Opinion
Argued May 1, 1980
Decided June 12, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, RICHARD G. DENZER, J.
Gerald B. Lefcourt and Richard Ware Levitt for appellant.
Robert M. Morgenthau, District Attorney (Mark Dwyer and Robert M. Pitler of counsel), for respondent.
The record demonstrates that the trial court exercised its discretion when it ruled that the prosecution would be permitted to impeach the credibility of the defendant, if he took the stand, by confronting him with his prior criminal acts. Indeed, the court, in its opinion carefully balanced the probative worth of the tendered proof against the risk of prejudice and it cannot be said that the court's ruling which would have permitted cross-examination as to these acts constituted an abuse of discretion as a matter of law (People v Mackey, 49 N.Y.2d 274, 281; People v Sandoval, 34 N.Y.2d 371, 378).
The position advanced by the dissent calls for a reaffirmation that our decision in People v Sandoval ( 34 N.Y.2d 371, supra) did not change the pre-existing law as to the permitted scope of cross-examination for impeachment purposes (e.g., People v Schwartzman, 24 N.Y.2d 241, cert den 396 U.S. 846; People v Sorge, 301 N.Y. 198). It prescribed a procedural vehicle by means of which a defendant could obtain an advance ruling as to the scope of cross-examination which would be permitted if he were to take the witness stand. The determination of that scope remained, as it always had been, committed to the sound discretion of the trial court. We explored considerations pertinent to the exercise of that discretion; we did not, however, as the dissent suggests, mandate the application of any particular balancing process. We have subsequently indicated that in the usual case, appellate review of the exercise of discretion by the trial court in any particular instance ends in the intermediate appellate court (People v Mackey, 49 N.Y.2d 274, 281, supra). It is only when the ruling of the trial court has been based on an error of law in the pre- Sandoval sense that reversal in our court is warranted (e.g., People v Davis, 44 N.Y.2d 269 [Trial Judge in a pre- Sandoval case erroneously held that he was barred from exercising normal discretionary supervision of scope of cross-examination]; People v Mayrant, 43 N.Y.2d 236 [cross-examination as to prior violent acts admitted as evidence in chief to establish propensity to commit such acts]; cf. People v Kennedy, 47 N.Y.2d 196, 205 ["considerations we reiterated in People v Sandoval ( 34 N.Y.2d 371) for determining when such cross-examination should be allowed" not applicable to convictions alone but applied as well to alleged immoral, vicious or criminal acts regardless of whether those acts resulted in convictions]).
Nor does the other issue tendered by defendant call for a reversal of his conviction. The attorney for the defendant voiced a general objection to the People's request to close the courtroom during the testimony of the undercover detective and an informant. However, defense counsel made no request for a hearing nor did she dispute the People's contention that the witnesses would be in danger if the general public was not excluded. Consequently it cannot be said that the court erred in granting the People's request for closure.
Accordingly, the order of the Appellate Division should be affirmed.
There should be a reversal and a new trial.
On the Sandoval issue it is clear that the Trial Judge used the wrong criteria and thus did not properly exercise his discretion in determining the extent of permissible cross-examination (People v Kennedy, 47 N.Y.2d 196; People v Davis, 44 N.Y.2d 269; People v Mayrant, 43 N.Y.2d 236). Admission of evidence of prior crime on the issue of defendant's credibility has, as the majority notes, always been essentially a matter for the Trial Judge's discretion. But the thrust of Sandoval is that because a jury may be led by such evidence to infer criminal propensity and convict a defendant in fact innocent of the particular crime, defendant is in effect denied his constitutional right to be a witness in his own behalf unless he knows before he takes the stand what evidence of prior crime he will face. Sandoval spells out the factors on which the determination turns: how long a time has elapsed, was the crime deliberate or one of impulse or addiction, how relevant is it on credibility. The hearing, mandated by Sandoval so that there can be appellate review of the Trial Judge's determination, is of little value if the issue can be decided by the Trial Judge in his unfettered discretion. The irreducible minimum is that the determination be made on a reasoned basis, measuring propensity for conviction against relation to credibility.
Judged by that standard the hearing in this case failed to meet Sandoval's requirement that the Trial Judge consider both "the interests of the People and the rights of the defendant" (People v Sandoval, 34 N.Y.2d 371, 375). This is evident from his categorical statements, first, that "As long as the crime involved does entail moral turpitude, it seems to me that the jury has a right to know about it"; second, that he was not sympathetic to the argument that cross-examination about a crime which tended to indicate a predisposition could by its prejudicial effect outweigh its materiality, because that would reward one who specialized in a particular type of crime; and, third, that it would be misleading to the jury and unfair to the People to permit defense counsel to cross-examine the informant about past crimes and not have defendant similarly questioned. Since his denial of the Sandoval motion was "for all of these reasons", it is clear that there was more dogma than discretion in the ruling.
While the ruling closing the courtroom is more debatable, I would reverse as to that also. Defendant's attorney having objected, even though indicating that she was not sanguine of a favorable ruling, the court, in order to assure "that the defendant's right to a public trial is not being sacrificed for less than compelling reasons" (People v Jones, 47 N.Y.2d 409, 414-415), should have required the People to present more than the prosecutor's conclusory statement that "I think it would be dangerous, if not to his health, to possible future investigations of this [undercover police] officer, to have the courtroom open".
I agree with the result reached by Judge MEYER in dissent, but do so only insofar as it rejects the notion that a defendant who objects to closure must also specifically request a hearing before the court is required to conduct an appropriate inquiry (see People v Jones, 47 N.Y.2d 409).
Judges JASEN, GABRIELLI, JONES and WACHTLER concur in Per Curiam opinion; Judge MEYER dissents and votes to reverse in an opinion in which Judge FUCHSBERG concurs and in which Chief Judge COOKE concurs in part in a separate dissenting memorandum.
Order affirmed.