People v. Bennette

80 A.D.2d 858, 436 N.Y.S.2d 756, 1981 N.Y. App. Div. LEXIS 10699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1981
• Status: Published

Opinions

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 18, 1977, convicting him of robbery in the first degree, burglary in the first degree, and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. At trial, defendant stood accused of breaking into his neighbor’s apartment, stealing many items therefrom before she arrived home, and menacing and then hitting her over the head with a gun as he fled when she arrived home. With the exception of the complainant’s identification of the defendant, which we consider questionable, the People’s case is based upon inconclusive circumstantial evidence. The trial court considered defendant’s motion, pursuant to People v Sandoval (34 NY2d 371), to preclude the prosecutor from cross-examining him with regard to his prior conviction for sexual abuse. It appeared that the conviction was entered upon defendant’s plea of guilty predicated upon his admission that he had sodomized an eight-year-old girl by forcing her to engage in an act of fellatio. Not only did the Trial Justice deny the defendant’s motion, and specifically rule that the prosecution could, upon cross-examination, delve into the underlying facts of the prior conviction, but after defendant had decided to testify, the Trial Justice interrupted the prosecutor’s cross-examination to adduce the underlying facts of the prior crime. We think that the Sandoval ruling constituted an abuse of the court’s discretion. Where a defendant does not testify and absent certain exceptions to the rule not applicable here, a jury may not be informed of criminal acts committed by a defendant for which he is not on trial (see People v Molineux, 168 NY 264; People v Sandoval, supra). While it is true that the prior crime committed by the defendant was of a violent nature and as such would indicate that he would place his own interests above those of society (see People v Sandoval, supra, p 377), the specific nature thereof is such as would inflame a jury so as to render any probative worth it might have secondary to the prejudice which would be created by its divulgence (see People v Sandoval, supra, p 375). Accordingly, the People should have been precluded from utilizing defendant’s prior crime in cross-examining him. The prejudice created is apparent in view of the tenuousness of the People’s case. A new trial is required. We have considered the other contentions raised by defendant and find them to be without merit. Hopkins, J.P., Rabin and Gulotta, JJ.,