
    The People of the State of New York, Respondent, v Harold Mayrant, Appellant.
    Argued October 14, 1977;
    decided December 14, 1977
    
      POINTS OF COUNSEL
    
      Rowan Peter Kirscheimer and William E. Hellerstein for appellant.
    The trial court’s decision to permit the People to cross-examine appellant on previous convictions because they demonstrated appellant’s propensity to commit the crime for which he was on trial, was clearly erroneous. (People v Sandoval, 34 NY2d 371; People v Webster, 139 NY 73; People v Caviness, 38 NY2d 227.)
    
      Robert M. Morgenthau, District Attorney (Jane Deutscher and Peter L. Zimroth of counsel), for respondent.
    I. Defendant’s guilt was established beyond a reasonable doubt. II. The trial court properly permitted the cross-examination of defendant as to his prior criminal acts. (People v Sandoval, 34 NY2d 371; People v Schwartzman, 24 NY2d 241; People v Caviness, 38 NY2d 227; People v Duffy, 36 NY2d 258; People v Crimmins, 36 NY2d 230.).
   OPINION OF THE COURT

Fuchsberg, J.

Harold Mayrant has been convicted of assault in the second degree in connection with his stabbing of a friend, Alexander Woods. On appeal to us from an Appellate Division order of affirmance, the defendant complains that the Trial Judge, in denying his Sandoval (People v Sandoval, 34 NY2d 371) application to preclude his cross-examination as to earlier convictions, applied an erroneous legal yardstick.

Specifically, prior to trial defendant sought an informational ruling as to whether his two prior convictions would be permitted to be used to impeach his credibility if he took the stand in his own defense. The motion was denied with leave to renew at the close of the People’s case. At that time, it was denied again, the Trial Judge giving the following reason: "THE COURT: The Court, as I stated before, has heard extensive arguments in this case as to defendant’s prior propensities for committing violent acts, [which] will go to the heart of the defendant’s testimony should he take the stand as to who was or who was not the aggressor in the instant proceeding. And for that reason this Court will permit, if [he] take[s] the stand, [the] defendant to be cross-examined as to whether he did in the past, rather if he was in the past convicted of acts of violence and so your motion is denied.”

As authorized by this ruling, during defendant’s testimony the prosecutor developed the circumstances underlying each conviction. In one, defendant, who had fired several shots at a robber, had eventually pleaded guilty to possession of a weapon. In the second, which arose out of an altercation in which the defendant, presumably to ward off an attack with a knife, struck a man in the head with a golf club, he had pleaded guilty to harassment.

The applicable rules of law are uncomplicated. A defendant who exercises his constitutional right to testify may be cross-examined in good faith concerning his prior immoral, vicious or criminal conduct only if it has a bearing on his credibility as a witness (People v Dickman, 42 NY2d 294, 297; People v Wright, 41 NY2d 172, 175; People v Duffy, 36 NY2d 258, 262, cert den 423 US 861). It may not be resorted to simply to prove a propensity to commit the crime for which he is on trial (People v Jackson, 39 NY2d 64, 67; People v Duffy, supra, p 262; People v Schwartzman, 24 NY2d 241, 247, cert den 396 US 846; People v Russell, 266 NY 147, 152). For "[o]ne may not be convicted of one crime * * * because he committed another” (People v Goldstein, 295 NY 61, 64).

This principle is "rooted in practical policy, justice and fairness” rather than in logic (People v Richardson, 222 NY 103, 109-110; Richardson, Evidence [10th ed], § 170, p 139). While past events often may be a harbinger of future conduct, in the prosecution of criminal cases we are less concerned with such a generalization than with the requirement that each case be determined on its individual merits. As Chief Judge Cardozo reminded us, "There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril of the innocent if character is accepted as probative of crime” (People v Zachowitz, 254 NY 192, 198; see, also, People v Cook, 42 NY2d 204, 208; 1 Wigmore, Evidence [3d ed], § 57, p 456).

These competing considerations require that, upon an application to limit the use of prior convictions of a defendant on his cross-examination, "a balance * * * be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf’ (People v Sandoval, 34 NY2d 371, 375, supra). The determination of the permissible scope of cross-examination ostensibly bearing on the credibility of a witness thus rests in the sound discretion of the Trial Judge (People v Greer, 42 NY2d 170, 176; People v Duffy, 36 NY2d 258, 262-263, supra; People v Schwartzman, 24 NY2d 241, 244, supra; People v Sorge, 301 NY 198, 202; La Beau v People, 34 NY 223, 230).

The difficulty with the Trial Judge’s determination here, however, is that, from the record before us, its language being accorded its ordinary meaning, we are compelled to conclude that, in denying defendant’s application, the court failed to consider both of the available alternatives (cf. People v Caviness, 38 NY2d 227, 233). To the contrary, the Judge’s words suggest that he took into account only "the defendant’s prior propensities for committing violent acts”.

Nor may the error be treated as harmless. That an altercation took place is not disputed; both the defendant and the victim were hospitalized and arrested. The only serious issue was justification. The defendant was his only eyewitness. Arrayed against that testimony were only the victim and his wife. Under these circumstances, it is impossible to say whether the Trial Judge, had he weighed all the considerations we have articulated, would not have limited the cross-examination as to prior criminal acts and whether, if he had done so, the scales would have been tipped for instead of against the defendant (cf. People v Dickman, 42 NY2d 294, supra; People v Perez, 36 NY2d 848).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Gabrielli, J. (dissenting).

I agree with the majority that the trial court erred in the standard used in deciding to allow the defendant to be cross-examined with respect to his prior convictions (see People v Sandoval, 34 NY2d 371, 375). Nonetheless, I would affirm the order appealed from on the ground that this nonconstitutional error was harmless under the facts of this case.

The test for determining whether a particular nonconstitutional error may be considered harmless in a given case is twofold: first, there must be overwhelming evidence of guilt; and, second, the court must be able to find that there does not exist a significant probability that the defendant would have been acquitted absent the error (People v Crimmins, 36 NY2d 230, 241-242). The case before us certainly falls within the bounds of this test. Understandably, the defendant has not challenged the sufficiency of the evidence against him, as indeed would be an impossible task. Without even the evidence produced by the prosecution, there is an abundance of evidence of guilt from the testimony of the defendant himself.

Defendant candidly admitted the act charged, and based his defense on a claim of justification. According to defendant’s testimony, he and Alexander Woods began their quarrel over the ownership of a bicycle in defendant’s apartment. Woods then took the bicycle and returned to his own home. Defendant followed him and entered the Woods’ dwelling where, according to defendant, Woods punched him. Defendant immediately drew his knife and stabbed Woods, leading to an escalation of the altercation including three serious stab wounds inflicted on Woods. The testimony of Woods and his wife clearly demonstrated that the defendant was the aggressor, but need not here concern us, in view of defendant’s own testimony.

Even accepting completely the defendant’s version of the incident, it is abundantly clear that the defendant’s admitted use of deadly physical force cannot be characterized as justifiable under any view of the facts (see Penal Law, § 35.15). Defendant admits that it was he who first drew a weapon and began to stab Woods. This assault upon an apparently weaponless victim took place in the victim’s own home, in response to at most a few curses and a single punch. It appears clear that under these circumstances the defendant’s response was so unreasonably out of proportion to the attack as to negate any claim of justification, as a matter of law. The defendant has completely and effectively defeated his claimed justification by his own testimony.

In view of the overwhelming evidence of guilt, and the absence of any substantial probability that the error influenced the jury’s verdict in light of the defendant’s own inculpatory testimony, I would hold the error harmless (see People v Cook, 42 NY2d 204, 208-209; People v Perez, 36 NY2d 848), and would affirm the order appealed from.

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

Order reversed, etc.  