
    The People of the State of New York, Respondent, v John McCann, Appellant.
    Supreme Court, Appellate Term, First Department,
    October 23, 1985
    APPEARANCES OF COUNSEL
    
      Joel M. Stein for appellant. Robert M. Morgenthau, District Attorney (Norman Barclay and Roña Feinberg of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Judgment rendered June 29, 1984 reversed, on the law, and a new trial ordered.

In this prosecution for driving while intoxicated, defendant moved prior to trial for exclusion of evidence of his prior convictions for driving while intoxicated or impaired (People v Sandoval, 34 NY2d 371). On oral argument of the application, defense counsel represented that defendant would not testify if his credibility would be impeached by use of the prior convictions. Only passing mention was made of the testimony of witnesses, and no mention made of the order in which defendant and his witnesses would testify. At the end of argument, the court ruled, properly in our view, that defendant could not be cross-examined as to the previous criminal convictions.

Before testifying in his own defense, defendant called his business partner as a witness. The witness testified on direct examination that he had been at the office with defendant from 5:00 to 7:30 p.m. on the date in question (Feb. 17, 1983); that each had two small scotch and waters in that period; that they left together and that when defendant drove off, he was sober. The prosecutor was aware that this witness had testified in the same manner on defendant’s behalf in a prior prosecution covered by the trial court’s Sandoval ruling. For the expressed purpose of showing the witness’ bias and lack of credibility, he asked if the witness had testified about an event that occurred in February 1980 in a proceeding in which someone had been charged with driving while impaired. After objection by defense counsel (out of the jury’s presence) that permitting this line of questioning would violate the court’s Sandoval ruling, the court, reasoning that its ruling did not apply to the cross-examination of witnesses, permitted the questioning to continue. When the cross-examination of the witness was resumed, he admitted the similarity of his prior testimony for the defendant in the 1980 prosecution to his present testimony. Defendant was subsequently convicted of the offense charged.

Defendant urges on appeal that an exclusionary ruling under Sandoval applies to the cross-examination of witnesses concerning the defendant’s prior convictions as well as to the defendant himself. We agree. The trial court should not have permitted the prosecutor to accomplish indirectly through cross-examination of a witness what he was precluded from doing directly on cross-examination of the defendant himself— namely, introduce evidence of prior criminal acts tending to convey that the defendant had a propensity to commit the crime for which he was on trial (see, People v Williams, 46 NY2d 799). The cross-examination of defendant’s witness resulted in the disclosure of defendant’s prosecution for a similar offense to the one in question, effectively circumventing in midtrial the intent and purpose of the court’s Sandoval order. Under such circumstances, a new trial is warranted (People v Davis, 63 AD2d 948). In our view, the prejudice inuring to the defendant substantially outweighed the probative worth of the elicitied testimony on the issue of the defense witness’ credibility.

Riccobono, J.

(dissenting). I vote to affirm. In my view, People v Sandoval (34 NY2d 371) does not purport to exclude from cross-examination of a witness, other than the defendant, facts necessary to demonstrate that witness’ bias or lack of credibility, including the incidental reference to the witness’ identical testimony at a prior prosecution of defendant for a similar offense. The purpose of the Sandoval procedure is to permit a defendant to obtain a prospective ruling as to the permissible scope of his cross-examination concerning prior commission of specific criminal or immoral acts, so that he may decide whether to testify in his own defense. Here, the defendant did testify and there was no violation of the trial court’s pretrial Sandoval ruling as to him. As to the cross-examination of the defendant’s witness, the prosecutor was clearly proceeding in good faith; the information sought to be elicited, i.e., that the witness had given virtually identical testimony on defendant’s behalf on another occasion, was directly probative of this witness’ credibility. To the extent that matter unfavorable to the defendant was introduced during the course of legitimate cross-examination, that is a risk which the defense invited when it placed the witness on the stand.

Regarding the charge, I am of the opinion that People v Cruz (48 NY2d 419) imposes no stricter definition of intoxication than that charged by the trial court.

Hughes, J. P., and Sandifer, J., concur; Riccobono, J., dissents in a separate opinion.  