Opinion
Argued February 16, 1978
Decided March 29, 1978
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, WILLIAM J. FLYNN, JR., J.
Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for appellant.
Joseph B. Mistrett and Nathaniel A. Barrell for respondent.
MEMORANDUM.
Order affirmed for the reasons stated by Mr. Justice RICHARD D. SIMONS at the Appellate Division.
It is clear on the facts of this case, particularly as the evidence developed at trial, that the extensive cross-examination on prior drug possession charges was improper. Under the circumstances there was too great a danger that the evidence would tend to demonstrate a propensity to commit the very crime for which the defendant was on trial rather than to impeach his credibility (see People v Wright, 41 N.Y.2d 172, 175; People v Duffy, 36 N.Y.2d 258, 262, cert den 423 U.S. 861; People v Sandoval, 34 N.Y.2d 371, 377-378).
The order of the Appellate Division should be reversed and the judgment of the Supreme Court, Erie County, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree, reinstated for the reasons set forth in the dissenting opinion of Mr. Justice MICHAEL F. DILLON at the Appellate Division.
The necessarily wide latitude and broad discretion of nisi prius to control the scope of cross-examination with respect to defendant's prior immoral, vicious or criminal acts as bearing upon his credibility (People v Schwartzman, 24 N.Y.2d 241, 244, cert den 396 U.S. 846), precluded the Appellate Division "in the absence of `plain abuse and injustice' * * * from substituting its judgment" for that of the trial court "and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal" (People v Sorge, 301 N.Y. 198, 202; see, also, People v Sandoval, 34 N.Y.2d 371, 375-376). Faced with defendant's testimony that he did not engage in the illicit transaction for which he was charged, it was perfectly proper to permit cross-examination which was probative of defendant's credibility (People Duffy, 36 N.Y.2d 258, 262, cert den 423 U.S. 861; cf. People v Wright, 41 N.Y.2d 172, 175), especially when properly limited as here by pertinent instructions to the jury. The discretion of an appellate court should not be blithely substituted for that of a trial court where the record conclusively demonstrates that nisi prius exercised its discretion, not only without abuse as a matter of law, but with an acute awareness and recognition of the need to guarantee the defendant a fair trial.
Chief Judge BREITEL and Judges JONES, WACHTLER and FUCHSBERG concur in memorandum; Judge COOKE dissents and votes to reverse in a separate opinion in which Judges JASEN and GABRIELLI concur.
Order affirmed.