People v. Beale

• Decision Date: 13 December 1979
• Citation: 73 A.D.2d 547,423 N.Y.S.2d 6
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald BEALE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 6

423 N.Y.S.2d 6

73 A.D.2d 547

The PEOPLE of the State of New York, Respondent, v. Donald BEALE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 13, 1979.

T. L. Gazianis, New York City, for respondent.

J. Minoff, New York City, for defendant-appellant.

Before BIRNS, J. P., and FEIN, SULLIVAN, MARKEWICH and LYNCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered August 3, 1977, convicting defendant of robbery in the first degree, and sentencing him thereupon to four to fifteen years, unanimously reversed, on the law, and as a matter of discretion in the interest of justice, and the matter remanded for a new trial.

Defendant, with the aid of an unidentified coparticipant, was alleged to have beaten, tied and robbed William Davis, a neighbor, in Davis' apartment. Davis had known defendant for about six months, as they both lived in the same apartment building. Davis testified that on the day in question he freely admitted defendant and the accomplice into his apartment. An argument ensued. Davis was tied to a chair, gagged and threatened with a knife. Defendant and his friend, making three trips, looted the apartment. When they had left the apartment after the third trip Davis managed to work his way toward the door and lock it to prevent further entry. After untying himself Davis purportedly telephoned the police, who did not respond to the call. At 10:30 that night, seven hours later, Davis, accompanied by a neighbor, went to the police station to report the crime.

On direct examination Davis admitted to a prior criminal record which included a 1964 conviction. On cross-examination Davis denied ever having used or possessed drugs, or ever being convicted of drug sale or possession. The 1964 conviction was for sale and possession of hallucinogenic drugs or preparations. Nevertheless, the court prevented defendant from presenting a certificate of the conviction to impeach Davis' credibility, despite an earlier indication that it would not bar admission of the certificate.

Admission of proof of a previous conviction by way of a certificate is permissible when a witness denies ever having been convicted of the underlying offense. (CPL § 60.40(1); People v. Gray, 41 A.D.2d 125, 341 N.Y.S.2d 485.) And, of course, he may be cross-examined with respect to any immoral, vicious, or criminal act which may affect his character and show him to be unworthy of belief. (People v. Webster, 139 N.Y....