People v. Blakeney

Tom, J.

(dissenting). At trial, undercover New York City Police Officer Jerry Eng testified that as part of a buy and bust operation being conducted on November 4,1992, he approached defendant and a female identified as Shakira Fleming as they stood on 9th Avenue between 37th and 38th Streets in Manhattan. The officer allegedly purchased two vials containing crack cocaine, after which he left the scene and radioed his backup team with a report of the transaction and descriptions of defendant and Fleming. Based upon the information contained in the radio transmission, Officer Patrick Golden drove to the scene of the transaction and arrested defendant and Fleming, after which Officer Eng made drive-by confirmatory identifications.

Defendant testified in his own behalf and acknowledged previous convictions, by plea, to criminal possession of a controlled substance in the fifth degree, attempted robbery in the second degree and petit larceny, as well as a past addiction to crack cocaine. Defendant maintained that on the day of his arrest, he had just seen a movie on 42nd Street and had gone to a deli between 38th and 39th Streets on 9th Avenue when he was approached by Officer Golden and directed to stand facing a wall. Defendant averred that a woman, whom he later learned was Fleming, was placed next to him; that he was alone at the time of his arrest; that he did not know Fleming prior to his arrest; and that he saw Fleming with four males on the corner just before the police brought her to stand next to him.

During cross-examination, defendant reaffirmed that he had never seen, and did not know Fleming prior to the time of his arrest. The prosecutor then moved on to another line of *16questioning, at which juncture the court called a sidebar. Out of the hearing of the jury, the court noted that it was aware defendant had been arrested with Shakira Fleming on another occasion. The prosecutor stated that the arrest the court referred to had occurred 12 days after the arrest for which defendant was then being tried and that it had taken place between 38th and 39th Streets. The court then asked whether the prosecutor intended to inquire about it, to which the prosecutor responded "Not at this time.” The court asked why not, and the prosecutor explained that he was "going to make a motion later on to bring in the witness who was with them at that point.” The court replied "There’s no reason. You have to give him an opportunity to respond to it before you do that. It seems to me you ought to ask him whether he had occasion to see Shakira Fleming again and whether he was arrested twelve days later.” In response to defense counsel’s objection, the court stated "You have an objection. Very good.”

The sidebar discussion thus having been concluded, the prosecutor asked defendant, in open court, not only whether he was again arrested with Fleming on 9th Avenue, near 39th Street on November 16, 1992, but also whether the arrest was for criminal sale of a controlled substance in the third degree, to which the defendant answered "Yes”. The court overruled defense counsel’s subsequent objection to the entire line of questioning, denied defense counsel’s request for a sidebar on the matter, and denied defense counsel’s motion for a mistrial. Thus, contrary to the majority’s position, the issue of the specific crime for which defendant and Fleming were arrested on November 16, 1992 was preserved.

After the cross-examination resumed, the prosecutor asked defendant if the subsequent arrest was at the same location. Defendant answered that it wasn’t and the court intervened and asked "Well, where was it?” Defendant replied it was on the corner of 38th Street and 9th Avenue and the court then asked "How far was it from where you were arrested in this case?” Defendant answered "Across the street about half a block”. The court then inquired "How did it happen you were arrested twelve days later with the same person you were arrested with on November 4th?”

Defendant then embarked upon a lengthy, descriptive response, which the court interrupted by again asking "How did it happen you were on 38th Street and Ninth Avenue twelve days later with Shakira Fleming?” Defendant responded that he met Fleming by chance on the street and that when Flem*17ing asked him for change of a $10 bill, he expressed concern because the last time he was "anywhere near” her, he got arrested. However, defendant claimed that before he could make change, he was arrested again. The court then inquired "With Shakira Fleming” and defendant replied in the affirmative.

While it is clear that defendants who take the stand place their credibility in issue and, thus, may be cross-examined on past criminal acts, cross-examination on a pending criminal charge solely for the purpose of impeaching a defendant’s credibility is impermissible (People v Bennett, 79 NY2d 464, 468; People v Betts, 70 NY2d 289). As the Court of Appeals stated in Betts'. "Allowing a defendant-witness’ credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.” (People v Betts, supra, at 295.)

A review of the record reveals that at the court’s direction, the prosecutor cross-examined defendant regarding a pending unrelated criminal charge involving the sale of drugs for the sole purpose of impeaching defendant’s credibility. Further, and contrary to the People’s argument that defendant "opened the door” to questions regarding his later arrest with Fleming, even if defendant’s presence with Fleming on November 16th was somehow probative of whether he knew her prior to November 4th, defendant’s testimony that he did not know Fleming prior to the November 4th arrest did not open the door to elicitation of the fact that defendant’s November 16th arrest was for a crime identical to the one for which he was presently being tried. This, clearly, was sufficiently prejudicial to deprive defendant of a fair trial as it tended to demonstrate defendant’s propensity to commit the crime with which he was charged (People v Mayrant, 43 NY2d 236, 239; People v Ortiz, 156 AD2d 77, 79, lv denied 76 NY2d 793). It is well settled that "[o]ne may not be convicted of one crime * * * because he committed another” (People v Goldstein, 295 NY 61, 64).

I also find that the Trial Judge impermissibly interjected himself into the case during the cross-examination of defendant and, in the process of doing so, focused on defendant’s credibility and indicated a bias in favor of the prosecution. The court asked defendant, who lived in the Bronx, "Why did you go to 42nd Street to see [a movie] instead of seeing it some place in the Bronx?”, which elicited the response that defen*18dant considered it "simpler” to see the movie in Manhattan rather than go to a Bronx movie theater. The court also asked defendant if he recalled the name of the movie theater, which elicited a negative response, and "How did it happen you were arrested twelve days later with the same person you were arrested with on November 4th?”, which question was repeated after defendant gave a narrative answer. Further, the court asked defendant the final question on cross-examination, whether he had been arrested again with Shakira Fleming, which elicited an affirmative response.

The foregoing cross-examination by the Trial Judge, which included repetitive questioning, rather than being clarifying in nature (see generally, People v Rivera, 201 AD2d 385, lv denied 83 NY2d 914; People v Lewis, 188 AD2d 346) conveyed to the jury the court’s opinion that defendant lacked credibility and was guilty (People v Yut Wai Tom, 53 NY2d 44, 57; People v Rogers, 216 AD2d 591; People v Grant, 185 AD2d 896). I reject the People’s claim that this issue is not preserved for our review as defense counsel specifically, and repeatedly, objected to the line of questioning concerning defendant’s subsequent arrest on November 16th, which objections (and a motion for a mistrial and a request for a sidebar) were all denied. Further, since defense counsel had already been told to sit down and lower his voice, any further objection to the Judge’s questions would have been all the more difficult for fear that it would have antagonized the Trial Judge (People v Yut Wai Tom, supra, at 55). In any event, had it not been preserved, I conclude that the matter should be reviewed in the interest of justice.

Accordingly, I vote to reverse defendant’s judgment of conviction and remand the matter for a new trial.

Kupferman and Williams, JJ., concur with Sullivan, J. P.; Tom, J., dissents in a separate opinion.

Judgment, Supreme Court, New York County, rendered April 6, 1994, affirmed.