People v. Cook

Mangano, J.,

dissents and votes to affirm the judgment of conviction, with the following memorandum: The majority is of the view that three instances of prejudicial error were committed during the trial which mandate a reversal of the judgment convicting defendant of robbery in the first degree, robbery in the second degree, burglary in the second degree, and sodomy in the first degree. 111 respectfully disagree. H Defendant’s conviction rested on the positive in-court identification of the defendant by the victim, who also identified the defendant at a pretrial lineup several weeks after the incident. The record indicates that the victim’s in-court identification of the defendant as her assailant was based on her observation of the defendant during the commission of the crimes for a continuous 20-minute period at extremely close range. The victim described the defendant to the police shortly after the incident as having crooked and rotted teeth. This description was corroborated by the arresting detective who noticed the same features when she arrested the defendant approximately two weeks after the incident. 11 Under these circumstances, I am of the view that two of the errors cited by the majority, i.e., the improper re-cross-examination of defendant and the brief and inadvertent bolstering testimony of the arresting detective which was cut off in mid-sentence by defense counsel’s motion to strike (i.e., “I had a conversation with her * * * regarding the photo identification. And __”), must be considered harmless (People v Gaskin, 78 AD2d 877; People v Jones, 89 AD2d 875). 11 Finally, I am of the view, contrary to that adopted by the majority, that no error was committed by the trial court in permitting the prosecution to reopen cross-examination after summations to impeach defendant’s credibility by questioning him as to his prior convictions. 11 During summation defense counsel stated that there was “nothing in evidence to indicate that [defendant] was ever convicted of a crime”. In her summation, the prosecutrix countered defense counsel’s remark by stating, over objection, that defendant had a prior record. After completing her summation, the prosecutrix moved to reopen the trial to cross-examine defendant as to the prior convictions. In her argument to the court, outside the jury’s presence, the prosecutrix stated: “Sandoval cannot become a shield to allow a defendant to commit perjury. Or in this case, to hide behind a statement on summation. The fact that the convictions were Sandovaled out does not mean that [defense counsel] has the right to say in this summation that there is no evidence of convictions”. 11 The trial court granted *753the prosecutrix’ motion and allowed the trial to be reopened for the limited purpose of impeaching defendant’s credibility by examination of “his prior criminal record”, holding as follows: “Sandoval is not a shield. Sandoval cannot be used in both ways. Defense counsel cannot claim Sandoval at one time and then use Sandoval at another. I realize the posture of this trial, that the Court was allowing summations, and that we would be ready to charge. However, in the interests of justice I cannot allow this statement to remain as it was made to the jury to bolster the credibility of the defendant”. 11 Immediately before the jury was charged, defendant was questioned about his prior convictions and admitted them. Additional summations were then allowed. 11 The Court of Appeals has held that the order of trials in criminal cases, although fixed by statute, “is not a rigid one and the common-law power of the trial court to alter the order of proof ‘in its discretion and in furtherance of justice’ remains at least up to the time the case is submitted to the jury” (People v Olsen, 34 NY2d 349, 353, quoting from People v Benham, 160 NY 402, 437). In the case at bar, the reopening occurred prior to the jury’s deliberations and was allowed in order to correct the defense counsel’s misstatement which could have been interpreted by the jury as an affirmative representation that defendant had never been convicted of a crime. Under these circumstances, the trial court’s ruling, granting the prosecutrix’ motion to reopen, did not constitute error (People v Fleischman, 10 NY2d 1025, affg 13 AD2d 647; People v Roseman, 78 AD2d 878; cf. People v Griffin, 29 NY2d 91).