Opinion
03-224, 571069/02.
Decided September 28, 2005.
Defendant appeals form a judgment of Criminal Court, New York County, rendered June 21, 2002 after jury trial (Ellen Coin, J.), convicting him of assault in the third degree and harassment in the second degree, and sentencing him to six months in jail and a monetary fine.
Judgment, rendered June 21, 2002, reversed, on the law and the facts and in the interest of justice, the sentence vacated, and the matter remanded for new trial.
PRESENT: Davis, J.P., Gangel-Jacob, Schoenfeld, JJ.
The testimony at trial was contradictory as to whether defendant or the victim was the aggressor in a fight. A pre-trial Sandoval ruling addressed defendant's prior convictions — in particular, a disorderly conduct conviction in 2000 apparently stemming from a charge of assault. The court precluded any questioning as to the details of this crime unless defendant were to "open the door." On cross-examination, the prosecutor overstepped his bounds with regard to a prior guilty plea to a felony drug charge, leading the court to issue a curative instruction to the jury. When the prosecutor then asked about other crimes, defendant blurted out that he had once beaten his cousin in a fight. Ruling at a sidebar that defendant had thus "opened the door," the court then permitted the prosecutor to inquire into the details of this fight, which were somewhat similar to the case on trial (punching the victim and throwing him to the ground).
The trial court erred in ruling that defendant had opened the door to further questioning on the underlying facts of the prior conviction for disorderly conduct. Defendant did not testify as to facts in conflict with the precluded matter ( People v. Grant, 234 AD2d 475; cf. People v. Rodriguez, 85 NY2d 586, 591; People v. Fardan, 82 NY2d 638, 646). Even had his testimony been considered ambiguous on this point, further probing should have been precluded ( People v. Moore, 92 NY2d 823). By exceeding the bounds of the Sandoval ruling, in such a close case on the issue of credibility, the prosecutor denied defendant a fair trial ( People v. Powe, 146 AD2d 718, lv denied 73 NY2d 1020). Defense counsel's failure to object to such excess raises questions as to whether defendant received appropriate representation at trial.
This constitutes the decision and order of the Court.