People v. Bennette

• Decision Date: 11 May 1982
• Parties: , 436 N.E.2d 1249 The PEOPLE of the State of New York, Appellant, v. James BENNETTE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 647

451 N.Y.S.2d 647

56 N.Y.2d 142, 436 N.E.2d 1249

The PEOPLE of the State of New York, Appellant, v. James BENNETTE, Respondent.

Court of Appeals of New York.

May 11, 1982.

Eugene Gold, Dist. Atty. (Mary Brienza, Asst. Dist. Atty., of counsel), for appellant

Jerome Rosenbluth, Staten Island, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

A jury found the defendant guilty of robbery, burglary and assault. The Appellate Division reversed the conviction on the law and ordered a new trial. It held that the trial court abused its discretion in permitting the prosecutor to impeach the defendant's credibility by questioning him about a prior conviction involving sodomy of an eight-year-old girl. One Justice dissented and granted the People leave to appeal to this court.

The robbery occurred at a Brooklyn apartment on the evening of May 20, 1976. The complainant stated that on that date she left her fifth-floor apartment at approximately 7:00 p.m. and returned four hours later. When she turned her key she found that the door was not locked. At this point the defendant opened the door from the inside, told her in obscene terms that she did not need a key and pointed a gun at her. Complainant also noticed that defendant was carrying a toaster oven which her daughter had given her for Mother's Day. As the complainant turned away the defendant struck her with the gun on the nape of the neck knocking her to the ground but not rendering her unconscious. He then ran into the adjoining apartment where he resided with his sisters.

Subsequent investigation by the complainant's children and the police showed that her apartment had been ransacked. A door at the rear of the apartment, leading to a "terrace", had been found open and a window next to the door had been broken. It was also noted that complainant's terrace was separated from the adjoining terrace by a fiberglass partition.

At the trial, held in February, 1977, defendant testified on his own behalf. He admitted residing next to complainant's apartment at the time of the crime but denied any involvement in it. He claimed that he had been in his apartment when he heard a scream. He then went out to the hall where he met several neighbors, one of whom knocked on the complainant's door but received no response. He remained in the hall approximately 10 minutes talking with the neighbors and then returned to his apartment. He had not reported the incident to the police or the apartment security officers.

Before the defendant testified, his attorney applied to the court to preclude the prosecutor from questioning the defendant concerning a 1973 felony conviction for which he had received a four-year sentence and was, in fact, still on parole. Counsel noted that the conviction was for a sex offense involving a child "about ten years of age". The application was "predicated solely on the inflammatory nature of the * * * crime that is involved". After hearing the prosecutor, who opposed the application, the court denied the defendant's request. The court held that the conviction showed that the defendant had previously advanced his interests at the expense of society; that it was therefore probative of the defendant's honesty and integrity and that it would be "unfair" for the defendant to testify without permitting the jury to consider this conviction in assessing his credibility.

Thus at the trial the defendant admitted that he had previously pleaded guilty to a crime. On cross-examination he initially stated that the victim of that crime was a child "about 10 years old", but later conceded that she was only eight. When asked what the conviction was for he simply stated "a sodomy act" and became evasive when the prosecutor asked him what he had done. The court then rephrased the prosecutor's question as follows:

"The Court: What did you tell the judge when you pleaded guilty?

"The I told the judge that I committed a sexual act with a 10 year old.

"The Court: What kind of sexual act?

"The What do you mean.

" Isn't it correct you placed your penis in the mouth of an eight year old girl by force?

" Yes.

" No further questions."

As noted, the Appellate Division reversed and ordered a new trial concluding that the trial court abused its discretion in permitting this line of questioning (80 A.D.2d 858, 436 N.Y.S.2d 756). It also suggested (p. 859, 436 N.Y.S.2d 756) that the trial court had acted improperly by "interruptthe prosecutor's cross-examination to adduce the underlying facts of the prior crime". The Appellate Division stated (p. 859, 436 N.Y.S.2d 756) that the "specific nature" of the prior conviction ^* "is such as would inflame a jury so as to render any probative worth it might have secondary to the prejudice which would be created by its divulgence". The court also held (p. 859, 436 N.Y.S.2d 756) that the "prejudice created is apparent in view of the tenuousness of the People's case." The dissenting Justice perceived no abuse of discretion noting (p. 859, 436 N.Y.S.2d 756) that if evidence of the prior crime created a risk of undue prejudice it was only "because of the defendant's choice of the victim".

We have repeatedly emphasized that the question as to whether a prosecutor should be precluded from impeaching a defendant's credibility by reference to prior immoral, vicious or criminal acts "is largely, if not completely, a matter of discretion which rests with the trial courts and fact-finding intermediate appellate courts" (People v. Shields, 46 N.Y.2d 764, 765, 413 N.Y.S.2d 649, 386 N.E.2d 257; see, also, People v. Mackey, 49 N.Y.2d 274, 281-282, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Brown, 48 N.Y.2d 921, 425 N.Y.S.2d 54, 401 N.E.2d 177; People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413). In this instance, however, the Appellate Division did not rest its determination upon the exercise of its discretionary powers, but chose instead to decide the question as a matter of law. Its order specifically recites that the reversal is "on the law" and its memorandum opinion confirms the fact by establishing what appears to be an inflexible rule prohibiting the prosecutor from impeaching the defendant's credibility by cross-examination on prior sexual offenses involving a child, at least where some weaknesses are evident in the prosecutor's case. While we agree that those factors might properly serve as a basis for excluding evidence of a prior crime, we do not agree that the trial court was bound to do so as a matter of law.

Initially we recognize, as we have in the past, that evidence of the defendant's criminal record necessarily presents some risk of prejudice to his case (People v. Sandoval, 34 N.Y.2d 371, 376, 357 N.Y.S.2d 849, 314 N.E.2d 413 supra). When the prior crime is identical or similar to the offense charged the jury may, improperly, consider it as evidence of the defendant's predisposition to commit the crime charged ( People v. Sandoval, supra, pp. 377-378, 357 N.Y.S.2d 849, 314 N.E.2d 413; People v. Caviness, 38 N.Y.2d 227, 232-233, 379 N.Y.S.2d 695, 342 N.E.2d 496; People v....