
    The People of the State of New York, Respondent, v Alfred Michael Coleman, Appellant.
    Argued March 25, 1982;
    decided June 15, 1982
    
      POINTS OF COUNSEL
    
      David L. Glass for appellant.
    I. The court below erred in refusing to consider the merits of defendant’s objection to the constitutionality of a search of his property. (People v Mills, 18 AD2d 960; Miranda v Arizona, 384 US 436; People v Tutt, 38 NY2d 1011; People v De Bour, 40 NY2d 210; People v De Renzzio, 19 NY2d 45; United States ex rel. Vanderhorst v La Vallee, 417 F2d 411, cert den sub nom. McMann v Vanderhorst, 397 US 925; Volpicelli v Salamack, 447 F Supp, 578 F2d 1372; United States ex rel. Irons v Montanye, 520 F2d 646; United States v Cuomo, 479 F2d 688, cert den sub nom. Rizzo v United States, 414 US 1002; People v Danziger, 41 NY2d 1092.) II. The search of defendant’s property violated Fourth Amendment prohibitions against unreasonable searches; therefore, items seized and secondary evidence obtained should not have been admitted into evidence at trial. (United States v Jeffers, 342 US 48; Schneckloth v Bustamonte, 412 US 218; Bumper v North Carolina, 391 US 543; People v Kuhn, 33 NY2d 203; Katz v United States, 389 US 347; Coolidge v New Hampshire, 403 US 443; Chimel v California, 395 US 752; People v Abruzzi, 52 AD2d 499, 42 NY2d 813; Harris v United States, 390 US 234; People v Armour, 46 AD2d 872.) III. The court below erred in holding that the trial court’s erroneous admission of testimony regarding certain publications was harmless error. (People v Sorge, 301 NY 198; People v Jones, 62 AD2d 356; Kingsley Pictures Corp. v Regents, 360 US 684; Henley v Wise, 303 F Supp 62; People v Crimmins, 36 NY2d 230.)
    
      Patrick Henry, District Attorney (Charles M. Newell of counsel), for respondent.
    I. The court below correctly concluded that appellant failed to preserve the issue of the warrantless entry onto the railroad siding for review. (People v Tutt, 38 NY2d 1011; People v Danziger, 41 NY2d 1092; People v Ross, 21 NY2d 258; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v McLucas, 15 NY2d 167; Katz v United States, 389 US 347; Sibron v New York, 392 US 40; People v Perel, 34 NY2d 462; Coolidge u New Hampshire, 403 US 443; People v Farenga, 42 NY2d 1092.) II. The scope of the cross-examination of appellant was properly within the discretion of the trial court and, alternatively, any error was harmless. (People v Sorge, 301 NY 198; People v Mackey, 49 NY2d 274; People v Duffy, 36 NY2d 258; People v Malkin, 250 NY 185; People v Capuano, 15 AD2d 400; People v Fritz, 279 App Div 1020; Gitlow v New York, 268 US 652; East Meadow Community Concert Assn. v Board of Educ., 18 NY2d 129, 26 AD2d 819, 19 NY2d 605; Thompson v Wallin, 301 NY 476, affd sub nom. Adler v Board of Educ., 342 US 485; Fox v Washington, 236 US 273.)
   OPINION OF THE COURT

Jones, J.

It was not error for the trial court to allow the prosecutor to impeach defendant’s credibility as a witness by use of pamphlets the publication of which was attributable to defendant and which advocated the evasion of all sales taxes and the cheating of the telephone company.

Defendant appeals from a conviction, on a jury verdict, of the misdemeanor of criminal possession of stolen property (Penal Law, § 165.50). The conviction arose from defendant’s alleged possession of a recently stolen Hobart generator found coupled to an antique railway car owned and in the process of being restored by a corporation of which defendant was the principal shareholder. When discovered by the police, the generator had just recently been painted red and its identification plate removed. A contemporaneous search of the railway car (now asserted to have been unauthorized) revealed a can of red paint and the missing identification plate.

On trial, defendant claimed no involvement in or knowledge of the theft of the generator. He testified that it had merely “turned up” one day, apparently, he then assumed, through the efforts of an underling who was aware of defendant’s need for such a machine. In an effort to impeach his credibility, the People cross-examined defendant about and subsequently introduced in evidence two pamphlets published three years earlier by a corporation of which defendant had been an incorporator and was administrative officer, a director and a shareholder. Counsel for defendant raised timely objections, both on the ground of remoteness and on the ground that publication of the pamphlets was not an immoral, vicious, or criminal act and therefore their use for impeachment purposes was impermissible. The judgment of conviction was unanimously affirmed at the Appellate Division (81 AD2d 869).

It was not error here to have permitted the prosecutor on cross-examination to seek to impeach defendant’s credibility as a witness by use of the two pamphlets. The pamphlets in question contained advice and advocacy responsive to their titles, “End Paying Sales Taxes Forever For Everything You Buy” and “How to Beat the Telephone System”. The latter publication, for instance, offered detailed instructions as to how to cheat the telephone company by the use of slugs and fictitious names and suggested several means to frustrate collection of telephone bills. Defendant conceded that he had published the pamphlets through his corporation. That the pamphlets quoted from the writings of other authors is immaterial; there was no suggestion or contention that defendant was not fully aware of the contents of the pamphlets in advance of their publication.

The determination of what evidence may be introduced for purposes of impeachment lies within the sound discretion of the trial court. Notwithstanding that the proof may be said to fall outside the conventional category of immoral, vicious or criminal acts, where, as here, the evidence offered by the People on cross-examination of the defendant “significantly revealed a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand” (People v Sandoval, 34 NY2d 371, 377). By way of analogy it may be suggested that summary rejection would greet any assertion that examining counsel could not use for impeachment purposes writings, properly attributed to the witness, which advocated perjury on the witness stand (concededly more exaggerated in degree but similar in kind to the advocacy in the pamphlets in this case). So here, it was not error in the circumstances of this case for the trial court to conclude that the evidence introduced was both' relevant and material to the credibility, veracity and honesty of defendant.

The trial court carefully instructed the jury both as to the necessity for a preliminary finding of attribution of the pamphlets to defendant and then as to the restricted purpose for which the evidence could be considered: “[I]f you in fact do find that this conduct is attributable to the defendant, it cannot be considered by you in determining whether the defendant has committed the crime he has been accused of and is being tried before you. It may, however, be considered by you in determining whether his testimony or any part is credible or not. You cannot consider it for any other purpose.”

Defendant also contends that the physical evidence introduced at his trial (the Hobart generator, the can of red paint and the identification plate) was discovered and seized by the police during a warrantless entry on and search of the real property used and occupied by him in connection with his hobby of restoring antique railway cars and should accordingly have been suppressed. Inasmuch, however, as defendant failed to raise this contention on his pretrial motion to suppress (which was based solely on the lack of authority of the individual who granted the police permission to enter the railway car), as the Appellate Division observed, the issue has not been preserved for appellate review (cf. People v Danziger, 41 NY2d 1092).

For the reasons stated, the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(concurring). Although I concur with the majority’s result in this case, I cannot agree that it was proper to permit the introduction of the pamphlets to impeach the witness.

In People v Sandoval (34 NY2d 371, 373), this court held that a defendant may be impeached by referring to his or her “prior specific criminal, vicious and immoral acts”. While this is stated in the disjunctive elsewhere in that opinion, it has generally been applied by admitting evidence of only criminal acts.

Under today’s decision, however, this situation will no longer obtain. The State is usurped of its power to define through the Penal Law what conduct evidences the improper placing of one’s own interest before that of society. Instead, a single Judge, according to his or her predilections, is to determine in the exercise of his or her discretion what acts are improper and thus may be raised for impeachment, regardless of whether they are criminal or vicious or immoral. Under this standard, the business owner or manager who is not meticulous in maintaining the account books and unintentionally writes a few checks with insufficient funds may be impeached by those acts. So, too, would the individual who ventures onto city streets without a face mask while ill with influenza. The editors of our State’s large publishing houses should beware lest they become subject to impeachment by reason of publishing political works unsavory to some Trial Judge.

In short, there is no justification for a noncriminal act that is not itself vicious or immoral to be admissible for impeachment purposes. In any event, even if noncriminal publication could be considered for impeachment purposes, neither the fact of publication nor the material published should be admitted unless each is relevant to the issue of credibility. At a minimum, there should be evidence showing that the witness has adopted the views stated. There was no such evidence here. The only evidence on the record that might attribute the pamphlets’ contents to the defendant was his admission that his advertising copywriter had praised the pamphlets’ contents. Under the majority’s reasoning, a publisher will be wise in the future to affirmatively express disagreement with the substance of his or her publications.

There being nothing immoral, vicious, or criminal here about the publication of the pamphlets nor any proof that defendant adopted the statements therein, they should not have been admitted for impeachment. In light of the overwhelming evidence of defendant’s guilt, however, the error should be considered harmless. I therefore concur in affirming the order of the Appellate Division.

Judges Jasen, Gabrielli and Meyer concur with Judge Jones; Chief Judge Cooke concurs in a separate opinion in which Judges Wachtler and Fuchsberg concur.

Order affirmed. 
      
       We have no occasion to consider the argument defendant now advances that the use of these pamphlets for impeachment purposes somehow violated his rights under the First Amendment to the Federal Constitution. This issue, not having been raised on trial, has not been preserved for appellate review, and we accordingly express no opinion with respect to its merit (cf. People v Liccione, 50 NY2d 850). Nor is this writing to be interpreted to suggest approval of any of the hypothetical impeachments envisioned in the concurring opinion. We address only the narrow issue presented in this case.
     
      
       There is no occasion here to discuss the First Amendment implications of the majority’s holding, inasmuch as defendant did not object on that ground.
     