People v. Morgan
| Decision Date | 04 March 1991 |
| Citation | 567 N.Y.S.2d 166,171 A.D.2d 698 |
| Parties | The PEOPLE, etc., Respondent, v. Darvis MORGAN, a/k/a Darius Morgan, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Diane Pazar, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Sherry B. Bokser, of counsel, Jonathan Fink, on the brief), for respondent.
Before KOOPER, J.P., and LAWRENCE, HARWOOD and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bianchi, J.), rendered September 7, 1988, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contentions, he was not denied a fair trial by the court's revised Sandoval ruling after he had opened the door to further cross-examination with evidence of several of his past convictions. At the beginning of the trial, pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, the court ruled that the prosecutor would be permitted to cross-examine the defendant, should he testify, regarding only one of his numerous prior convictions, to wit, a robbery conviction in 1975. The court warned the defense counsel, however, not to do anything to suggest that this was the defendant's only conviction as this would open the door to further inquiry into his other convictions. Despite this explicit warning, the defense counsel elicited from the defendant testimony which indeed suggested that that robbery conviction was the defendant's only prior conviction, and that that robbery was committed when the 33-year-old defendant was but 19 years old (see, People v. Leroy Woods, 165 A.D.2d 798, 564 N.Y.S.2d 281). This testimony was misleading, as the jury could have incorrectly inferred therefrom that the defendant had committed but one aberrational criminal act during his lifetime. Having thus opened the door through this misleading testimony, the prosecutor was appropriately permitted to inquire regarding other past convictions to the extent that they were probative of the defendant's credibility (see, People v. Garcia, 160 A.D.2d 258, 553 N.Y.S.2d 367).
Even after the door was opened, the court still exercised its discretion to minimize the prejudice to the defendant. Of the defendant's numerous past convictions, the prosecutor was permitted to inquire into only five before he was cut off by the court. Thus, the defendant was not questioned about an excessive and unduly prejudicial number of past convictions (compare, People v. Bowles, 132 A.D.2d 465, 517 N.Y.S.2d 155; see, People v. Canty, 60 N.Y.2d 830, 469 N.Y.S.2d 693, 457 N.E.2d 800; People v. Branch, 155 A.D.2d 475, 547 N.Y.S.2d 137; People v. Torres, 110 A.D.2d 794, 487 N.Y.S.2d 859). Moreover, three of the past convictions were for...
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