Opinion
October 16, 1975
Judgment, Supreme Court, New York County, rendered on April 18, 1975, convicting defendant, after trial, of two counts of criminal sale of a controlled substance in the second degree, unanimously reversed, on the law, and new trial directed in the interests of justice. Defendant did not take the stand and did not present character witnesses on his behalf. Nor did defense counsel's introduction into evidence of defendant's personnel folder on the issue of whether he worked overtime on the days on which the alleged sales took place put defendant's character in issue. Accordingly, the court committed prejudicial error when it permitted the prosecution, over objection, to cross-examine defense witnesses concerning defendant's imprisonment in April, 1974 stemming from an unrelated Federal conviction. In addition, the prosecutor improperly questioned defendant's wife, over defense counsel's objection, concerning whether defendant had ever told her about one "Fat Frankie" from Brooklyn and that "that's his [defendant's] source of cocaine". Such questioning was obviously designed to attack defendant's character rather than test the credibility of this witness.
Concur — Kupferman, J.P., Lupiano, Tilzer, Capozzoli and Lane, JJ.