Opinion
November 1, 1994
Appeal from the Supreme Court, New York County (Patricia Williams, J.).
The trial court properly exercised its discretion in limiting the cross-examination of the detective who arrested defendant, since the questions asked were speculative, lacking a good faith basis, and the probative value of the matters sought to be elicited was outweighed by the danger that the main issues would be obscured and the jury confused (see, People v. George, 197 A.D.2d 588, lv denied 82 N.Y.2d 925; People v. Rodriguez, 191 A.D.2d 723, lv denied 81 N.Y.2d 1079). The situation at bar is distinguishable from People v. Garriga ( 189 A.D.2d 236, lv denied 82 N.Y.2d 718) and People v. Gaskin ( 170 A.D.2d 458), upon which defendant relies, because the good faith basis for the precluded cross-examinations in those cases was evident from the circumstances, and the inquiries went directly to credibility and the witnesses' motives to fabricate.
We have considered defendant's other contentions and find them to be without merit.
Concur — Ross, Nardelli and Williams, JJ.
I would grant defendant's motion to file a supplemental brief and hold the appeal in abeyance pending briefing of his argument that the evidence was insufficient as a matter of law to prove the requisite scienter for the crime of criminal possession of a controlled substance in the fifth degree (People v. Ryan, 82 N.Y.2d 497). Contrary to the majority, I believe that defendant's motion to dismiss for failure to prove a prima facie case preserved this issue for review as a matter of law (see, People v. Kilpatrick, 143 A.D.2d 1) and that defendant has therefore demonstrated the existence of a viable appellate issue which was not included in his original brief.
The unpublished Decision and Order of this Court entered herein on August 4, 1994 is hereby recalled and vacated.