People v. Hunter

• Decision Date: 09 August 1982
• Citation: 453 N.Y.S.2d 212,88 A.D.2d 321
• Parties: The PEOPLE, etc., Respondent, v. Kevin B. HUNTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 212

453 N.Y.S.2d 212

88 A.D.2d 321

The PEOPLE, etc., Respondent, v. Kevin B. HUNTER, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 9, 1982.

Murray Bogatin, New York City, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Nicholas E. Tishler, Hauppauge, of counsel), for respondent.

Before DAMIANI, J. P., and LAZER, MANGANO and BROWN, JJ.

DAMIANI, Justice Presiding.

Defendant was indicted for criminal sale of a controlled substance in the sixth degree. At his trial the People called three witnesses, the undercover officer who bought the drugs, his partner who observed the sale, and an officer who testified as to the chain of custody of the drugs between the time they were purchased and the time they were admitted into evidence at the trial. The undercover officer and his partner identified defendant as the man who had sold the drugs. The defendant called one Kathleen G. who testified, in substance, that a girl named Barbara, and not the defendant, had sold the drugs to the undercover officer.

The principal claim of error on this appeal concerns the cross-examination of Kathleen G. It is well established that a witness in a civil or criminal case, including the accused in a criminal prosecution, may be impeached by inquiry into prior acts of misconduct which tend to discredit the witness' character and show him or her to be unworthy of belief. Generally, a witness may be interrogated as to any immoral, vicious, criminal or wrongful act involving moral turpitude (see People v. Webster, 139 N.Y. 73, 84, 34 N.E. 730; People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637; People v. Alamo, 23 N.Y.2d 630, 298 N.Y.S.2d 681, 246 N.E.2d 496, cert. den. 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137; People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; Richardson, Evidence § 498; Fisch, New York Evidence § 455; but see Proposed Code of Evidence for State of New York, § 608, subd. in which a drastic limitation on this rule is proposed). Where the witness is the defendant himself, he may obtain an advance ruling prohibiting or limiting such questioning if the probative value of inquiry into specific prior acts of misconduct would be outweighed by its prejudicial effect upon the jury (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413; Fisch, New York Evidence § 457). With respect to any witness the extent to which he or she may be questioned concerning prior acts of misconduct is discretionary with the trial court but such questions must be asked in good faith and have a reasonable basis in fact (People v. Alamo, supra; People v. Kass, 25 N.Y.2d 123, 302 N.Y.S.2d 807, 250 N.E.2d 219).

In this case, when the prosecutor cross-examined Kathleen G. concerning prior specific acts of misconduct, the defendant's counsel sought to ascertain the basis of the prosecutor's questions. It was then revealed that the prosecutor's knowledge of the acts of misconduct in question was gleaned from an examination of police records of arrests of the witness when she was a juvenile and which had led to juvenile delinquency proceedings against her in the Family Court.

Section 166 of the Family Court Act makes Family Court records private by prohibiting indiscriminate public inspection thereof and requiring one who wishes to inspect specific papers or records on file in that court to obtain permission to do so from a Judge of the court. The purpose of that provision is to prevent public dissemination of information relating to legal disputes involving family problems (Matter of J. Children, 101 Misc.2d 479, 480, 421 N.Y.S.2d 308), and, in juvenile delinquency cases, to avoid the social stigma which might attach to a person if the facts of his juvenile misconduct were revealed (Matter of Smith, 63 Misc.2d 198, 203, 310 N.Y.S.2d 617).

Section 783 of the Family Court Act sets forth a rule of evidence to the effect that neither the fact that a person was before the Family Court in juvenile delinquency or "PINS" proceedings nor any confession, admission or statement made by him to the court or any of its officers shall be admissible as evidence against him or his interest in any other court. It has been held that by reason of the similarly worded predecessor of that section (former Children's Court Act, § 45), the fact that a witness was previously adjudicated a juvenile delinquent is inadmissible to impeach his credibility (Murphy v. City of New York, 273 App.Div. 492, 78 N.Y.S.2d 191). However, it is permissible to utilize the facts and circumstances of the events underlying the juvenile delinquency charges to impeach the credibility of the witness (cf. People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 338 N.E.2d 619; 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; People v. Warner, 52 A.D.2d 684, 685, 382 N.Y.S.2d 377).

The question in this case is what should be the rule where inquiry results in the disclosure that the good faith basis for the cross-examiner's questions...