OPINION OF THE COURT
Birns, J.
We would affirm the convictions of the defendant. With our dissenting colleagues, we share the same constant concern that each defendant in a criminal case should receive a fair trial. We cannot agree, however, with the dissenters’ conclusion that the convictions of this defendant should be reversed because of "the pervasively unfair character of the District [358] Attorney’s cross-examination of the defendant” and that "[i]n some instances the unfairness was compounded by the trial court’s rulings and comments.”
It appears to us that we are confronted with a hypercritical evaluation of the trial record, particularly the analysis of those portions of the defendant’s cross-examination which have been utilized to support the dissent. Our analysis of the record and the illustrative portions shows the prosecutor to be aggressive and on occasions, not judicious in fulfilling his prosecutorial function at the trial. But such conduct, faulted in this case, did not operate to deny the defendant "his fundamental right to a fair trial.” Hence, recourse by our dissenting colleagues to the rule in People v Crimmins (36 NY2d 230, 238), as justifying reversal of the convictions is not warranted. Moreover, from the same illustrative portions of the testimony, there is no basis for an objective conclusion that the trial court exacerbated the instances of misconduct charged to the prosecutor.
We do not need to quarrel whether or not the guilt was overwhelming for the dissent agrees that "the evidence of defendant’s guilt is persuasive and more than sufficient to justify the verdict.”
The dissent has set forth with accuracy the facts concerning the crimes attributed to the defendant. There is no need to outline the occurrence which led to the defendant’s arrest on the evening of May 18, 1977 and which brought about his indictment for the crimes of assault in the first degree and criminal possession of a weapon in the second degree. We note that the jury convicted the defendant of assault in the second degree and criminal possession of a weapon in the third degree.
In affirming the convictions, we find it necessary to respond to the attack made by the dissent on various portions of the cross-examination.
In criticizing the District Attorney’s effort to show the defendant’s source of money in obtaining cash bail of $2,500, the dissent argues that questions addressed to this subject served no legitimate purpose but amounted to an invitation to the jury to speculate that the bail money was derived from uncharged criminal acts.
The defendant during cross-examination had stated that the money for his bail was not his. As we read the record, that is the point at which cross-examination on this subject ended. [359] The dissent agrees that the trial court had properly permitted the defendant to be cross-examined under Sandoval (34 NY2d 371) as to previous misdemeanor convictions arising out of burglary charges.
In our view, there is no basis for the dissent’s observation that the trial court "effectively placed the seal of judicial approval on a wholly improper interrogation.”
We note that the defense counsel did not ask at this time that the court in any way take action against the prosecutor.
We agree with the dissent that the defendant’s bail status would appear to be irrelevant to the issues of guilt or innocence, or even credibility. Hence there appears to have been no justification for the District Attorney’s questions on this subject. However, inasmuch as the inquiry was very brief, we should not be sidetracked by claims that the jury speculated that the bail money’s source was uncharged criminal acts and, in any event, this brief inquiry, in the fact of the clear proof of guilt, could not have contributed to this verdict.
As to the "methadone” issue, it was the defendant who, under direct examination, offered testimony that he was on methadone thus inviting cross-examination on that subject. The District Attorney’s question, referring to methadone, "That’s a narcotic drug, right, you know that?” was improper, particularly since methadone has been explicitly excluded from the definition of narcotic drug in the Penal Law since 1975 (Penal Law, § 220.00, subd 7; and Commentary thereunder, McKinney’s Cons Laws of NY, Book 39, Cumulative Annual Pocket Part 1979-1980). The Assistant District Attorney should have been aware of that fact. We note, however, that there was no objection or correction by defense counsel. It does not appear to us that the impropriety was of such moment as to be considered a strong factor justifying reversal.
Defense counsel appropriately objected to the question which followed closely: "Are you presently under the influence of methadone?” Whether this objection was to form only or to substance is not clear. The ensuing colloquy between counsel, however, impelled the court to observe that it had the responsibility in the first instance to determine whether the witness was competent to testify, and indicated that for that reason the question was allowed.
"In general, all persons offered as witnesses are presumed to be competent until the contrary is shown to the satisfaction of the court, by which as a general rule, all such questions are to [360] be determined” (Richardson, Evidence, 10th ed, Competency of Witnesses, § 385).
The statement of the court appears to have been an answer to the statement of the District Attorney that the competency of a witness on the stand is always an issue. The court attempted to demonstrate that the determination of that issue was for the court and not the jury.
The dissent has elaborated on this aspect of the cross-examination as demonstrative of the District Attorney’s unfairness and as derogatory of society’s worthwhile effort to respond to its chronic narcotics problems. The dissent finds that the District Attorney was implying that an addict on a methadone program is prone to commit violent acts.
If this was the District Attorney’s purpose then the criticism contained in the dissent is justified. But the record on this point was not so extensive or so clear as to make this purpose as apparent as the dissent claims it was.
Finally, the dissent is critical of the District Attorney’s statement in front of the jury that the defendant went to trial in this case because unlike other cases involving the defendant, he was unable to obtain probation. Objection to this statement was made and sustained. The statement was inappropriate and had no relevancy to any of the issues before the jury. It could only serve to prejudice the defendant.
Although the court did not instruct the jury as it might have done to disregard the statement of the District Attorney, the court in its charge instructed the jury that only the sworn testimony could be considered evidence. It is to be presumed, in the absence of a showing to the contrary, that the jury met its responsibility to render a fair and impartial verdict on the evidence before it.
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OPINION OF THE COURT
Birns, J.
We would affirm the convictions of the defendant. With our dissenting colleagues, we share the same constant concern that each defendant in a criminal case should receive a fair trial. We cannot agree, however, with the dissenters’ conclusion that the convictions of this defendant should be reversed because of "the pervasively unfair character of the District [358] Attorney’s cross-examination of the defendant” and that "[i]n some instances the unfairness was compounded by the trial court’s rulings and comments.”
It appears to us that we are confronted with a hypercritical evaluation of the trial record, particularly the analysis of those portions of the defendant’s cross-examination which have been utilized to support the dissent. Our analysis of the record and the illustrative portions shows the prosecutor to be aggressive and on occasions, not judicious in fulfilling his prosecutorial function at the trial. But such conduct, faulted in this case, did not operate to deny the defendant "his fundamental right to a fair trial.” Hence, recourse by our dissenting colleagues to the rule in People v Crimmins (36 NY2d 230, 238), as justifying reversal of the convictions is not warranted. Moreover, from the same illustrative portions of the testimony, there is no basis for an objective conclusion that the trial court exacerbated the instances of misconduct charged to the prosecutor.
We do not need to quarrel whether or not the guilt was overwhelming for the dissent agrees that "the evidence of defendant’s guilt is persuasive and more than sufficient to justify the verdict.”
The dissent has set forth with accuracy the facts concerning the crimes attributed to the defendant. There is no need to outline the occurrence which led to the defendant’s arrest on the evening of May 18, 1977 and which brought about his indictment for the crimes of assault in the first degree and criminal possession of a weapon in the second degree. We note that the jury convicted the defendant of assault in the second degree and criminal possession of a weapon in the third degree.
In affirming the convictions, we find it necessary to respond to the attack made by the dissent on various portions of the cross-examination.
In criticizing the District Attorney’s effort to show the defendant’s source of money in obtaining cash bail of $2,500, the dissent argues that questions addressed to this subject served no legitimate purpose but amounted to an invitation to the jury to speculate that the bail money was derived from uncharged criminal acts.
The defendant during cross-examination had stated that the money for his bail was not his. As we read the record, that is the point at which cross-examination on this subject ended. [359] The dissent agrees that the trial court had properly permitted the defendant to be cross-examined under Sandoval (34 NY2d 371) as to previous misdemeanor convictions arising out of burglary charges.
In our view, there is no basis for the dissent’s observation that the trial court "effectively placed the seal of judicial approval on a wholly improper interrogation.”
We note that the defense counsel did not ask at this time that the court in any way take action against the prosecutor.
We agree with the dissent that the defendant’s bail status would appear to be irrelevant to the issues of guilt or innocence, or even credibility. Hence there appears to have been no justification for the District Attorney’s questions on this subject. However, inasmuch as the inquiry was very brief, we should not be sidetracked by claims that the jury speculated that the bail money’s source was uncharged criminal acts and, in any event, this brief inquiry, in the fact of the clear proof of guilt, could not have contributed to this verdict.
As to the "methadone” issue, it was the defendant who, under direct examination, offered testimony that he was on methadone thus inviting cross-examination on that subject. The District Attorney’s question, referring to methadone, "That’s a narcotic drug, right, you know that?” was improper, particularly since methadone has been explicitly excluded from the definition of narcotic drug in the Penal Law since 1975 (Penal Law, § 220.00, subd 7; and Commentary thereunder, McKinney’s Cons Laws of NY, Book 39, Cumulative Annual Pocket Part 1979-1980). The Assistant District Attorney should have been aware of that fact. We note, however, that there was no objection or correction by defense counsel. It does not appear to us that the impropriety was of such moment as to be considered a strong factor justifying reversal.
Defense counsel appropriately objected to the question which followed closely: "Are you presently under the influence of methadone?” Whether this objection was to form only or to substance is not clear. The ensuing colloquy between counsel, however, impelled the court to observe that it had the responsibility in the first instance to determine whether the witness was competent to testify, and indicated that for that reason the question was allowed.
"In general, all persons offered as witnesses are presumed to be competent until the contrary is shown to the satisfaction of the court, by which as a general rule, all such questions are to [360] be determined” (Richardson, Evidence, 10th ed, Competency of Witnesses, § 385).
The statement of the court appears to have been an answer to the statement of the District Attorney that the competency of a witness on the stand is always an issue. The court attempted to demonstrate that the determination of that issue was for the court and not the jury.
The dissent has elaborated on this aspect of the cross-examination as demonstrative of the District Attorney’s unfairness and as derogatory of society’s worthwhile effort to respond to its chronic narcotics problems. The dissent finds that the District Attorney was implying that an addict on a methadone program is prone to commit violent acts.
If this was the District Attorney’s purpose then the criticism contained in the dissent is justified. But the record on this point was not so extensive or so clear as to make this purpose as apparent as the dissent claims it was.
Finally, the dissent is critical of the District Attorney’s statement in front of the jury that the defendant went to trial in this case because unlike other cases involving the defendant, he was unable to obtain probation. Objection to this statement was made and sustained. The statement was inappropriate and had no relevancy to any of the issues before the jury. It could only serve to prejudice the defendant.
Although the court did not instruct the jury as it might have done to disregard the statement of the District Attorney, the court in its charge instructed the jury that only the sworn testimony could be considered evidence. It is to be presumed, in the absence of a showing to the contrary, that the jury met its responsibility to render a fair and impartial verdict on the evidence before it.
It is regrettable that the District Attorney by improper, unnecessary questions has brought this case close to the point of reversal. However, we cannot say that the defendant’s trial was unfair. This trial, like most trials, was not, as we have noted, without blemishes and failings. But because a trial is not perfect does not mean that the trial was unfair. Put another way, "A defendant is entitled to a fair trial, but not a perfect one” (Lutwak v United States, 344 US 604, 619). As in the Crimmins case (36 NY2d 230, 238), "[t]here is no predicate here * * * for any claim that this defendant * * * was deprived of any * * * basic right.” (See, also, People v Brown, 62 AD2d 715, affd 48 NY2d 921; People v Kingston, 8 [361] NY2d 384, 387.) Therefore, a reversal, on the ground that the defendant did not receive a fair trial, is not warranted.
The close difference of opinion which divides this court on this issue of a fair trial serves to remind us of the proper role of a prosecutor. "The [District Attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” (Berger v United States, 295 US 78, 88 [1934]).
Finally, we do not agree with defendant’s contention that the jury’s verdict of guilty of assault in the second degree is repugnant to the verdict of acquittal of criminal possession of a weapon in the second degree. The elements of these crimes are not identical. While it may appear that these verdicts are inconsistent they are in fact not, as there is a rational theory which can support each one (People v Pugh, 36 AD2d 845, 846). In finding the defendant not guilty of criminal possession of a weapon in the second degree the jury may have concluded that the defendant possessed the weapon initially without any intent to use it unlawfully but that in the course of the altercation with Moreau decided to and did use the weapon offensively, that is, beyond the lawful bounds of self-defense. In any event, verdicts which are inconsistent but not repugnant are valid (People v Torres, 5 AD2d 134, affd 5 NY2d 804, cert den 359 US 993; People ex rel. Troiani v Fay, 13 AD2d 999, cert den 368 US 1003).
Accordingly, the judgment of the Supreme Court, Bronx County (Silbermann, J., and a jury), rendered August 1, 1978, convicting the defendant of the crimes of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of two and a third to seven years’ imprisonment, should be affirmed.