People v. Bennette

Thompson, J.,

dissents and votes to affirm the judgment, with the following memorandum: Two principles about cross-examining a defendant as to prior convictions remain clear from the leading decisions of People v Sandoval (34 NY2d 371) and People v Duffy (36 NY2d 258) and their progeny. The first principle is that the trial court must balance the probative value of the evidence concerning the prior convictions with the probability of unfair prejudice. The second principle is that the decision is left to the sound discretion of the Trial Judge. In the instant case, the prior conviction is one which involved violence and a clear disregard of society’s interest. It is also a crime which involved a risk of unfair prejudice because of the defendant’s choice of the victim of his prior crime. However, “The particular limitations of proof must always depend on the individual facts and circumstances of each case. Such determination will best be made by the trial court” (People v Sandoval, supra, p 375). I am reluctant to disturb that discretion which was exercised to strike the balance “between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility *** and *** the risk of unfair prejudice” (People v Sandoval, supra, p 375). “The extent to which disparaging questions, not relevant to the issues, but bearing on the credibility of a witness, may be *860put upon cross-examination is discretionary with the trial court and its rulings are not subject to review, unless it clearly appears that the discretion has been abused” (People v Duffy, supra, pp 262, 263). I conclude that the trial court did not abuse its discretion in permitting cross-examination about a “specific criminal, vicious or immoral act.” Therefore, I would affirm.