(dissenting). I dissent and would vote to affirm the defendant’s conviction of assault in the first degree (Penal Law § 120.10 [1]).
My analysis of the record leads me to conclude that overwhelming evidence supports the jury verdict. In my opinion, the majority understates the weight of this evidence, which indicates that the defendant, without dispute, shot the victim, a 67-year-old man, twice, wounding him seriously. As the Court of Appeals unanimously stated in People v Cohen (223 NY 406, 423): “Better than a court which reviews but the printed record are they [the jury] fitted to pass upon the guilt or innocence of the accused.”
I disagree with the majority that defendant was prejudiced by the prosecutor’s cross-examination of him, about an uncharged homicide.
The majority concede, as they must, considering the weight of legal authority, that a defendant may be cross-examined concerning any immoral, vicious, or criminal act, which has a bearing on his credibility. Of course, the questions that are asked must be asked in good faith (People v Alamo, 23 NY2d 630; People v Schwartzman, 24 NY2d 241, cert denied 396 US 846). The extent to which a defendant may be cross-examined about his prior bad acts rest within the sound discretion of the trial court (People v Rahman, 46 NY2d 882, 883). In the instant case, the defense trial counsel’s objection to the prosecutor’s cross-examination, was based solely on the prosecutor’s good faith, and the defense counsel did not ask the trial court to balance the probative value against possible prejudice. In response to the defense request, the trial court held a side bar conference, to determine the good faith of the prosecutor’s questions.
*473A unanimous Court of Appeals stated in People v Sorge (301 NY 198, 202): “although there may be room for a difference of opinion as to the scope and extent of cross-examination, the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of ‘plain abuse and injustice’ (La Beau v. People, supra, 34 N.Y. 223, 230), from substituting its judgment for his and from making the difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.”
Further, the Court of Appeals in People v Alamo (supra, at p 633) stated: “The rule that evolves from the cases is that questions such as these * * * to the defendant * * * as a witness are not error if the prosecutor asked them in good faith, that is to say, if he had some reasonable basis for believing the truth of things he was asking about.”
Measured by this caveat, it is my belief, after examining this portion of the record, that the prosecutor showed the trial court a good-faith basis for the examination, such as that the defendant’s fingerprints had been discovered on a beer bottle in the decedent’s apartment and that the defendant had been considered a suspect in the homicide.
Even though the majority spend much of their opinion in speculation about the possible prejudice of the instant cross-examination, the defendant’s experienced trial counsel never raised the issue of the allegedly prejudicial impact of the questions being asked by the prosecutor. Thus, the trial court was never alerted to an issue about the possible prejudice of these questions, which the defendant now raises for the first time on appeal, without having preserved them for review (People v Medina, 53 NY2d 951; CPL 470.05 [2]). Significantly, the majority do not claim that the defendant was denied the effective assistance of counsel at trial, and, on appeal before us, defense appellate counsel does not claim that defendant was denied the effective assistance of counsel.
In my view, there is no justification, upon this record, for this court to use its interest of justice powers to review an issue about prejudice that was never properly preserved for review.
Legal authority fully supports the trial court’s decision to permit the prosecutor to continue questioning the defendant about this homicide, which occurred approximately six months before the instant crime. Both of these crimes involved acts of calculated violence, which indicated the defendant’s willingness to place his self-interest ahead of the interests of society (People v Duffy, 36 NY2d 258; People v Zada, 82 AD2d 926).
*474It should not be overlooked that the experienced Trial Justice gave a very careful charge, which met the standards of justice and fairness and that charge was not objected to by defense trial counsel. The majority position about the question of prejudice is supported, in my opinion, by nothing more than sheer speculation.
Concededly, the prosecutor did not mention to the trial court and defense counsel prior to trial, that he intended to cross-examine defendant about the uncharged homicide. The majority makes so much of this omission in their opinion, that they, in substance, raise that omission to the level of reversible error, even though the majority offer no legal authority that supports their contention that such omission is error. I am unaware of any appellate court in this State that has previously reversed a case based upon a fact pattern similar to the one herein.
In addition, the majority, in several pages of their opinion appears to be laying down the kind of cross-examination of a defendant, that they believe the People should conduct. I fail to see the relevance of such instruction in this case. The prosecutor, in the subject matter, obediently followed the directions of the trial court. “[A] negative response by a defendant [does not] preclude further inquiry by the prosecutor in a legitimate effort to cause the defendant to change his testimony. Otherwise a ‘witness would have it within his power to render futile most cross-examination.’ (People v. Sorge, supra, p. 201.)” (People v Schwartzman, supra, at p 244.)
In conclusion, based upon my analysis this defendant received a fair trial and no reversible error was committed.
Asch and Kassal, JJ., concur with Sandler, J. P.; Fein, J., concurs in a separate opinion; Ross, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on September 8, 1982, reversed, on the law, and the case is remanded for a new trial.