People v. Rahman
| Decision Date | 27 April 1978 |
| Citation | 62 A.D.2d 968,404 N.Y.S.2d 110 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ali RAHMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
D. H. Steiner, for respondent.
A. R. Mass, New York City, for defendant-appellant.
Before MURPHY, P. J., and LUPIANO, SILVERMAN, FEIN and SULLIVAN, JJ.
Judgment, Supreme Court, New York County, rendered July 14, 1976, convicting defendant, after a jury trial, of sale of a controlled substance in the third degree, affirmed.
Defendant was indicted for two counts each of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree. At trial his defense was based on an alibi that he was visiting a friend and his aunt (both of whom testified) on the days the sales took place, and there was an intimation that the seller was not defendant, but a look-alike named Gary Brown. Defendant was acquitted of the February 20, 1975 buy, but convicted of selling heroin on March 5, 1975.
Prior to trial, defendant moved to preclude the People from using three prior convictions (all drug related) to impeach him during cross-examination, if he chose to testify. The basis of defendant's objection as urged at this Sandoval hearing was that allowing defendant to be so cross-examined where the present charges are also drug related would be highly prejudicial to defendant. The court ruled that the prosecutor could question defendant about two convictions, one in 1969 and one in 1971 for possession of dangerous drugs, but prohibited questioning concerning a 1970 conviction for attempted possession of dangerous drugs. The dissent views this ruling as error. We disagree.
It is acknowledged that "in the prosecution of drug charges, interrogation as to prior narcotic convictions . . . may present a special risk of impermissible prejudice . . .." (People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 856, 314 N.E.2d 413, 418 (1974)). However, the key is to "determine whether and to what extent the particular defendant has met his burden, and it is his, of demonstrating that the prejudicial effect of the admission of evidence thereof for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion." (People v. Sandoval, supra, at p. 378, 357 N.Y.S.2d at p. 856, 314 N.E.2d at p. 418).
At the outset it is observed that the fact that a defendant may specialize in one type of illegal activity, for example, drugs, does not ipso facto shield such defendant from having prior convictions used to impeach his credibility. To hold otherwise defies common sense and, in effect, serves to make the criminal specialist a member of a chosen class, free from the burden of having his credibility impeached for prior convictions relating to his specialized field of endeavor a result not envisioned under Sandoval.
There is no basis for concluding on this record that defendant was the only available source of testimony in support of his defense. Indeed, defendant's decision not to testify did not affect the validity of the fact-finding process. Defendant's alibi defense was conveyed to the jury respecting the March 5, 1975 heroin sale through two alibi witnesses. Further, defendant's strained appellate argument that his testimony would be crucial to the development of a misidentification defense, i. e., the real culprit was a look-alike named Brown, a long time acquaintance of defendant who sometimes stayed in defendant's apartment, is without merit. It is alleged that because of defendant's failure to testify, the pictures of Brown were kept from the jurors who were thereby deprived of crucial evidence of misidentification. Defendant, however, was not the only person who could have laid a foundation for the introduction of the photographs. Robin Taylor, the "official" tenant of the apartment in which the first sale occurred, was apparently available to testify, but defendant chose not to call her.
Respecting an alibi witness produced by defendant, his aunt, the prosecution was permitted to ask her on cross-examination whether her husband had been the subject of a criminal investigation. The purpose of such question was to show her hostility toward the prosecution because of her husband's recent trouble with the authorities. In a pretrial interview the aunt allegedly had remarked respecting her husband's murder conviction that the District Attorney, the United States Attorney, the FBI and the police were all conspiring against her. In announcing his intention to probe this bias in colloquy at the Bench between defense counsel, the trial judge and the prosecutor, the latter obtained a ruling that a question as to the conviction of the witness' husband would be prejudicial, whereas merely inquiring if he had ever been the subject of a criminal investigation might properly expose the witness' belief about a conspiracy of the authorities against her, thereby revealing a bias against the prosecutors of her nephew. Impeachment is permissible to probe prior declarations tending to show bias or hostility against the other party, here, the People (Schultz v. Third Avenue Railroad Co., 89 N.Y. 242; Richardson on Evidence (10th ed) § 503).
The following testimony relevant on the issue of bias occurred:
"Q. Now, Mrs. Johnson, was your husband ever the subject of a criminal investigation?
A. Yes, he was.
Q. Mrs. Johnson, did you tell Mr. Sigfried that you thought the Police Department, the District Attorney's Office, and Judges had conspired against you and your husband?
A. Not in those words as you had indicated, no, sir. I spoke with him, not actually to him. I was speaking to you. And I was speaking as far as justice was concerned.
Q. But you recall making what did you say?
A. I came downtown to try to help you, what I told you on the telephone. I was coming down. I had information to help you, to help the case.
Q. Mrs. Johnson, excuse me. What did you say? Did you make that remark?
A. I said I was coming to help the case because I want to see justice done."
Thus, read in context the one question and answer on the subject of a criminal investigation of this witness' husband is innocuous and, at most, harmless error. The witness resisted any attempt to draw a link between her credibility and the criminal investigation of her husband.
Defendant's remaining contentions have been examined and are found to be without merit.
All concur except MURPHY, P. J., who dissents...
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