People v. Palmeri

• Decision Date: 21 November 1968
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Ernest P. PALMERI, Thomas J. Palermo and Milagros J. Berrios, Defendants.
• Court: New York County Court

Page 128

295 N.Y.S.2d 128

58 Misc.2d 288

The PEOPLE of the State of New York, Plaintiff, v. Ernest P. PALMERI, Thomas J. Palermo and Milagros J.

Berrios, Defendants.

Oneida County Court.

Nov. 21, 1968.

Arthur A. Darrigrand, Dist. Atty., for the People; Richard D. Enders, Utica, of counsel.

Louis T. Brindisi, Utica, for defendant, Thomas J. Palermo.

JOHN J. WALSH, Judge.

This motion by the defendant Palermo to enjoin the District Attorney from cross-examining him as to his prior criminal record if defendant testifies in his own behalf on the pending trial is a novel one.

The general rule in this state is that a defendant who takes the witness stand and testifies in his own behalf in a criminal trial, waives the privilege against self-incrimination and may be interrogated, like any ordinary witness, with regard to prior convictions or any criminal act affecting his credibility as a witness, the manner and extent thereof being largely within the discretion of the Trial Judge. People v. Sorge, 301 N.Y. 198, 201--202, 93 N.E.2d 637, 639--640.

The defendant argues that fundamental fairness and due process require a re-examination of the New York rule in the light of recent developments in the application of constitutional rights to state procedure. He contends that he is faced with the dilemma of testifying in his own behalf and being prejudiced by the evidence of his prior convictions or of remaining silent and being prejudiced by his silence. See 'Impeachment of the Defendant-Witness by Prior Convictions', Saint Louis University Law Journal, Winter 1967 pp. 277--286.

The defendant relies upon Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 and Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, certiorari denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287. Both of these cases establish the principle that the trial court may use his own discretion whether to allow or exclude such evidence of prior convictions, and that only when presented with a showing that this discretion has been abused will an appellate court reverse the lower court's decision.

Accordingly, the defendant's motion at this time is premature and will be denied.

It is interesting to note that outside the District of Columbia, the Luck principle has received little attention. It was recently rejected by the Supreme Court of New Jersey. The New Jersey Court in State v. Hawthorne, 49 N.J. 130, 228 A.2d 682 (1967) concluded that a statute nearly identical to the provision involved in Luck left no room at all for the operation of judicial discretion.

In People v. Kelly, Cal.App., 68 Calif.Rptr. 337, the California Court of Appeals held that California Evidence Code, Section 788 was not affected by the Luck doctrine. That section read:

'For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony * * *.'

See 'Impeaching the Accused By His Prior Crimes--a New Approach to an Old Problem' Hastings Law Journal March 1968, pp. 919--931. See 'Criminal Procedure--Judicial Discretion and Admissibility of Defendant's Past Convictions to Impeach his Testimony' Catholic University Law Review Spring 1968 pp. 344--348.

Section 2444 of the Penal Law as it existed prior to September 1st, 1967 read as...