People v. Williams

41 A.D.2d 609, 340 N.Y.S.2d 407, 1973 N.Y. App. Div. LEXIS 5178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1973
• Status: Published

Opinion

-Judgment, Supreme Court, Bronx County, rendered January 10, 1972, convicting defendant of assault in the second degree, assault; in the third degree, robbery in the second degree, and possession of a weapon as a misdemeanor and sentencing defendant to concurrent indeterminate terms of not less than 4 nor more than 12 years, ¿firmed. Although defendant advances several grounds of supposed error we are all in accord that only one of these merits any discussion Defendant testified in his own behalf It is claimed that the cross examination exceeded the bounds of propriety A majority of the court does not so reg~rd it Defendant was cross examined as to some five prior crpmnal or uninoral acts There is no claim that the o~uestions were asked without basis Under such circumstances the range of the cross exaniinatioi~ is largely in the discretion of the trial court (People v Sorge, 301 N~ Y 19~) We cannot say that that discretion was abused Concur -Lane, Steuer and Tilzer, JJ, Kupferman, J P, and Murphy, J, dissent in the following memorandum by Murphy, J It is undisputed that an altercation occurred between defendant and a police officer.,in the building where~defendant reside4.... Since each participant gave a different version as to who was the aggressor, a clear question of credibility was presented which the jury determined against the defendant If this issue had. been fairly presented, we would not ~uarrel with the jury's resolution of the testimonial inconsistencies In our view, however, the credibility issue was not fairly presented Approximately one half (about 60 transcribed pages) of defendant's cross examination was devoted to efforts to impeach his credibility Although defendant bad one prior youthful offender adjudication, but no prior criminal convictions~ lie was questioned extensively regarding five prior criminal or immoral acts While there appears to have been a sufficient basis shown for these questions, we nevertheIe~s conclude that the unwarranted and disproportionate emphasis placed on these eoUateral acts deprrvnd defendant of a fair trial as a matter of law We recogmze~ of course, the general proposition that a defendant who elects to take the stand and to testify in his own behalf invites inquiry concerning any previously committed inrinoral, vicious or criminal acts (Cf. United States v. Palumbo, 401 F. 2d 270, 273, cert. den. 394 .U. S. 947; United States v. Puco, 453 F. 2d 539, 542; People v. King, 72 Misc 2d 540) Bowever, a balance must be, struck "b~t*eeu. the prObatiye vahie:of such proof and the dange~. of prejudice which it presents to an accused" (People v. Schwartzman, 24 N Y 2d 241, 247.) While the manner and extent of such cross examinatio~i :Ii~s largely with the d~sèretioa: of the Judge (People v. Sorge, 301 N. Y. 198)~ where,: as here, it .~ áppa~ent that testimony regarding these uncharged crimes th~d no probative ~a1ue a~t was introdithed solely to prejudice i~ jury by showing defendant's criminal disposition and violent nature, an a~pella~e court should tlQt hesitate to reverse a conviction for error in failing to exclude it (People v. McKinney, 24 N Y 2d 180; People v. Fair, 35 A D 2d 519) Accordingly, the judgment appealed from should be reversed and a new trial