People v. Edwards

• Decision Date: 27 March 1981
• Citation: 80 A.D.2d 993,437 N.Y.S.2d 479
• Parties: PEOPLE of the State of New York, Respondent, v. Sammy L. EDWARDS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 479

437 N.Y.S.2d 479

80 A.D.2d 993

PEOPLE of the State of New York, Respondent, v. Sammy L. EDWARDS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 27, 1981.

Edward J. Nowak by Michael O'Neill, Rochester, for appellant.

Donald O. Chesworth, Jr., by William Gandy, Rochester, for respondent.

Before HANCOCK, J. P., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.

MEMORANDUM:

Prior to his trial on robbery and grand larceny charges, defendant was afforded a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413. On this appeal, defendant contends the trial court erred in ruling that if he were to take the stand in his own behalf at trial, defendant could be cross-examined with respect to the facts underlying a pending indictment charging him with another robbery. Although there are some cases holding such cross-examination to be erroneous (see People v. Hepburn, 52 A.D.2d 958, 383 N.Y.S.2d 626; see also People v. Pilgrim, 69 A.D.2d 825, 414 N.Y.S.2d 736; People v. Mohammed, 63 A.D.2d 655, 404 N.Y.S.2d 385), we cannot agree. The Court of Appeals has stated that although a witness may not be asked whether he has been indicted, the mere fact of indictment should not proscribe inquiry into the underlying criminal act (People v. Rahming, 26 N.Y.2d 411, 419, 311 N.Y.S.2d 292, 259 N.E.2d 727; People v. Morrison, 194 N.Y. 175, 178, 86 N.E. 1120; cf. People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637). This court has also taken the position that although a prosecutor may not ask a defendant whether he has been indicted, he may cross-examine the defendant concerning the facts underlying a pending indictment (People v. Jackson, 41 A.D.2d 686, 342 N.Y.S.2d 567; see also People v. Addison, 73 A.D.2d 790, 423 N.Y.S.2d 707).

The fact that the crimes for which defendant was on trial and the crimes charged in the pending indictment were similar will not foreclose the cross-examination if it appears that the evidence is otherwise admissible (People v. Anderson, 75 A.D.2d 988, 429 N.Y.S.2d 117). The crimes charged in the pending indictment, robbery and larceny, are crimes of individual dishonesty and untrustworthiness, that are relevant to defendant's veracity as a witness (People v. Sandoval, supra, 34 N.Y.2d p. 378, 357 N.Y.S.2d 849, 314 N.E.2d 413). Accordingly, we find no clear abuse of discretion with respect to the court's Sandoval ruling as would require reversal (People v. Mackey, 49 N.Y.2d 274, 281-282, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Shields, 46 N.Y.2d 764, 765, 413 N.Y.S.2d 649, 386 N.E.2d 257).

During the trial, a police officer testified, without objection, that the victim and another eyewitness had identified the defendant as the perpetrator of the robbery within a half hour after the robbery took place. When the prosecutor made reference to the police officer's testimony in this respect during the course of his summation, defense counsel objected and moved for a mistrial, claiming that such testimony constituted impermissible "bolstering" under the rule of People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841. The trial court denied...