Opinion
October 31, 1967
Appeal from a judgment of County Court, Broome County, convicting defendant of violating subdivision 2 of section 1192 Veh. Traf. of the Vehicle and Traffic Law, driving while intoxicated, as a felony. The defendant was sentenced as a second offender to an indeterminate sentence of not less than one year nor more than two years. The appellant contends that the cross-examination of his estranged wife, a witness for the defense concerning collateral matters, exceeded the proper bounds of cross-examination. On direct examination the witness testified that appellant had visited at her home on two occasions the day before his arrest and, that during the afternoon, had taken their two sons shopping to buy shoes, and on his return about 6:00 P.M., he did not appear intoxicated. She further testified that the appellant provided her with $50 a week for the support of herself and her children and, in addition, bought things for the family, like television, washing machines and clothing for the children. She earned $30 a week and testified she was dependent on her husband's income. On cross-examination she was asked whether she had been recently in Family Court regarding nonsupport; whether or not she had charged her husband with assault; and, whether or not he had been involved in an incident with the children involving violence. Her answers to all the questions except one, regarding the assault, were in the negative, and she admitted that she had her husband arrested a long time ago after he had slapped her face. The court granted defendant's motion to strike from the record any reference to the alleged family assault, and so instructed the jury. The cross-examination by the District Attorney did not result in any prejudice or injustice to the appellant. The appellant, through the direct examination of the witness, sought to establish his good character as a provider for his family, and it was proper for the District Attorney to cross-examine the witness as to her knowledge of any disparaging conduct on his part. ( People v. Moore, 18 A.D.2d 417, affd. 13 N.Y.2d 1070.) In view of the appellant's attempt to put his character in issue through the testimony of his spouse, he assumed the risk of any unfavorable testimony adduced by the District Attorney on cross-examination. ( People v. Oakley, 10 A.D.2d 457.) The manner and extent of the cross-examination lies largely within the discretion of the Trial Judge and, although there may be room for a difference of opinion as to the scope and extent of cross-examination, in the absence of "plain abuse and injustice" ( La Beau v. People, 34 N.Y. 223, 230), such discretion should not be disturbed. The appellant also claims that it was error for the prosecution to call, as a rebuttal witness, the Clerk of Broome County Family Court who testified that the appellant had been making support payments to his wife pursuant to an order of the Family Court, and that he was $513 in arrears. He further testified that appellant's wife had appeared in Family Court at a hearing for nonsupport. The testimony of the court clerk related to the credibility and bias of the testimony of appellant's wife. The court properly charged the jury that the testimony of the court clerk was offered by the prosecution on the question of credibility, and could only be considered by the jury on that question which portion of the court's charge was not excepted to by the appellant's attorney. The court did not err here in permitting the use of a rebuttal witness by the People, in view of the circumstances involved in the presentation of the case by the defense and, particularly, on the question of the credibility of the testimony of appellant's wife. The appellant further contends that statements made by the District Attorney in summation constitute prejudicial error. Although the District Attorney's summation included a statement outside the record and another that reached the verge of impropriety, they were either cured by the court's instruction to disregard the statement, or were not so material or prejudicial to require reversal. The appellant also contends that the court committed error in failing to advise appellant of his rights pursuant to section 1943 of the Penal Law. At the sentencing, appellant was represented by counsel, and he was properly advised of all his rights under section 1943 with the exception of his right to attack the constitutionality of his prior felony conviction. The presence of the appellant's trial counsel at the time of sentencing when the second felony offender information was filed was sufficient to waive the procedural safeguards provided by section 1943. ( People v. Gowasky, 244 N.Y. 451; People ex rel. Noworyta v. La Vallee, 13 A.D.2d 869.) The record indicates that there was ample evidence to sustain the verdict of the jury convicting the defendant. The other alleged errors are neither so substantial nor prejudicial as to require a new trial. (Code Crim. Pro., § 542; People v. Fisher, 249 N.Y. 419.) Judgment affirmed. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.