People v. Perez

Kupferman, J. P., and Asch, J., dissent in a memorandum by Kupferman, J. P., as follows:

I would affirm. The store owner saw the person who shot him in the face. I As Samuel Johnson said, “When a man knows he is to be hanged * * * it concentrates his mind wonderfully.” I would think the same could be said for being shot in the face. The differences in the testimony of the two victim witnesses were insignificant. The theatre manager testified that the defendant and his wife frequented the theatre, but he had no knowledge of whether they saw this specific show. The defense being alibi, the testimony of the wife that she and the defendant were at the movies covered the point. While harmless error “does not involve speculation as to whether a defendant would have testified if the legal error had not occurred” (People v Williams, 56 NY2d 236, 240), the point to be made on alibi was made. H The only real issue on this appeal is whether the Sandoval ruling was erroneous in proposing to allow the facts of three separate gunpoint store robberies in which this defendant was involved to be used. This rests in the sound discretion of the Trial Judge. H The court gave serious attention to the question of what could be used on cross-examination. As our court has previously stated, “At the *799outset 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.” (People v Rahman, 62 AD2d 968, affd 46 NY2d 882.)