Opinion
Argued May 11, 2000.
December 6, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered November 24, 1998, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Tarik Fouad Ajami of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Karen L. Ross, and Vered Adoni of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was charged with the 1997 gunpoint robbery of the complainant in an alley near Jamaica Avenue, a main shopping street in Queens, at about 4:00 P.M. Before the trial, the Supreme Court issued a Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371) which precluded the People from cross-examining the defendant about, inter alia, the underlying facts of three prior robbery convictions in 1980, 1983, and 1990. The defendant did not take the stand. However, his fiance testified that she was with the defendant during the afternoon when the robbery occurred. According to the fiance, she and the defendant were operating a three-card monte game on Jamaica Avenue at the relevant time. She was not asked any questions on direct examination about the defendant's character nor did she volunteer any such information.
On cross-examination, the prosecutor questioned the fiance extensively about three-card monte games, her role as a lookout during the game, and her knowledge of the defendant's whereabouts during the afternoon. The prosecutor elicited the following testimony:
"Q. You don't want him to go to jail?
"A. Exactly. But I know in my heart that, I know what they said he did, he did not do it.
"Q. You know that in your heart?
"A. I know that in my heart.
"Q. How do you know that?
"A. Because he was with me the whole time. He doesn't do things like that.
"Q. He doesn't do things like that?
"A. No, he does not."
The prosecutor sought permission from the Supreme Court to cross-examine the fiance about the defendant's prior convictions on the ground that the fiance had presented character evidence. The prosecutor relied on the above testimony and the fiance's responses to previous cross-examination questions which indicated that the defendant was a good person and a good father. The Supreme Court granted the prosecutor's request over the defense counsel's objection. The prosecutor then asked the fiance if it would change her opinion of the defendant if she knew that he had been convicted of robbery charges in 1980, 1983, and 1990. She was specifically questioned about whether she knew that the previous convictions involved gunpoint robberies.
The Supreme Court erred in permitting the prosecutor to cross-examine the fiance about the defendant's previous convictions. Although such cross-examination may be permissible if the defendant "opens the door" by offering evidence which tends to mislead the jury, in this case, the Supreme Court's ruling permitted the People to "`open the door' and then step through it" (People v. Gatewood, 241 A.D.2d 372, 373).
"Whether the defendant's character will become an issue in the trial is the defendant's option, for until he introduces evidence of good character the People are precluded from showing that it is otherwise" (People v. Kuss, 32 N.Y.2d 436 443, cert denied 415 U.S. 913). A defense witness who has not testified as a character witness on direct examination may not be cross-examined about the defendant's criminal record (see, People v. Cruz, 47 N.Y.2d 838; People v. Nielson, 115 A.D.2d 972). However, once the defendant has introduced character evidence, the People may question the defense witness about whether he or she has heard of the defendant's previous criminal acts, since such questions are relevant to the ability of the character witness to accurately reflect the defendant's reputation in the community (see, People v. Kuss, supra; People v. Lopez, 258 A.D.2d 388; People v. Yarbough, 229 A.D.2d 605; People v. Coleman, 195 A.D.2d 475; People v. Duhaney, 157 A.D.2d 665; see generally, Prince, Richardson on Evidence § 4-406 [Farrell 11th ed]). The prosecution may also rebut the defendant's character evidence by calling witnesses to testify that the defendant's reputation is other than what the defendant claims (see, People v. Mancini, 213 A.D.2d 1038), and the prosecution may independently prove any previous conviction for "an offense the commission of which would tend to negate any character trait or quality attributed to the defendant in [the character] witness' testimony" (CPL 60.40; see, People v. Hatfield, 144 A.D.2d 944; see generally, Prince, Richardson on Evidence § 4-404 [Farrell [11th ed]).
Here, since the fiance did not testify as a character witness on direct examination, the Supreme Court erred in permitting the prosecutor to cross-examine her about the defendant's criminal history. The prosecutor apparently viewed certain nonresponsive answers by the fiance on cross-examination as an attempt by the defendant to place evidence of his good character before the jury. Assuming that this was a valid argument, the testimony at issue consisted of the fiance's private opinion, rather than evidence of the defendant's reputation in the community, and cannot properly be construed as character evidence (see, People v. Kuss, supra; People v. Van Gaasbeck, 189 N.Y. 408). In any event, the prosecutor's cross-examination questions were improper, as they were not limited to whether the fiance had heard of the defendant's previous convictions (see, People v. Kennedy, 47 N.Y.2d 196, 206; People v. Lopez, supra; People v. Garrick, 246 A.D.2d 478; People v. Leuthner, 216 A.D.2d 327).
The Supreme Court also erred in concluding that the fiance's testimony "opened the door" to the modification of its Sandoval ruling. If a defense witness testifies to facts that are in conflict with evidence precluded pursuant to a Sandoval ruling, the defense "opens the door" on that issue, and the witness is subject to impeachment by the prosecutor's use of the otherwise precluded evidence (see, People v. Fardan, 82 N.Y.2d 638; People v. Purcell, 268 A.D.2d 491; People v. Velez, 265 A.D.2d 162). Here, however, the fiance did not testify on direct examination as to any facts regarding the defendant' s previous criminal history. The People should not have been permitted to circumvent the Sandoval ruling by opening the door that the defendant kept closed (see, People v. West, 62 N.Y.2d 708, revg 92 A.D.2d 620).
Finally, the improper questioning of the fiance cannot be considered harmless error (see, People v. Nielson, supra). The record presents a close issue of identification. The complainant testified that she was robbed at gunpoint at about 4:00 P.M. and that the robber took jewelry and a package containing shoes from her. The defendant was arrested less than a half-hour later, in the same area, in a car, and neither the gun nor the complainant's possessions were recovered. Under the circumstances, the improper admission of evidence of the defendant's previous convictions was prejudicial. Accordingly, the defendant is entitled to a new trial.
BRACKEN, J.P., O'BRIEN and FLORIO, JJ., concur.
I would affirm. The record supports the Supreme Court's ruling that the defendant's fiance opened the door when, after providing the defendant with an alibi by claiming he was with her the entire time, she added that he did not do "things like that", namely, commit robberies at gunpoint. This testimony was offered as evidence of the defendant's character, and the prosecutor was properly permitted to inquire whether the witness was aware of the defendant's prior robbery convictions in an effort to impeach her credibility (see, People v. Fardan, 82 N.Y.2d 638, 646; People v. Purcell, 268 A.D.2d 491; People v. Mateo, 182 A.D.2d 644; People v. Tuckerman, 134 A.D.2d 732). Further, the Supreme Court issued a proper limiting instruction when it charged the jury that it could only consider the defendant's prior convictions for the purpose of evaluating the credibility of the defendant's fiance and not as proof that the defendant had committed the crime for which he was on trial (see, People v. Fardan, supra, at 646-647).