trial testified. The case was, therefore, all but conclusive.

Two questions concerning Edwards’ testimony, neither of them significant, are raised. The first involves defendants’ method of entry. Edwards testified to a forcible entry. On his cross-examination defense counsel, however, sought to establish that the entry was consensual, emphasizing the victim’s prior acquaintance with two of the culprits on trial. Although Edwards never retreated from his direct testimony, the mode of entry is immaterial, as the Trial Judge noted, because all of the elements of the crimes charged, however the entry, were satisfied by the robbers’ subsequent behavior.

The second question raised involves the victim’s inability, on cross-examination, to identify positively which robber performed particular acts during the ordeal. Edwards, in admitting his present difficulty, steadfastly maintained the accuracy of his prior, precise identification of the role of each defendant, made to the police shortly after the events occurred, more than a year before the trial. This past recollection recorded suffices to remove any doubt as to the "identification” testimony (see Richardson, Evidence [10th ed], §§ 469-473).

The principal issue in the case arises not from Edwards’ testimony, but from the improper admission of testimony by a police officer who, later on the night in question, had stopped, and then searched, a suspicious "gypsy” taxicab, only to find the four culprits, the contraband and loot, and the weapons used in the Edwards’ robbery. At a pretrial hearing, a motion to suppress this evidence was denied, and the evidence was admitted at trial.

Under People v Ingle (36 NY2d 413, 414-415), and People v Simone (39 NY2d 818), both decided after the trial in this case, the taxicab search, made only on a "hunch”, was unlawful. On separate appeals, the Appellate Division, relying on the now conceded unlawfulness of the search, reversed defendants’ convictions on the law alone, and remanded the cases for new trials.

On appeal, the People contend that the constitutional error was harmless. The Supreme Court has said that Federal constitutional error in a criminal case may be harmless only if it is "harmless beyond a reasonable doubt”, that is, if there is no reasonable possibility that the erroneously admitted evidence contributed to the conviction (Chapman v California, 386 US 18, 22-24, supra; see Fahy v Connecticut, 375 US 85, 86). The test is concededly stricter than the one applied to nonconstitutional error in New York (People v Crimmins, 36 NY2d 230, 242). The very fact that a test has been articulated, however, implies necessarily that in some cases Federal constitutional error may be harmless (Harrington v California, 395 US 250, 254; cf. People v Ramos, 40 NY2d 610, 618-619).

This is such a case. The cogent testimony of Edwards, the crime victim, who knew and recognized two of the culprits, is, by itself, uncontradicted and all but conclusive. The able and experienced Trial Judge explicitly credited Edwards’ testimony, and noted the extensive corroboration by the witness Maisonave who discovered Edwards tied up. One of the robbers, Rodriguez, made an admission to Edwards after the arrest but, arguably, this may be attributed to the unlawful search and seizure. Hence, for the purpose of this case, in view of the other evidence it may be disregarded.

Defendants note that, in giving his oral decision, the Trial Judge made extensive use of the improperly admitted testimony. Of course he did. Any knowledgeable Judge, presented with additional conclusive evidence, apparently admissible under the then prevalent automobile stop rule, would have done as much (see, e.g., People v Rowell, 27 NY2d 691). Such use does not, however, preclude application of the harmless error doctrine. So long as there is no reasonable possibility that admission of the evidence contributed to the conviction, and there is none in this case, the error was harmless and the conviction should not be nullified as a matter of law.

Crucial is that Edwards’ testimony was entirely independent of the unlawful search. If Edwards’ knowledge of the crime or ability to identify defendants had been based on the results of a prior unlawful search, it would be more difficult to find the error harmless. Even where the unlawful actions of the police lead to a live and willing witness, the testimony of the witness may not be gagged by an exclusionary rule (People v Mendez, 28 NY2d 94, esp pp 100-101, cert den 404 US 911). But here, a fortiori, where Edwards was the victim of the crime, and hence where his knowledge of and willingness to testify about defendants’ criminal activity preceded the unlawful search, the taint does not project backwards.

Thus, the case is distinguishable from Fahy v Connecticut (375 US 85, supra). There defendant had confessed to the crime charged after being advised that the police had recovered the paint and brush used in commission of the crime. Both the illegally seized evidence and the confession were admitted at trial, and defendant was convicted. The Supreme Court reversed the conviction, despite defendants’ full confession, noting that the confession may have been induced by the illegally seized evidence (id., pp 90-91; but cf. dissenting opn per Harlan, J., pp 92-94). Thus, that confession was not a source of evidence entirely independent of the taint, and the error in admitting the illegally seized evidence was not harmless. Without the confession and without the paint and brush the remaining evidence was circumstantial only and insufficient by any standard applicable to proof of criminal liability by circumstantial evidence alone (People v Cleague, 22 NY2d 363, 365-366).

Accordingly, the orders of the Appellate Division should be reversed, and the matters remitted to the Appellate Division for a review of the facts.

Cooke, J. (dissenting).

When there is Federal constitutional error, as there was in this case, a reversal of the conviction and the order of a new trial is required unless the error was harmless under the test—for harmless constitutional error— set down by the Supreme Court of the United States. The standard is that a reversal must occur if "there is a reasonable possibility that the evidence complained of might have contributed to the conviction” (Fahy v Connecticut, 375 US 85, 86-87). As with the requirement of proof of guilt beyond a reasonable doubt, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt” (Chapman v California, 386 US 18, 24). These words were carefully articulated to provide a workable standard, and it is apparent that they were intended to place a heavy burden on one seeking to demonstrate that an error was harmless. Indeed, as this court has recognized, it is "perhaps the most demanding test yet formulated” (People v Crimmins, 36 NY2d 230, 241). Considering the trial under scrutiny, it is respectfully urged that the record does not support the majority’s conclusion that the error was harmless under this most rigorous test.

While the Trial Justice stated in his findings that he credited the testimony of Mr. Edwards, the complaining witness, he also made extensive use of the evidence that resulted from the unlawful search. The majority, however, places unwarranted emphasis on the fact that the Edwards’ testimony was independent of the unlawful search. The proper significance of the evidence complained of is that it revealed to the trier of the facts that defendants were in possession of articles relating to the crime, including proceeds of the robbery and a machete, the latter item lending support to Edwards’ story that it was these defendants who made a small cut on his throat with a machete. That this evidence was separate and apart from Edwards’ testimony in no way negates its part in the picture presented to the Trial Justice. He was both Judge and jury and, while he may have harbored some doubts concerning the testimony of Edwards, any doubts were certainly disspelled by the physical evidence which is always likely to be more persuasive and which undoubtedly sealed the lid on the People’s case.

If the standard was simply whether it is possible to subtract out the tainted evidence and still arrive at a guilty verdict, one could accept the majority’s conclusion, but a "legal residuum” rule has no applicability or validity here. The test is far more exacting. To repeat: "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” (Fahy v Connecticut, supra, pp 86-87 [emphasis added]). In the instant case, not only is it reasonably possible, indeed it is very likely, not merely that such evidence "might have contributed”, but that it was in actuality a substantial factor in the conviction.

There can, of course, always be a difference of opinion on the question of whether evidence contributed to a conviction, and hence whether an error is harmless, but that is only half the problem in this case. The real danger with the majority’s analysis is that it provides a model by which an appellate court may separate out the tainted evidence, examine the permissible evidence,and virtually ignore the possibility that the tainted evidence might have contributed to the conviction. Such a concept bears close resemblance to and is basically no different than the harmless error doctrine or standard in regard to nonconstitutional error adopted by this court in People v Crimmins (36 NY2d 230, supra), and explained in this fashion: "What is meant here, of course, is that the quantum and nature of proof, excising the error, are so logically compelling and therefore forceful in the particular case as to lead the appellate court to the conclusion that 'a jury composed of honest, well-intentioned, and reasonable men and women’ on consideration of such evidence would almost certainly have convicted the defendant” (pp 241-242). By its holding the majority has in effect given license to the prosecutor to commit constitutional error in any case where he feels there is overwhelming independent evidence to support the conviction because, under the majority’s formulation, the additional conclusive evidence can be separated out by the appellate court as long as the remaining proof is from "a source of evidence entirely independent of the taint” (p 227) and, of course, overwhelmingly persuasive. This is the great vice of the rule, apart from its misapplication of Chapman and Fahy.

The instant case adapts well to the majority’s analysis, but the mechanism created will fit neatly into many future cases. That this case was tried before a Judge without a jury should not negate the principles involved. Indeed, the influence of the tainted proof is all the more obvious in this case from the Trial Justice’s findings. The test laid down by the Supreme Court is whether the tainted evidence might have contributed to the conviction, and not whether the remaining evidence is independent of the taint. The tainted and the untainted evidence present a composite picture, and the appellate courts should not cull out the tainted evidence, and, upon examining the new sparser picture, reach its own conclusion as to what verdict would have been reached by a jury or even a Trial Justice. That, it is submitted, is the effect of the majority’s holding, for it simply cannot be said that the testimony of the victim and the tainted physical evidence were not, at the very least, coequal contributors to defendants’ conviction in this case.

Accordingly, the order of the Appellate Division, remanding the matter for a new trial, should be affirmed.

Judges Jasen, Gabrielli, Jones, and Wachtler concur with Chief Judge Breitel; Judge Cooke dissents and votes to affirm in a separate opinion in which Judge Fuchsberg concurs.

Orders reversed and the matters remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.  