Summary
In People v Edwards (80 A.D.2d 993, 994, supra), the Fourth Department found only that in allowing inquiry into the acts underlying pending indictments there was "no clear abuse of discretion * * * as would require reversal".
Summary of this case from People v. WilliamsOpinion
March 27, 1981
Appeal from the Monroe County Court.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Prior to his trial on robbery and grand larceny charges, defendant was afforded a hearing pursuant to People v. Sandoval ( 34 N.Y.2d 371). On this appeal, defendant contends the trial court erred in ruling that if he were to take the stand in his own behalf at trial, defendant could be cross-examined with respect to the facts underlying a pending indictment charging him with another robbery. Although there are some cases holding such cross-examination to be erroneous (see People v. Hepburn, 52 A.D.2d 958; see, also, People v. Pilgrim, 69 A.D.2d 825; People v Mohammed, 63 A.D.2d 655), we cannot agree. The Court of Appeals has stated that although a witness may not be asked whether he has been indicted, the mere fact of the indictment should not proscribe inquiry into the underlying criminal act (People v Rahming, 26 N.Y.2d 411, 419; People v. Morrison, 194 N.Y. 175, 178; cf. People v. Sorge, 301 N.Y. 198). This court has also taken the position that although a prosecutor may not ask a defendant whether he has been indicted, he may cross-examine the defendant concerning the facts underlying a pending indictment (People v Jackson, 41 A.D.2d 686; see, also, People v. Addison, 73 A.D.2d 790). The fact that the crimes for which defendant was on trial and the crimes charged in the pending indictment were similar will not foreclose the cross-examination if it appears that the evidence is otherwise admissible (People v. Anderson, 75 A.D.2d 988). The crimes charged in the pending indictment, robbery and larceny, are crimes of individual dishonesty and untrustworthiness, that are relevant to defendant's veracity as a witness (People v. Sandoval, supra, p 378). Accordingly, we find no clear abuse of discretion with respect to the court's Sandoval ruling as would require reversal (People v. Mackey, 49 N.Y.2d 274, 281-282; People v. Shields, 46 N.Y.2d 764, 765). During the trial, a police officer testified, without objection, that the victim and another eyewitness had identified the defendant as the perpetrator of the robbery within a half hour after the robbery took place. When the prosecutor made reference to the police officer's testimony in this respect during the course of his summation, defense counsel objected and moved for a mistrial, claiming that such testimony constituted impermissible "bolstering" under the rule of People v. Trowbridge ( 305 N.Y. 471). The trial court denied the motion for mistrial, noting that inasmuch as there was no objection to the police officer's testimony at trial, such testimony was properly part of the trial record which was commented on by both sides during summation. The record discloses that the evidence of defendant's guilt was overwhelming. It consisted of the identification made by not only the victim but by a passing motorist, each of whom had an opportunity to observe the defendant during the course of the commission of the crime and identify him when he was taken into custody shortly thereafter. While bolstering is impermissible (People v. Trowbridge, supra), on this record it cannot be held to constitute reversible error (see People v. Burgess, 66 A.D.2d 667). In view of the overwhelming proof of defendant's guilt, the error, if any, was harmless (People v. Galloway, 77 A.D.2d 542; People v. Burgess, supra; People v. Du Pont, 60 A.D.2d 689; People v. Nival, 41 A.D.2d 777, affd 33 N.Y.2d 391).