This is an appeal from a judgment of the Supreme Court, Bronx County, rendered on April 27, 1973, convicting defendant, after a jury trial, of three counts of criminally selling a dangerous drug in the third degree and, after a guilty plea, of one count of criminally selling a dangerous drug in the third degree and one count of criminal possession of a dangerous drug in the third degree. No issue is raised by defendant relevant to his plea convictions and no showing is made which warrants disturbing same.
The charges which were the subject of the trial relate to three alleged sales of cocaine made by defendant to an undercover police officer who was operating with a backup team. The sales took place on September 8, 11 and 12, 1972, in or near Franz Segal Park in the vicinity of the Bronx County Supreme Court building. According to the undercover officer, defendant sold him cocaine on these dates. Although members of the backup team testified to the surrounding events and placed defendant at the scene of the sales, none was able to state that he actually saw the exchange of money for cocaine. After each purported sale, the undercover officer rendezvoused with the backup team and showed them the substances purchased which field tests disclosed to be cocaine. Defendant, his
On appeal, defendant submits that his conviction after trial is tainted by improper cross-examination of defendant. At the time of trial, the indictments to which defendant subsequently entered his pleas of guilty, were pending. As noted above, these indictments related to alleged sales of narcotics to different police officers on September 13 and 18, 1972, and to defendant’s alleged possession of cocaine and marijuana in his apartment on the day of his arrest, September 22, 1972. In People v Sandoval (34 NY2d 371, 376), it was aptly observed that "in the fact-finding process, the function, in cross-examination, of evidence of a defendant’s prior criminal, vicious or immoral acts (unless such evidence would be independently admissible to prove an element of the crime charged) is solely to impeach his credibility as a witness (People v Webster, 139 NY 73; Richardson, Evidence [10th ed], § 498). From the standpoint of the prosecution, then, the evidence should be admitted if it will have material probative value on the issue of defendant’s credibility, veracity or honesty on the witness stand. From the standpoint of the defendant, it should not be admitted unless it will have such probative worth, or, even though it has such worth, if to lay it before the jury or court would otherwise be so highly prejudicial as to call for its exclusion. The standard — whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility — is easy of articulation but troublesome in many cases of application.”
Scrutiny of the record discloses that the prosecutor in initiating cross-examination respecting the alleged sale of narcotics on September 13, 1972, specifically referred to the sale as occurring in Franz Segal Park, the same location averred as the scene of the crimes for which defendant was being tried. This conduct was repeated by the prosecutor with respect to the alleged narcotic sale on September 18, 1972. In both instances the prosecutor also elaborated the questioning by explicit reference to the time of day these sales occurred, which time of day coincided with the time of the sales for which defendant was being tried. Next, the prosecutor launched into a series of questions about defendant’s alleged possession of narcotics in his home on September 22, 1972. Reference was pointedly made to the alleged discovery of
To reiterate, it is not the mere fact that the cross-examinatian related to alleged crimes similar to that of which the defendant is charged which rendered the cross-examination improper. It is the specificity, the manner of the cross-examination, which admits of calculation to show in related fashion that the commission of the prior crime warrants concluding that the crime charged was committed, which constitutes impropriety on this record.
Accordingly, the judgment of the Supreme Court, Bronx County (Warner, J.), rendered April 12, 1973, should be modified, on the law, by reversing said judgment insofar as it convicted defendant, upon a jury verdict, of three counts of criminally selling a dangerous drug in the third degree, and a new trial ordered on those counts, and as so modified, the judgment should be affirmed.
Stevens, P. J., Markewich, Kupferman and Nunez, JJ., concur.
Judgment, Supreme Court, Bronx County, rendered on April 12, 1973, unanimously modified, on the law, by reversing said judgment insofar as it convicted defendant, upon a jury verdict, of three counts of criminally selling a dangerous drug in the third degree, and a new trial directed on those counts, and as so modified, the judgment is affirmed.