
    The People of the State of New York, Respondent, v Charles S. Dickman, Appellant.
    Argued June 9, 1977;
    decided July 14, 1977
    
      Charles B. Draper for appellant.
    
      
      Aldo L. DiFlorio, District Attorney (Jon Louis Wilson of counsel), for respondent.
   Jones, J.

We hold that defendant is entitled to a new trial because of errors committed by the trial court.

On the complaint of an evidently distressed young woman, defendant was arrested for reckless driving. The complainant testified that early in the afternoon of Friday, May 30, 1975 as she was driving home from work she passed defendant in his car, whereupon he proceeded to harass her by "several times driving up behind her at a high rate of speed and then slowing abruptly just short of her car. She pulled over to the side of the road and defendant passed her, but promptly slowed down to a near stop in front of her car. The same thing happened a second time. On her way to the State Police Barracks to report defendant’s conduct complainant encountered a State trooper to whom she related what had occurred.

Defendant was convicted after a jury trial at which the only witnesses were the complainant and defendant. Defense counsel filed an affidavit of errors with Niagara County Court, seeking a reversal of the, conviction and a dismissal of the information. In response the District Attorney wrote the County Judge: "I have reviewed the motion of Charles Draper, Attorney for the above, and after researching the matter I feel that in the interest of justice and with this in mind that the motion should be granted. Therefore, there will be no answering affidavit forthcoming.” County Court affirmed the conviction and leave to appeal was granted by a member of our court.

Defendant had made a pretrial motion for an informational ruling as to the prosecution’s entitlement to use prior convictions to impeach his credibility should he take the witness stand. The hearing court had ruled that a 1974 conviction of the crime of reckless driving and two 1975 convictions of traffic violations for an improper turn and unsafe driving could be so employed. When defendant took the stand on his direct examination, before proceeding to testify with reference to the charge against him, he disclosed all three convictions.

With full recognition that the trial court is vested with authority, to be exercised in a sound discretion, to determine the permissible scope of cross-examination in each particular case, we note, nevertheless, that the exercise of this discretion is not beyond the reach of appellate review. While the issue concededly is troublesome, we conclude that there was an abuse of discretion in this instance.

It is not suggested that cross-examination of this defendant with regard to his prior conviction for reckless driving would have been admissible other than on the issue of credibility. Nor did the 1974 conviction come within any of the branches of the decision in People v Molineux (168 NY 264). As to cross-examination to impeach credibility it may be verbalized that the prior conviction demonstrated a disposition "to further self-interest at the expense of society or in derogation of the interests of others”, and thus that it was relevant on the question of defendant’s credibility. Evaluation in that perspective, where the cross-examination was accompanied with appropriate limiting instructions, might be acceptable had the charge on which defendant was being tried not been the same charge for which he had previously been convicted. The inescapable reality in this circumstance is that, whatever the clarity and vigor of any restrictive instructions, there was a very great, and to us unacceptable, risk that the jury might have considered the conviction, just two years before, as demonstrating more persuasively that defendant was disposed to drive recklessly, than that he might be disposed to lie on the witness stand. "[C]ross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility.” (People v Sandoval, 34 NY2d 371, 377.) To be weighed as well here is the fact that in this case defendant was the only available source of the material testimony in support of his defense (id., p 378). If he were to have been kept off the witness stand by the court’s ruling the validity of the fact-finding process would have been significantly impaired.

We agree with the County Court, too, that it was error, as respondent candidly concedes and as the dissent agrees, to have ruled that the prosecution might inquire as to the traffic violations (Vehicle and Traffic Law, § 155; People v Sandoval, 34 NY2d 371, 377, supra).

We note further that it was error over timely objection to have allowed cross-examination as to defendant’s visits to taverns other than on the day of the offense with which he was charged.

The critical issue in this case, on our analysis, is whether in view of the strong and appealing nature of the prosecution’s proof these errors can be said to have been harmless. There was at least "a significant probability, rather than only a rational possibility * * * that the jury would have acquitted the defendant had it not been for the * * * errors which occurred”. (People v Crimmins, 36 NY2d 230, 242.) The jury’s choice was between the complainant’s version of the events and that of defendant; credibility was critical and proof that defendant had otherwise been shown to be an irresponsible driver could be expected quite naturally to be accorded significant weight. We conclude that these errors, at least in cumulative impact, were not harmless.

We have examined appellant’s other contentions and are of the opinion either that they are without merit or that the errors claimed were not preserved for appellate review.

Accordingly, the order of County Court, Niagara County, should be reversed, defendant’s conviction set aside, and a new trial ordered.

Gabrielli, J. (dissenting).

The defendant’s conviction for the crime of reckless driving should be sustained. The testimony at trial revealed, and the jury implicitly found, that the defendant harassed the complainant with his automobile while she was driving north on Route 78 in Niagara County by continually and suddenly speeding up and then abruptly stopping directly in the front and also to the rear of complainant’s automobile. A State trooper whom the complainant was finally fortunate enough to encounter, described her condition as "hysterical” as she related the incident to him. Both the defendant and complainant testified that they had never before met and that complainant had done nothing to provoke the defendant in the operation of his automobile in such an erratic manner. The defendant admitted stopping at two taverns and having a drink at each before the incident occurred.

It is a firmly established maxim that "The nature and extend of cross-examination is subject to the sound discretion of the Trial Judge” (People v Schwartzman, 24 NY2d 241, 244; People v Sandoval, 34 NY2d 371, 375; People v Sorge, 301 NY 198). This is particularly true with respect to impeaching a defendant witness by the use of prior convictions. Thus, in People v Sandoval (supra), we provided that the Trial Judge may render a threshold ruling with respect to the admissibility of prior convictions to impeach the defendant’s credibility. In this case, I believe the Trial Judge, in exercising his authority to make such a preliminary determination, may properly have concluded that defendant’s prior conviction for reckless driving, less than two years before the instant charge, demonstrated his disposition "to further self-interest at the expense of society or in derogation of the interests of others” and thus was relevant to his credibility as we stated in both People v Sandoval (supra, p 377) and People v Duffy (36 NY2d 258, 262). Operating a motor vehicle in a reckless manner, dangerous to both pedestrians and motorists using the highways, reveals a desire to disregard the interests and safety of other members of society. As we held in Sandoval (supra, p 377), such a "demonstrated determination * * * goes to the heart of honesty and integrity”. I would therefore conclude that the Trial Judge’s determination to permit introduction of the defendant’s prior conviction for reckless driving should not be disturbed and, consequently, the fact that defense counsel elected to have the defendant reveal this conviction on direct examination was not reversible error.

In view of the admissibility of the conviction of the crime of reckless driving, the conceded error in holding admissible defendant’s prior convictions for two minor traffic infractions was harmless error. It strains credulity to argue that there was a "significant probability” that the defendant would have been acquitted of the reckless driving charge if these convictions for making an improper right turn and unsafe backing were not revealed to the jury on direct examination.

Futhermore, I do not find error in the questioning of the defendant with respect to his visits to a local tavern on the day of the incident since the fact that defendant imbibed alcoholic beverages is certainly relevant in this case to his state of mind and, in particular, the element of recklessness. Futhermore, evidence that the defendant was under the influence of alcohol at the time of the incident giving rise to the reckless driving charge was properly admissible to impeach his testimony with regard to what occurred (People v Webster, 139 NY 73, 86-87; Richardson, Evidence [10th ed], § 507, pp 497-498; 3 Wigmore, Evidence [3d ed], § 933, p 480). Any alleged error in questioning the defendant with respect to his habit or custom of frequenting certain taverns in the area was not preserved for appellate review since defense counsel objected to this line of questioning only after the prosecutor had already elicited from the defendant the response that he frequented a particular tavern every day. Only when the prosecutor asked the defendant whether he frequented other taverns did defense counsel object. In sum, I find that no reversible error occurred in the course of defendant’s trial and would therefore affirm the reckless driving conviction.

Judges Wachtler, Fuchsberg and Cooke concur with Judge Jones; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Chief Judge Breitel and Judge Jasen concur.

Order reversed, etc.  