People v. Blanchard , 83 A.D.2d 905 ( 1981 )


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  • Appeal by defendant from a judgment of the Supreme Court, Kings County (Brownstein, J.), rendered September 6,1978, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), attempted robbery in the first degree (three counts) and attempted robbery in the second degree (three counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issues have been raised with respect to the facts. Pursuant to People v Sandoval (34 NY2d 371), the trial court ruled that if defendant chose to testify, the prosecution would be permitted to cross-examine him with respect to his prior criminal record. Defendant did not take the stand at the trial. During the course of the trial, however, one of the prosecution witnesses testified about an encounter he had with defendant and his codefendant (whose conviction was affirmed by this court in People v Bray [81 AD2d 1044]) just prior to the occurrence of the crimes charged. Over defense counsel’s objection, the witness was permitted to testify that defendant “started saying I set him up, I had sent him to jail.” The trial court ruled that the testimony was admissible to show that defendant and his codefendant were together in the area just prior to the occurrence of the crimes charged. The court also found that the conversation established a prior relationship between the witness and defendant and was therefore relevant to the question of identification. In his summation, the prosecutor referred to the testimony in question. We conclude that the admission of this testimony was error. Where, as here, the defendant in a criminal trial has not taken the stand or placed his character in issue, the general rule is that the prosecution is prohibited from introducing evidence of his past criminal record (People v Mullin, 41 NY2d 475 [error for the prosecution to elicit testimony that defendant’s photograph was taken from the criminal file]; People v Robbins, 38 NY2d 913). This rule derives from a recognition of the human tendency to more readily believe that a person is guilty of a crime if he has a prior criminal history, and the possibility that a jury may convict a defendant on that basis even though not convinced beyond a reasonable doubt of his guilt of the crime charged (People v Ventimiglia, 52 NY2d 350). A defendant is entitled to have his guilt or innocence determined solely upon the evidence tending to prove the crime charged, uninfluenced by irrelevant and prejudicial facts and circumstances (People v Cook, 42 NY2d 204). The rule is not absolute, however, and ultimately, where the evidence of past criminality is probative of an issue in the case, its admissibility will depend upon a balance between its probative value versus its potential for prejudice (People v Ventimiglia, supra; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264). As our dissenting colleague points out, the evidence of past criminality which was admitted in Ventimiglia was extremely prejudicial, but there the court found that the probative value of that evidence outweighed the resulting prejudice. The court stated (People v Ventimiglia, 52 NY2d 350, 355-356, supra): “[W]here defendants charged with murder, kidnapping and conspiracy have stated as part of their planning that they have a place for disposing of the *906body ‘where we put people * * * and they haven’t found them for weeks and months’, the statement is admissible because its probative value as to premeditation of the murder and as to the plan of the conspiracy outweighs the prejudice resulting from the admission implicit in the statement that defendants have committed prior murders.” While we would agree with the dissent that, in implying that defendants charged, inter alia, with murder had committed previous murders, the Ventimiglia statements were more prejudicial than the instant one, which reveals an unspecified past criminal record, the probative value of the Ventimiglia statements also was far greater. The statement at bar indicates that the witness saw defendant and his codefendant together before the commission of the crime charged, and that the witness was able to identify defendant by virtue of a prior encounter with him. This statement constituted circumstantial evidence of the fact that defendant and his codefendant were together when the crime was committed, but its probative value was limited because of the testimony of several of the victims of the crime which also placed the two defendants together at the actual scene of the crime charged. Thus, the statement, which exposed defendant’s past criminality, was merely cumulative on the issue of identification. The cumulative nature of evidence which exposes a defendant’s past criminality, is a factor to be weighed in balancing its probativeness versus its prejudice (see People v Ventimiglia, 52 NY2d 350, 360, supra; see, also, People v Stanley, 67 Cal 2d 812, 818-819). Another factor to be weighed is the manner in which the evidence came into the case. Here, the evidence came in as part of the prosecution’s direct case rather than in rebuttal of a defense offered by defendant (see People v Ventimiglia, supra; People v Tas, 51 NY2d 915). Further, the purpose served by the challenged testimony could have been achieved without eliciting the prejudicial detail that defendant had previously been in jail (see People v Cook, 42 NY2d 204, supra). Balancing these factors, we conclude that the potential prejudice of the challenged testimony far outweighed its probative value (see People v Conyers, 52 NY2d 454). Finally, we cannot conclude that the error was harmless (cf. People v Cook, supra; People v Crimmins, 36 NY2d 230). There is a view of the evidence which indicates that while defendant was present during the crime, he did not participate in it or share his codefendant’s intent. On this record, it cannot be said that the jury’s verdict was uninfluenced by this evidence. In fact, during its deliberations, the jury requested that the offending witness’ testimony be read back to them. “In the jury’s eyes [this reference] to the defendant’s criminal background may have made ‘the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict’ (United States v Reed, 376 F2d 226, 228)” (People v Mullin, 41 NY2d 475, 480, supra). Therefore, reversal and a new trial are required. Hopkins, J. P., Titone and Lazer, JJ., concur.

Document Info

Citation Numbers: 83 A.D.2d 905

Judges: Thompson

Filed Date: 8/31/1981

Precedential Status: Precedential

Modified Date: 1/12/2022