People v. Syposs

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CALLAHAN; All concur, except DOERR and DENMAN, JJ., who dissent and vote to affirm, in the following MEMORANDUM by DENMAN, J., in which DOERR
• Citation: People v. Syposs, 505 N.Y.S.2d 356, 122 A.D.2d 600 (N.Y. App. Div. 1986)
• Decision Date: 11 July 1986
• Parties: PEOPLE of the State of New York, Respondent, v. John SYPOSS, Appellant.

Page 356

505 N.Y.S.2d 356

122 A.D.2d 600

PEOPLE of the State of New York, Respondent, v. John SYPOSS, Appellant.

Supreme Court Appellate Division Fourth Department.

July 11, 1986.

Rose H. Sconiers, by Linda Reynolds, Buffalo, for appellant.

Richard J. Arcara, by Rosemarie Wyman, Buffalo, for respondent.

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

MEMORANDUM:

Defendant appeals his conviction of sodomy in the first degree and sexual abuse in the first degree upon a jury verdict based on two alleged incidents of sexual activity with his 14-year-old daughter.

We conclude that the court abused its discretion and denied defendant a fair trial by permitting cross-examination of defendant regarding prior immoral acts with the complainant's older sister (People v. Brown, 70 A.D.2d 1043, 417 N.Y.S.2d 560). While a defendant may be cross-examined concerning immoral, criminal or vicious acts which have a bearing on his credibility as a witness, provided the cross-examiner questions in good faith and upon a reasonable basis in fact (People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804, mot. to amend remittitur granted 36 N.Y.2d 857, 370 N.Y.S.2d 919, 331 N.E.2d 695, cert. denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88; People v. Kass, 25 N.Y.2d 123, 125-126, 302 N.Y.S.2d 807, 250 N.E.2d 219; J. Prince Richardson on Evidence § 498 [10th ed 1973] ), "the law is inflexibly set against questioning as to such acts when the obvious intent is to show from character or experience a propensity to commit the crime for which defendant is on trial" (People v. Duffy, supra, 36 N.Y.2d p. 262, 367 N.Y.S.2d 236, 326 N.E.2d 804; see, People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 247 N.E.2d 642, mot. to amend remittitur granted 24 N.Y.2d 914, 301 N.Y.S.2d 644, 249 N.E.2d 483, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). The preferred procedure in such cases is for the defendant to request an advance ruling limiting the scope of cross-examination (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413). However, Sandoval "merely established procedural guidelines and identified relevant criteria for the issuance of a ruling in advance" and "neither enlarged nor diminished the court's inherent and pre-existing power to exercise general control over the range of cross-examination"; consequently, a defendant retains the right "to object at trial to prejudicial cross-examination, and when his objection challenges inquiry into his prior misconduct, he is entitled to a ruling based upon the same criteria as would have been applied had the issue been raised before trial" (People v. Ortero, 75 A.D.2d 168, 174-175, 428 N.Y.S.2d 965; see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v. Innis, 98 A.D.2d 808, 470 N.Y.S.2d 26).

Defendant did not directly object to cross-examination into his alleged prior misconduct; rather, he objected to the admissibility and use of the document upon which the cross-examination was based. Thus, while defendant properly sought to invoke the general rule that "a cross-examiner cannot contradict a witness' answers concerning collateral matters by producing extrinsic evidence for the sole purpose of impeaching credibility" (People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, supra; see, People v. Molineux, 168 N.Y. 264, 61 N.E 286), he did not technically preserve an objection to the cross-examination as a matter of law (CPL 470.05[2] ). However, although defendant failed to articulate a proper objection, the trial judge was aware that the prosecutor was venturing into a highly prejudicial area (see, People v. Ventimiglia, supra ). Moreover, the evidence of defendant's guilt was far from overwhelming and we exercise our discretion to reverse the conviction in the interest of justice.

We have considered the remaining other issues raised by defendant and find them to be without merit.

Judgment reversed as a matter of discretion in the interest of justice and new trial granted.

All concur, except DOERR and DENMAN, JJ., who dissent and vote to affirm, in the following MEMORANDUM by DENMAN, J., in which DOERR, J. concurs:

We find the cross-examination of defendant to have been proper in all respects and therefore dissent and vote to affirm. It is well established, as the majority states, that a defendant may be cross-examined concerning prior criminal, vicious or immoral acts bearing on his credibility provided that the questions are asked in good faith and have a reasonable basis in fact (People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804, mot to amend remittitur granted 36 N.Y.2d 857, 370 N.Y.S.2d 919, 331 N.E.2d 695, cert. denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88; People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637). While such questioning is improper where it "has no purpose other than to show that a defendant is of a criminal bent or character and thus likely to have committed the crime charged" (People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413, quoting People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 247 N.E.2d 642), cross-examination concerning prior crimes or bad acts is not precluded merely because the acts inquired about are similar to the crime for which the defendant is on trial (People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Sorge, supra ). Where its probative worth on the issue of defendant's credibility outweighs its potential for prejudice, such cross-examinati is entirely proper (People v. Sandoval, supra ) and that determination is entrusted to the sound discretion of ...