Lead Opinion
OPINION OF THE COURT
Harold Mayrant has been convicted of assault in the second degree in connection with his stabbing of a friend, Alexander Woods. On appeal to us from an Appellate Division order of affirmance, the defendant complains that the Trial Judge, in denying his Sandoval (People v Sandoval,
Specifically, prior to trial defendant sought an informational ruling as to whether his two prior convictions would be permitted to be used to impeach his credibility if he took the stand in his own defense. The motion was denied with leave to renew at the close of the People’s case. At that time, it was denied again, the Trial Judge giving the following reason: "THE COURT: The Court, as I stated before, has heard extensive arguments in this case as to defendant’s prior propensities for committing violent acts, [which] will go to the heart of the defendant’s testimony should he take the stand as to who was or who was not the aggressor in the instant proceeding. And for that reason this Court will permit, if [he] take[s] the stand, [the] defendant to be cross-examined as to whether he did in the past, rather if he was in the past convicted of acts of violence and so your motion is denied.”
As authorized by this ruling, during defendant’s testimony the prosecutor developed the circumstances underlying each conviction. In one, defendant, who had fired several shots at a robber, had eventually pleaded guilty to possession of a
The applicable rules of law are uncomplicated. A defendant who exercises his constitutional right to testify may be cross-examined in good faith concerning his prior immoral, vicious or criminal conduct only if it has a bearing on his credibility as a witness (People v Dickman,
This principle is "rooted in practical policy, justice and fairness” rather than in logic (People v Richardson,
These competing considerations require that, upon an application to limit the use of prior convictions of a defendant on his cross-examination, "a balance * * * be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf’ (People v Sandoval,
The difficulty with the Trial Judge’s determination here, however, is that, from the record before us, its language being accorded its ordinary meaning, we are compelled to conclude that, in denying defendant’s application, the court failed to consider both of the available alternatives (cf. People v Caviness,
Nor may the error be treated as harmless. That an altercation took place is not disputed; both the defendant and the victim were hospitalized and arrested. The only serious issue was justification. The defendant was his only eyewitness. Arrayed against that testimony were only the victim and his wife. Under these circumstances, it is impossible to say whether the Trial Judge, had he weighed all the considerations we have articulated, would not have limited the cross-examination as to prior criminal acts and whether, if he had done so, the scales would have been tipped for instead of against the defendant (cf. People v Dickman,
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Dissenting Opinion
I agree with the majority that the trial court erred in the standard used in deciding to allow the defendant to be cross-examined with respect to his prior convictions (see People v Sandoval,
The test for determining whether a particular nonconstitutional error may be considered harmless in a given case is twofold: first, there must be overwhelming evidence of guilt; and, second, the court must be able to find that there does not exist a significant probability that the defendant would have been acquitted absent the error (People v Crimmins,
Defendant candidly admitted the act charged, and based his defense on a claim of justification. According to defendant’s testimony, he and Alexander Woods began their quarrel over the ownership of a bicycle in defendant’s apartment. Woods then took the bicycle and returned to his own home. Defendant followed him and entered the Woods’ dwelling where, according to defendant, Woods punched him. Defendant immediately drew his knife and stabbed Woods, leading to an escalation of the altercation including three serious stab wounds inflicted on Woods. The testimony of Woods and his wife clearly demonstrated that the defendant was the aggressor, but need not here concern us, in view of defendant’s own testimony.
Even accepting completely the defendant’s version of the incident, it is abundantly clear that the defendant’s admitted use of deadly physical force cannot be characterized as justifiable under any view of the facts (see Penal Law, § 35.15). Defendant admits that it was he who first drew a weapon and began to stab Woods. This assault upon an apparently weaponless victim took place in the victim’s own home, in response to at most a few curses and a single punch. It appears clear that under these circumstances the defendant’s response was so unreasonably out of proportion to the attack as to negate any claim of justification, as a matter of law. The defendant has completely and effectively defeated his claimed justification by his own testimony.
In view of the overwhelming evidence of guilt, and the absence of any substantial probability that the error influenced the jury’s verdict in light of the defendant’s own inculpatory testimony, I would hold the error harmless (see People v Cook,
Chief Judge Breitel and Judges Jones and Cooke concur with Judge Fuchsberg; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judges Jasen and Wachtler concur.
Order reversed, etc.