People v. Sampel

Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered September 19, 2002. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the first degree and menacing in the second degree. It is hereby ordered that the judgment so appealed from be [1024] and the same hereby is reversed on the law and a new trial is granted. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of criminal contempt in the first degree (Penal Law § 215.51 [b] [i]) and menacing in the second degree (§ 120.14 [1]). Defendant’s former girlfriend testified at trial that defendant violated an order of protection that prohibited defendant from having contact with her and that defendant raised a hammer over his head and threatened to kill her. Contrary to defendant’s contention, County Court did not abuse its discretion in refusing to permit defendant to cross-examine his former girlfriend with respect to an alleged prior bad act in an attempt to impeach her credibility (see generally People v Lucius, 289 AD2d 963, 964 [2001], lv denied 98 NY2d 638 [2002]; People v Melcherts, 225 AD2d 357 [1996], lv denied 88 NY2d 881 [1996]). We agree with defendant, however, that the court erred in refusing to permit a defense witness to testify that defendant’s former girlfriend told that defense witness that she had defendant arrested in order to obtain defendant’s vehicle. Defendant’s former girlfriend denied on cross-examination that she had made such a statement, and defendant was denied the opportunity to show that his former girlfriend had an interest in his arrest and incarceration by providing extrinsic evidence that contradicted her testimony on cross-examination. “The denial of the opportunity to contradict answers given by a witness to show bias, interest or hostility in this case deprived defendant of his right to confrontation” (People v Vigliotti, 203 AD2d 898, 899 [1994]; see People v Bartell, 234 AD2d 956 [1996], lv denied 89 NY2d 983 [1997]; People v Green, 156 AD2d 465 [1989], lv denied 75 NY2d 813 [1990]). Defendant was convicted based solely on the testimony of his former girlfriend and an order of protection admitted in evidence, and thus it cannot be said that the error is harmless beyond a reasonable doubt (see generally People v Crimmins, 36 NY2d 230, 237 [1975]; Vigliotti, 203 AD2d at 899; cf. Bartell, 234 AD2d 956 [1996]). We therefore reverse the judgment and grant a new trial (see Vigliotti, 203 AD2d at 898-899). All concur except Hurlbutt, J., who concurs in the result in the following memorandum.