People v. Ellis

94 A.D.2d 652, 462 N.Y.S.2d 212, 1983 N.Y. App. Div. LEXIS 18059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1983
• Status: Published

Opinions

. Judgment, Supreme Court, Bronx County (Quinn, J.), rendered June 16,1977, convicting defendant following a jury trial of robbery in the first degree, criminal possession of a weapon in the fourth degree and criminal possession of a controlled substance in the seventh degree, reversed, on the law, on the facts and as a matter of discretion in the interest of justice, and the matter remanded for a new trial. We disagree with the ruling of the trial court on defendant’s Sandoval motion which permitted cross-examination as to a 12-year-old 1965 conviction for breaking and entering in Virginia and to an 11-year-old 1966 conviction for unlawful entry. These convictions were sufficiently remote in time to conclude that they should have had no substantive effect upon defendant’s credibility. The Trial Justice, in rejecting the argument that the earlier convictions were remote, found that defendant’s frequent brushes with the law demonstrated a tendency to place his own interests above those of society. On this basis, the court permitted cross-examination on the earlier convictions in addition to a 1968 conviction for criminal trespass, a 1970 conviction for burglary and another 1970 conviction for violation of a Federal gun law. In so concluding, the Trial Justice overlooked the essence of the ruling by the Court of Appeals in People v Sandoval (34 NY2d 371, 376), that “[l]apse of time, however, will affect the materiality if not the relevance of previous conduct.” In effect, as a result of the ruling by the trial court, the jury was permitted to consider defendant’s propensity for committing criminal acts, which was error (People v Mayrant, 43 NY2d 236). That there were other subsequent convictions which could be used on cross-examination did not revive the two prior, stale convictions, nor could the prosecutor properly impeach defendant’s credibility by resort to convictions which were so remote in time (see People v Pippin, 67 AD2d 413). The error and its harmful consequences were further accentuated in this case, where the prosecutor engaged in an unnecessarily extensive cross-examination of particulars dealing with each of the five prior convictions coupled with the reluctance, and, at time, refusal by defendant to respond as to the underlying events. Considering the nature of the proof which had been adduced bearing upon defendant’s guilt, the case did not warrant the repeated and persistent harping by the prosecutor in inquiring as to the events bearing upon the prior convictions, which amounted to overkill. The same holds true with respect to the extended, argumentative cross-examination of appellant, whereby the trial assistant elicited answers from the defendant that the complaining witness and the police officer were lying. This impropriety was heightened by the prosecutor’s repeated reference in summation that defendant had testified that the complainant and the officer had lied and, in referring to defendant’s motive to lie, suggested “he has a lot of explaining to do in this case.” Although an objection was sustained, the comment was repeated several times during the summation and was clearly improper, suggesting that the defendant had an obligation to offer an explanation. Under the circumstances and especially when viewed in conjunction with the other errors, the repeated inquiry as to whether defendant thought the prosecution witnesses were lying was highly improper (People v Davis, 63 AD2d 685; cf. People v Ingram, 49 AD2d 865). We also disagree with the procedure employed by the Trial Justice in permitting legal argument to be held in the presence of the jury at the time of the application by the prosecutor to strike the testimony of the alibi witness, who testified that he was with defendant less than an hour and a half prior to the robbery. The argument on the ruling, which addressed the operative legal standard with respect to the sufficiency of alibi testimony, should have been held out of the presence of the jury (cf. People v Kuss, 32 NY2d 436,445; People v Muniz, 62 AD2d 1025). While each of these errors, standing alone, might not warrant a reversal in light of the overwhelming proof bearing upon defendant’s guilt, we find the combined effect of the errors sufficiently prejudicial so as to impinge upon defendant’s right to a fair trial and to require remand for a new trial (People v Crimmins, 36 NY2d 230, 242). Whether the persistent, argumentative cross-examination resulted from an overzealous attitude on thé part of the prosecutor or otherwise, it was improper and may have infected the jury’s consideration of the case on the merits. As we observed in People v Petrucelli (44 AD2d 58, 59), “A prosecutor’s performance, aimed at justice and not a conviction, must reflect self-discipline (United, States v. White, 486 F. 2d 204; Code of Professional Responsibility, EC 7-13)” (see, also, People v Bailey, 58 NY2d 272). We have examined the other points raised by appellant and find them to be lacking in merit. Concur — Carro, J. P., Bloom, Fein and Kassal, JJ.