Opinion
May 11, 1981
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered June 23, 1978, convicting him of criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. Appellant raises the issue, for the first time on appeal, that the police, without consent or a search warrant, entered upon a privately owned unfenced railroad siding, used by appellant for the storage of railroad cars, in order to examine a Hobart generator which had been standing outdoors on the property in full view of passers-by. Since CPL 710.60 requires all grounds upon which suppression of evidence is urged to be set forth in the moving papers, this issue is not preserved for review on appeal. (See People v Tutt, 38 N.Y.2d 1011.) Appellant urges as a second ground for reversal that it was error to cross-examine him regarding his having published pamphlets which instructed people as to how to cheat the telephone company by using slugs, etc., and how to buy goods without paying sales tax. "[A] defendant who chooses to testify may be cross-examined concerning any immoral, vicious or criminal acts of his life which have a bearing on his credibility as a witness, provided the cross-examiner questions in good faith and upon a reasonable basis in fact" (People v Greer, 42 N.Y.2d 170, 176; People v Sorge, 301 N.Y. 198). On the facts of this case, the publishing of books or pamphlets, an activity protected under the First and Fourteenth Amendments, should not be categorized as an "immoral act" under this rule. It was similarly error to admit the pamphlets into evidence as "Introduction of extrinsic documentary material on a matter collateral to the trial issues, solely for the purpose of impeaching a defendant's credibility, is improper" (People v La Rue, 47 A.D.2d 649; People v Schwartzman, 24 N.Y.2d 241, cert den 396 U.S. 846; People v Duncan, 13 N.Y.2d 37). The errors here were nonconstitutional and therefore are prejudicial only if it is concluded "that there is a significant probability, rather than only a rational possibility * * * that the jury would have acquitted the defendant had it not been for the error or errors which occurred" (see People v Crimmins, 36 N.Y.2d 230, 242). In light of the overwhelming evidence of appellant's guilt and the court's curative charges, there is no "significant probability" that acquittal would have resulted had it not been for the errors. Accordingly, the judgment is affirmed. Mollen, P.J., Hopkins, Damiani and Titone, JJ., concur.