In this case the People chose to charge appellant Conlon with a violation of section 1826 of the former Penal Law, which is a vague, general “ shotgun ” statute. A conviction of “aiding and abetting” under such a statute must be closely scrutinized.
In addition to the facts noted in the majority opinion, it should be pointed out that, according to the Rosemans, the People’s own witnesses, Conlon’s understanding at the very outset, as communicated to these witnesses by Conlon, was that the payment to Kuss was a fee for bringing the deal and that at no time was there any discussion between Conlon and these witnesses that it was for Kuss’ services with respect to the covenants and restrictions. It is claimed by Conlon, and I agree, that at no time was it directly elicited from the testimony of these witnesses that he was aware of the covenants and restrictions before Howard Roseman went to sign the contract with the Zavatt group. Nor was anything elicited from these witnesses which would directly discredit Conlon’s claim that he became aware of the covenants and restrictions at about the same time as the Rosemans after they had jointly decided to go ahead with the transaction. Accordingly, it is my view that any conclusion to the contrary, implicit in the majority’s opinion, is predicated on inferences from the surrounding circumstances adduced and not from any evidence directly probative thereof. I also note that Conlon and his business associates, the Rose-mans, on whose testimony the People primarily rely, were joint investors who acquired the property with their own funds. *312They also initially intended to develop the property themselves and abandoned the project because they lacked the funds to finance it.
Predicated on the foregoing, on the facts stated by the majority, and on my own review of the record, I am of the opinion that the proof, in essence and realistically viewed, demonstrates that the People failed to establish beyond a reasonable doubt that Conlon in any real sense acted as agent or intermediary for Kuss. The proof shows that Kuss brought a real estate deal to Conlon for a fee and Kuss insured his own interest by effecting the passage of the necessary resolutions by the Town Board. Accordingly, it is my view that Conlon was an investor-principal acting in his own pecuniary interest and I do not consider him to have been an aider and abettor of Kuss in ‘ ‘ taking unlawful fees ” (statute heading of section 1826) so as to bring him within the purview of the particular statute involved herein (see People v. Brody, 298 N. Y. 352).
Assuming, arguendo, that Conlon’s guilt as an aider and abettor be considered to have been established, the judgment against him should in any event be reversed and a new trial ordered as to him. In my opinion, substantial prejudice was engendered by the prosecutor’s cross-examination of Conlon’s character witnesses. This, together with the prosecutor’s inflammatory summation, justifies conclusions that Conlon was not afforded the benefit of a completely impartial and objective evaluation by the jury of his guilt or innocence and that he was thereby deprived of his right to a fair trial.
Surrounding this case was an emotionally charged atmosphere of public criticism precipitated by newspaper publicity which resulted in a change of venue from Suffolk County to Westchester County. In an excess of zeal, the prosecutor brought this atmosphere into the trial in his summation. While this bordered on prejudicial error, I would be inclined to treat it as not substantial enough to warrant a new trial were it not for the additional factor of the prosecutor’s prejudicial cross-examination of Conlon’s character witnesses, which, in my opinion, tips the scales in favor of a reversal and a new trial insofar as Conlon is concerned.
The nature of this case was such that Conlon’s reputation for honesty and integrity was a significant factor which could have affected the jury’s evaluation of his version of the transaction involved. He chose to place his reputation in issue. In doing so he presented 12 character witnesses, among whom *313were Supreme Court Justices, Town Councilmen and others engaged in public service in Suffolk County, each of whom primarily attested to his reputation for honesty and integrity. In his cross-examination, the prosecutor repeatedly asked questions of the character witnesses with respect to improper collateral transactions in which Conlon was reputedly involved. The following questions asked of one character witness were substantially similar to, if not identical with, those asked of most of the others and are set forth verbatiffi to demonstrate the thrust of my dissent:
“ Q. * * * did you ever hear that the defendant Conlon, while he was town attorney, was associated with a corporation by the name of WAW Corporation; and further that this corporation had purchased certain property And that they applied for a change of zone on this parcel of property.
“ Q. (cont’g) * * * and had you heard that this organization, WAW, of which the defendant Walter Conlon was a partner and an owner, had purchased a piece of property in the Township of Islip; and further that this company and Walter Conlon had applied for permission from the town board to construct an outdoor movie on that parcel of property; and that this was done while Walter Conlon was town attorney; and further, that Walter Conlon had failed to disclose his interest in this parcel of property to the town board when it voted upon this change of zone; and further had you heard that on the same day that the defendant Conlon and his corporation WAW, had applied for a change of zone to allow a construction of an outdoor movie, another corporation by the name of Grace Operating Inc., an organization by the name of Grace Operating Inc., came into that town board on the same day that Conlon asked for his change of zone, and Grace said, ‘ I want an outdoor movie house on my parcel of property in Islip ’; and had you heard that Grace had been turned down on its application.
“ Q. (cont’g) * * * and had you heard that Grace was turned down for a zoning change for an outdoor theater on the very same day that Walter Conlon was granted permission to place an outdoor theater on this property of WAW, failing to have disclosed this interest to the town board? Have you ever heard that? ”
Following an objection by counsel that the prosecutor was getting into a delicate area which could lead to a mistrial, which objection was overruled, the prosecutor continued:
' ‘ Q. Had you heard that he was a member of a corporation in the year 1964, while he was town attorney, known as IXB *314Corporation; and further that the IXB Corporation purchased a parcel of property next to Town Hall in Islip at the very same time that the Town of Islip itself was attempting to negotiate terms for the purchase of this property; and further have you heard that the defendant Conlon was directed by the town board—when the town board was unable to acquire the property, was directed by the town board, since he was the town attorney, to negotiate terms of purchase with this corporation known as IXB, since the town wanted to purchase the property in question. ’ ’
When counsel objected and' the trial court stated to the prosecutor that it presumes he is asking whether the witness had heard any rumor along this line, the prosecutor responded: ‘ ‘ More than rumor, even, Your Honor ’ He thereupon continued:
‘ ‘ Q. (cont’d) And have you heard that the town board directed Walter Conlon, the town attorney, to negotiate terms of purchase for this parcel of property next to the Town Hall; and that Walter Conlon returned to the town board and said, ‘ IXB won’t sell ’; and have you heard that as a matter of fact, what he was telling the town board was that he was negotiating with himself with one hat acting as town attorney, and with another hat acting as the owner of a property that the town wished to buy—the property that the town wanted to buy; and have you heard that after he told the town board that IXB would not sell the property, that he spoke to the then town supervisor, Mr. Harwood, who testified in this court, and Mr. Harwood said to the town attorney Conlon, the defendant in this case; ‘ Mr. Conlon, I have heard rumors that you are interested in this property and that you own it; is there any truth in it? ’ And that the defendant Conlon * * * [thereupon] said, ‘ I have nothing to do with the ownership of this property. ’ And further, have you heard that the town board authorized the town attorney Conlon to condemn the property in question because they wished to use it for town purposes; they authorized him to condemn it, and for the town, he Conlon, condemned it, and in that fashion acquired a tax benefit whereby the profit on the property was taxed only to the 25 percentile; and further, have you heard that after it was disclosed to the town board that the defendant Conlon was interested in this property he asked the town board then to remove him from these negotiations ’ ’ (emphasis supplied).
All but one of the character witnesses denied hearing about these incidents and one witness stated that the newspapers *315were full of reports in 1967 but not in 1964 when the incidents allegedly occurred.
In my opinion, the effect of the lengthy detailed recitals of factual background contained in these questions was to convey to the jury the impression that the misdeeds referred to had been well documented, investigated and authenticated and were truth and fact. That the prosecutor vouchsafed their truth was reflected in his reaction to the court’s attempt to keep the cross-examination on a rumor level by stating, as above noted, that more than rumor was involved. At another point he responded to an objection by offering, in the jury’s presence, to show his good faith in propounding these questions. At still another point, and again in the jury’s presence, he stated, “I am not referring to these incidents as rumors. 1 would he in had faith if I used a rumor” (emphasis supplied). This implantation of the impression of truth and fact was accentuated when the prosecutor repeatedly posed the same question to most of the other witnesses in substantially the same form and length as those above. In my opinion, the prejudicial impact on the jury of these repeated factual recitations, vouched for by the prosecutor, could not be erased by the prosecutor characterizing them as rumors or reports, or by the court admonishing the jury to so consider them.
Since the appraisals of Conlon’s reputation by the character witnesses are from their very nature predicated on hearsay, I consider the prosecutor’s attempt to test or discredit the accuracy of these appraisals, by referring to other collateral acts in such manner as to attribute to them the stature of truth and fact, an infringement upon Conlon’s right to due process and to a fair trial limited to the crime with which he was charged. In arriving at this conclusion I am mindful of the latitude permitted in cross-examining a character witness on the theory that the defendant in using such witness throws open the entire subject of his good name (People v. Alamo, 23 N Y 2d 630; Michelson v. United States, 335 U. S. 469). However, I do not find in either of these two decisions a justifiable basis for departure from the established principles (1) that the purpose of the cross-examination of a defendant’s character witnesses with reference to particular acts of the defendant is not to establish such acts as facts or to prove the truth of the rumors or charges inquired about, but merely to show the circulation of rumors of such acts and to test the credibility of the character witness by ascertaining his good *316faith, information and accuracy (47 ALR 2d 1274), and (2) that the cross-examination as to specific instances of misconduct on the part of the defendant should not be extended to the details or particulars of such acts (47 ALR 2d 1282). Nor do I equate the cross-examination at bar with those embodying the limited specifics in Alamo or Michels'on (cited by the court in Alamo as the leading modern case on the subject). I do not consider the cross-examination and the prosecutor’s claims of good faith in the presence of the jury in keeping with the rationale of the foregoing principles or of the foregoing cases.
This rather difficult area of offering and testing character testimony has been the target of serious and responsible criticism (Michelson v. United States, supra, p. 473) and has been said to be “ full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other” (Michelson v. United States, supra, p. 486). It has also been stated to call for moderation by “ discretionary controls in the hands of a wise and strong trial court” (ibid., p. 486). Here, the Trial Judge properly attempted to exercise these discretionary controls but, nevertheless, I believe the cross-examination exceeded the bounds of fairness and propriety.
I do not agree that the relevant proof with respect to Conlon’s guilt of aiding and abetting was. so strong as to warrant concluding that even if the cross-examination be deemed prejudicial error it is not sufficient to warrant reversal. Nor can I justify any such conclusion because of the length and complicated nature of the trial. In my opinion to permit this cross-examination, coupled with the summation as noted, to remain unchallenged as reversible error is to open the door to a gradual deterioration of the concept of fairness which our judicial system is designed to preserve.
Accordingly, I conclude that the judgment against Conlon should be reversed and the indictment as against him dismissed, or, in any event, that a new trial be ordered with respect to him.
Shapiro, Brennan and Benjamin, JJ., concur in Per Curiam opinion. Latham, Acting P. J., concurs in affirmance of the judgment against defendant Kuss, but otherwise dissents and votes to reverse the judgment against defendant Conlon and to dismiss the indictment as against him or, in any event, to order a new trial with respect to him.
Judgments affirmed.