People v. Duffy

• Decision Date: 22 April 1974
• Citation: 44 A.D.2d 298,354 N.Y.S.2d 672
• Parties: The PEOPLE, etc., Respondent, v. Anthony DUFFY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 672

354 N.Y.S.2d 672

44 A.D.2d 298

The PEOPLE, etc., Respondent, v. Anthony DUFFY, Appellant.

Supreme Court, Appellate Division, Second Department.

April 22, 1974.

Kadane & Spizz, Hempstead (Harvey W. Spizz, Marilyn Sloane, Hempstead, and Perry S. Reich (legal intern) of counsel), for appellant.

William Cahn, Dist. Atty., Nassau County (Calvin E. Rafuse, Jr., Mineola, of counsel), for respondent.

Before HOPKINS, Acting P.J., and SHAPIRO, CHRIST, BRENNAN and MUNDER, JJ.

SHAPIRO, Justice.

The defendant, who has been convicted of robbery in the third degree and grand larceny in the third degree, complains that the trial court committed reversible error in denying his pretrial motion to prohibit the District Attorney from questioning him about any prior convictions or as to the commission by him of specific prior criminal or immoral acts. That is the principal issue to be determined in this case.

The operative facts in the record leading to the defendant's conviction may be simply stated. The complainant testified, in essence, that he asked two men, including the defendant, to help get his automobile started. They were unsuccessful. When the other man left, the defendant grabbed the complainant with his right hand, kept his left hand in his pocket simulating a weapon and demanded money. He took all the money the complainant had ($5 in bills and some change). He was immediately apprehended and the money was found on his person.

The defendant took the stand and testified that he had merely asked for some money as payment for having assisted the complainant, although he admitted that he left the complainant without having succeeded in starting his car.

Prior to the trial the defendant moved to restrain the prosecutor from cross-examining him for impeachment purposes--if he were to take the witness stand--with respect to the underlying facts of two prior youthful offender adjudications. Although the prosecutor could not ask the defendant about those adjudications, because they were not criminal convictions (CPL 720.35, subd. 1), he could, under existing case law, have questioned the defendant about the underlying facts, in order to impeach his credibility (People v. Vidal, 26 N.Y.2d 249, 309 N.Y.S.2d 336, 257 N.E.2d 886; People v. Geller, 27 A.D.2d 843, 278 N.Y.S.2d 41). In support of his motion, the defendant argued, in essence, that the proof of his prior acts of violence (assaults, resisting arrest, harassment) had little bearing on the issue of his veracity and credibility and that by permitting the prosecutor to question him on those points the prosecutor could paint a picture of 'professional criminality' (People v. Zackowitz, 254 N.Y. 192, 198, 172 N.E. 466, 468), courting the danger that the jury would give more weight to the defendant's past conduct in arriving at a judgment of conviction than it would give to the evidence in chief. To guard against this danger, the defendant suggested that the court determine, prior to the trial, that the prosecutor be barred from using the facts underlying his youthful offender adjudications to impeach his credibility if he chose to take the witness stand on his own behalf.

The motion was denied on the ground that 'as long as the questions are asked in good faith, the district attorney may question the defendant concerning his prior criminal record.'

During cross-examination the defendant, over objection, was asked whether he had punched a police officer on May 29, 1970. He denied any such occurrence. He was then shown a document and asked whether it refreshed his recollection of the events of May 29, 1970. His denial remained unaffected.

Questioning with regard to the date of December 23, 1971 led to an admission by the defendant that on that day he had an incident with an individual named Samuel Brown, but he denied that he resisted an attempt to place him under arrest.

The long recognized New York rule has been that a defendant may not only be cross-examined as to any criminal convictions but also as to his commission of any vicious or criminal acts, so long as the questions are asked in good faith, i.e., with some reasonable basis in fact for putting them. However, recognition has also been afforded to the corollary principle that the scope of such cross-examination rests in the sound discretion of the trial court (People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637; People v. Webster,139 N.Y. 73, 34 N.E. 730).

The statute (CPL 60.40, subd. 1) governing the use of prior convictions to impeach a defendant who has taken the stand is a permissive one (see the practice commentary by Professor Richard G. Denzer on CPL 60.40 in McKinney's Cons.Laws of N.Y., Book 11A, pp. 255--256). The statute (subd. 1) reads:

'If in the course of a criminal proceeding, any witness, including a defendant, is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction. If in response to proper inquiry whether he has ever been convicted of any offense the witness answers in the negative or in an equivocal manner, the adverse party may independently prove any previous conviction of the witness.'

The statute thus prescribes the procedure if a witness, including a defendant, 'is properly asked whether he was previously convicted of a specified offense,' but it does not answer the substantive question of whether a prosecutor may, under some circumstances, be precluded from making that 'proper' inquiry.

Although courts at Nisi prius have arrived at differing conclusions as to the power of a court to prohibit cross-examination of a defendant as to prior convictions, or, as in this case, as to prior criminal or immoral acts, ¹ I have been unable to find any decision in New York on the appellate level which has considered that issue.

In Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, the court construed the effect of section 305 of title 14 of the District of Columbia Code. That statute, as does ours (CPL 60.40), permitted, but did not require, the impeachment of a defendant who had taken the stand with reference to prior juvenile convictions. Said the court (pp. 768--769):

'The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.

'In exercising discretion in this respect, a number of factors might be relevant, such as the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. The goal of a criminal trial is the disposition of the charge in accordance with the truth. The possibility of a rehearsal of the defendant's criminal record in a given case, especially if it means that the jury will be left without one version of the truth, may or may not contribute to that objective. The experienced trial judge has a sensitivity in this regard which normally can be relied upon to strike a reasonable balance between the interests of the defendant and of the public. We think Congress has left room for that discretion to operate.'

In Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, Judge (now Chief Justice) Burger expanded the effect to be given the Luck decision. He agreed that proof of a prior conviction may have genuine probative value on the issue of credibility, but felt that because of the ever present possibility of undue prejudice its receipt should be discretionary. His decision contemplated an on-the-record consideration by the trial judge, with the burden resting upon the defendant to demonstrate to the trial court sufficient reason to withhold past convictions from the jury. Such proof, he held, should be barred only if its prejudicial effect far outweighed its probative relevance.

Judge Burger, in laying down the general guidelines to be followed, then said (pp. 940--941):

'In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A 'rule of thumb' thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.

'A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay...