People v. Syposs

— Judgment reversed, as a matter of discretion in the interest of justice, and new trial granted. Memorandum: Defendant appeals his conviction of sodomy in the first degree and sexual abuse in the first degree upon a jury verdict based on two alleged incidents of sexual activity with his 14-year-old daughter. We conclude that the court abused its discretion and denied defendant a fair trial by permitting cross-examination of defendant regarding prior immoral acts with the complainant’s older sister (People v Brown, 70 AD2d 1043). While a defendant may be cross-examined concerning immoral, criminal or vicious acts which have a bearing on his credibility as a witness, provided the cross-examiner questions in good faith and upon a reasonable basis in fact (People v Duffy, 36 NY2d 258, 262, mod 36 NY2d 857, cert denied 423 US 861; People v Kass, 25 NY2d 123, 125-126; Richardson, Evidence § 498 [Prince 10th ed 1973]), "the law is inflexibly set against questioning as to such acts when the obvious intent is to show from character or experience a propensity to commit the crime for which defendant is on trial” (People v Duffy, supra, p 262; see, People v Schwartzman, 24 NY2d 241, 247, mod 24 NY2d 914, cert denied 396 US 846). The preferred procedure in such cases is for the defendant to request an advance ruling limiting the scope of cross-examination (People v Sandoval, 34 NY2d 371). However, Sandoval "merely established procedural guidelines and identified relevant criteria for the issuance of a ruling in advance” and "neither enlarged nor diminished the court’s inherent and pre-existing power to exercise general control over the range of cross-examination”; consequently, a defendant retains the right "to object at trial to prejudicial cross-examination, and when his objection challenges inquiry into his prior misconduct, he is entitled to a ruling based upon the same criteria as would have been [601] applied had the issue been raised before trial” (People v Ortero, 75 AD2d 168, 174-175; see, People v Ventimiglia, 52 NY2d 350; People v Innis, 98 AD2d 808). Defendant did not directly object to cross-examination into his alleged prior misconduct; rather, he objected to the admissibility and use of the document upon which the cross-examination was based. Thus, while defendant properly sought to invoke the general rule that "a cross-examiner cannot contradict a witness’ answers concerning collateral matters by producing extrinsic evidence for the sole purpose of impeaching credibility” (People v Schwartzman, 24 NY2d 241, 245, supra, see, People v Molineux, 168 NY 264), he did not technically preserve an objection to the cross-examination as a matter of law (CPL 470.05 [2]). However, although defendant failed to articulate a proper objection, the Trial Judge was aware that the prosecutor was venturing into a highly prejudicial area (see, People v Ventimiglia, supra). Moreover, the evidence of defendant’s guilt was far from overwhelming and we exercise our discretion to reverse the conviction in the interest of justice. We have considered the remaining other issues raised by defendant and find them to be without merit. All concur, except Doerr and Denman, JJ., who dissent and vote to affirm, in the following memorandum by Denman, J., in which Doerr, J., concurs.