Opinion
June 17, 1985
Appeal from the Supreme Court, Kings County (De Lury, J.).
Judgment affirmed.
The prosecution called Pasquale Simone to testify regarding certain statements that defendant allegedly made to him regarding the abuse and subsequent death and dismemberment of defendant's wife's three-year-old daughter. Simone testified on both direct and cross-examination that he had been convicted after trial in 1978 of conspiracy to commit murder. At the time of the instant trial, an appeal in connection with Simone's conviction was pending. Simone invoked his privilege against self-incrimination as to two questions asked by defense counsel on cross-examination regarding the facts underlying his conviction.
Defendant contends that the trial court erred when it allowed Simone to invoke his 5th Amendment rights on cross-examination. He maintains that Simone was not justified in invoking the privilege and that his invocation of the privilege prejudiced defendant. We disagree.
The court properly limited defense counsel's cross-examination of Simone regarding the facts underlying his criminal conviction, as to which an appeal was still pending, since his appeal could have resulted in a new trial ( see, Matter of Jaime T., 96 Misc.2d 173; Knight v. Maybee, 44 Misc.2d 152; Klein v Harris, 667 F.2d 274; Prentice v. Hsu, 280 F. Supp. 384). The court properly allowed Simone's testimony to stand because the two questions he refused to answer about his prior conviction related only to the collateral matter of his credibility ( Matter of Ryder v. Harris, 93 A.D.2d 971; Klein v. Harris, supra), and did not pertain at all to the facts surrounding the charged crimes. Since the unanswered questions were collateral, allowing Simone to refrain from answering them did not violate defendant's right to confront witnesses ( People v. Jones, 99 A.D.2d 471; accord, People v. Acomb, 87 A.D.2d 1, lv dismissed 56 N.Y.2d 1034).
The evidence presented at trial was legally sufficient to prove beyond a reasonable doubt that defendant was guilty, both as a principal and as an accessory, of depraved indifference murder (Penal Law § 125.25; People v. Brathwaite, 63 N.Y.2d 839; People v. Register, 60 N.Y.2d 270, cert denied ___ US ___, 104 S Ct 2159; People v. Poplis, 30 N.Y.2d 85; People v. Kanelos, 107 A.D.2d 764; People v. McNeeley, 77 A.D.2d 205; People v. Lilly, 71 A.D.2d 393).
We have reviewed the other issues raised by defendant and find them to be without merit. Mollen, P.J., Rubin, Lawrence and Kunzeman, JJ., concur.