People v. Korn

40 A.D.2d 561, 334 N.Y.S.2d 115, 1972 N.Y. App. Div. LEXIS 4003

Opinion

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered June 25, 1970, convicting him of sale or possession of depressant and stimulant drugs, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts, and indictment dismissed. In our opinion the People failed to prove beyond a reasonable doubt that the consent to search the premises in question was voluntarily executed by defendant and that he knowingly and intelligently waived his constitutional rights. If the indictment were not being dismissed, a new trial would be required, since we find it was prejudicial error for the trial court to permit cross-examination of defendant as to prior criminal acts, for the purpose of impeaching his credibility, without ascertaining whether the prosecutor had a reasonable basis for his questions- and was therefore acting in good faith. Two of the questions concerned a count of the indictment which had been dismissed by the court on defendant’s motion, for insufficiency of evidence before the Grand Jury, and were improper since the dismissal bespeaks the absence of a reasonable basis for believing the truth of the charge (see People v. Sanza, 37 A D 2d 632, and eases there cited; People v. Nasti, 37 A D 2d 980, 981). Rabin, P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.