
    The People of the State of New York, Respondent, v. Bernard F. Kass, Appellant.
    Argued June 3, 1969;
    decided July 2, 1969.
    
      Murray Bogatin for appellant.
    I. Defendant was denied a fair trial when the trial court permitted the prosecutor on cross-examination of defendant to ask defendant if he committed a crime which was not charged in the indictment. (People v. Malkin, 250 N. Y. 185; People v. Webster, 139 N. Y. 73; People 
      v. Sorge, 301 N. Y. 198; People v. Alamo, 23 N Y 2d 630; People v. Grutz, 212 N. Y. 72; People v. Molineux, 168 N. Y. 264; People v. Schwartzman, 24 N Y 2d 241; People v. Santiago, 15 N Y 2d 640; People v. Savvides, 1 N Y 2d 554; Napue v. Illinois, 360 U. S. 264.) II. The trial court committed reversible error in permitting the prosecutor to elicit testimony pertaining to the Casale purported bribery and conspiracy crimes which were nonexistent, or for which defendant Kass had already been acquitted. III. Defendant was denied a fair trial when the prosecution failed to make Hoelzer’s original personal activity report available to defendant for use upon cross-examination of Hoelzer. (People v. Rosario, 9 N Y 2d 286.) IV. It was reversible error for the District Attorney in summing up to characterize defendant as a con man and a wheeler and dealer when the evidence did not support such accusations. (People v. Meckler, 13 N Y 2d 168.) V. The trial court’s statements upon sentencing of defendant Kjellman together with statements made at the sentencing of defendant Kass showed sufficient bias and prejudice to constitute reversible error. (Sherk v. Catena, 235 App. Div. 686; People v. Lennon, 206 App. Div. 266.) VI. The trial court committed prejudicial error in permitting the prosecution to amend the indictment at the start of the trial and by denying motions made by defendant at the same time. (People v. Lamm, 292 N. Y. 224.) VII. The People failed to establish a prima facie case as to the conspiracy charge. (People v. Harris, 294 N. Y. 424; People v. Silverman, 281 N. Y. 457.) VIII. The guilt of defendant as to the conspiracy charge was not established beyond a reasonable doubt. IX. The guilt of defendant as to the bribery charge was not established beyond a reasonable doubt. X. The People failed to establish a prima facie case as to the bribery charge.
    
      George J. Aspland, District Attorney (Lawrence J. Bracken of counsel), for respondent.
    I. The evidence established and warranted the jury’s verdict against defendant in that the chronology of events was undisputed and the specifics of these events was a question of fact resolved against defendant. II. The defense had knowledge, from prior representation of defendant in a related trial, regarding the preparation of Hoelzer’s report and notes and examined this witness fully in this regard so as to bring his credibility here particularly to the attention of the jury which nevertheless resolved such questions of fact against defendant. HI. The errors alleged, regarding the trial court’s postconviction remarks and the remarks of the Assistant District Attorney, during trial and in summation and the other errors alleged, were, if errors at all, not prejudicial to defendant, in view of the substance of the evidence against him.
   Jasen, J.

Defendant Kass, an attorney, was convicted of the crimes of bribery and conspiracy after trial by jury. He was sentenced to imprisonment for a term of from 1% to 3 years, and as a result of this conviction was disbarred from the practice of law.

Defendant was named in two indictments returned by a Suffolk County Grand Jury as the result of the undercover investigations of Sergeant Hoelzer of the Suffolk County police into gambling, prostitution, and “ shylocking ” activities. The first indictment, which went to trial, charged defendant Kass and one Casale of conspiracy and bribery of Sergeant Hoelzer to obtain police protection for gambling and other activities planned by the conspirators. Defendant and Casale were tried and acquitted of these charges.

Shortly thereafter, defendant was separately tried on the second indictment which charged him and two others with conspiracy to bribe and bribery of a public officer.

The prosecution’s case at the second trial rested principally upon the testimony of Sergeant Hoelzer. The Sergeant related that defendant agreed to pay him $500 per week for police protection of ‘ ‘ gambling, shylocking, and prostitution at Harve’s Hide-a-Way ”, and stated that defendant had actually paid him the first $500 payment pursuant to the agreement. The defendant admitted many of the events testified to by Sergeant Hoelzer, but denied any wrongdoing.

Defendant argues that the Trial Judge improperly permitted the prosecutor to ask defendant if he had ‘ ‘ misappropriated two diamonds worth about $4,000 from a jeweler in New York City? ” It is well established that a defendant who testifies may be cross-examined concerning any immoral, vicious, or criminal acts which have a bearing on his credibility as a witness. “ The offenses inquired into on cross-examination to impeach credibility need not be similar to the crime charged, and questions are not rendered improper * * * provided they have some basis in fact and are asked in good faith.” (People v. Schwartzman, 24 N Y 2d 241, 244; People v. Alamo, 23 N Y 2d 630.) Here, the inquiry into defendant’s misappropriation of the diamonds is relevant to his credibility as a witness. The question was proper, therefore, if made by the prosecutor in good faith and had some basis in fact.

The prosecutor demonstrated his good faith at trial by stating on the record that he had been informed by the jeweler’s attorney on the previous day that defendant had received the diamonds on consignment, and had failed to return the diamonds when due. The jeweler’s attorney appeared “ very upset” and was fearful that his client ‘ ‘ was not going to get the diamonds back”. The prosecutor also spoke briefly with the jeweler who was sufficiently concerned about recovery of his diamonds to travel from his store in New York City to River-head, Long Island, where the trial was held, a distance of some 80 miles. The jeweler contacted the police in Riverhead concerning the diamonds, and a police lieutenant introduced him to the Assistant District Attorney prosecuting this case. The jeweler admits in his affidavit submitted on defendant’s post-trial motion for a new trial that he spoke with the prosecutor and informed him that defendant held the diamonds on an overdue assignment. Significantly, the jeweler did not inform the prosecutor that defendant had agreed to return the diamonds, but merely related to the prosecutor that he had an appointment to discuss the return of the diamonds with defendant. Under these circumstances, the prosecutor adequately demonstrated his good faith and possessed a sufficient basis for asking the challenged question. (People v. Alamo, supra.)

We conclude, however, that the judgment of conviction should be reversed and a new trial should be ordered because defendant was given retranscribed notes of Sergeant Hoelzer at trial and was misled into believing that he possessed the original notes. The record indicates that Sergeant Hoelzer prepared daily notes concerning his undercover investigation into defendant’s activities. These original notes were given to defendant during his trial on the first indictment. However, it appears that Sergeant Hoelzer destroyed these notes at the conclusion of the first trial.

The instant trial began shortly after the conclusion of the first trial. During cross-examination of Sergeant Hoelzer, defendant requested and received “retránscribed” copies of the original notes. Defendant was entitled to examine the witness’ “prior statements” provided “that the statement relates to the subject matter of the witness ’ testimony and contains nothing that must be kept confidential ’ ”. (People v. Malinsky, 15 N Y 2d 86, 90; People v. Rosario, 9 N Y 2d 286.) Indeed, defendant received the existing notes which pertained to the subject matter of the witness’ testimony. However, the thrust of defendant’s argument is that he learned for the first time after trial that the original notes had been destroyed in the one week intervening between the two trials, and that he had been given a retranscribed copy of the notes at trial and had been misled into believing that he possessed the original notes. The record supports this assertion. It may well be that the retranscribed notes are substantially similar to the original notes since defendant possessed the original notes at the first trial and did not recognize at the second that he possessed only the retranscribed copies. Defendant was represented by the same attorney at both trials, and cannot claim to be ignorant of the contents of the disputed notes. However, a new trial is warranted so that defendant may inquire into the circumstances of the destruction of the original notes to test the credibility of Sergeant Hoelzer who was the principal prosecution witness. At the new trial, the jury should be instructed that Sergeant Hoelzer’s testimony should be weighed in light of the fact that the original notes have been destroyed and are, therefore, unavailable to the defendant on cross-examination.

Accordingly, the judgment of conviction should be reversed, and a new trial ordered.

Burke, J. (concurring).

The defendant’s right to effective cross-examination of the prosecution’s chief witness was, of course, clearly prejudiced and that prejudice requires a reversal and a new trial. In addition, another gross error was committed upon the trial which should not be disregarded. On cross-examination, the first question asked of Kass was “is it a fact that right now you have misappropriated two diamonds worth about $4,000 from a jeweler in New York City? ” Defense counsel’s initial objection was withdrawn but it was reasserted when questioning on this matter continued. In a colloquy with the court out of the presence of the jury, the prosecutor protested his ‘ ‘ good faith ’ ’ in asking the question and told the court that an attorney for the jeweler had called him to say that Kass had the diamonds pursuant to a memorandum giving him seven days to examine them and make a choice and that they were, at the time of the call, overdue. The prosecutor further told the court that ‘ ‘ the jeweler came all the way out yesterday and I didn’t really get a chance to speak to him except for just a —just a very brief moment, and he went with Mr. Kass to see if he could get his diamonds back. * * * I don’t know what arrangements happened to happen yesterday afternoon with Mr. Kass.” The court reserved decision on the defendant’s motions for a mistrial and to strike the questions but later denied them outside the presence of the jury. The trial court committed reversible error in permitting the prosecution to ask defendant Kass, in the first question on cross-examination, whether “ right now you have misappropriated two diamonds worth about $4,000 from a jeweler in New York City? ” and in denying defendant’s motions for a mistrial and to strike the questions. Once again, we are called upon to review the permissible lengths of cross-examination of a criminal defendant as to “ specific acts of misconduct.” (People v. Alamo, 23 N Y 2d 630, 636). The ground rules are by now clear: the prosecution is permitted to cross-examine the defendant as to prior acts of misconduct in an effort to affect his credibility, provided that the prosecutor does so in “ good faith ” and had a “ reasonable basis in fact ” for inquiring into particular “misconduct ” (People v. Alamo, 23 N Y 2d 630, supra; People v. Sorge, 301 N. Y. 198, 200). Clearly, however, the prosecution’s mere protestation of “ good faith” is insufficient when the objective facts indicate that, as a reasonable man, and particularly, as an officer of the court, there is no reasonable basis for implying, by means of a question, that the defendant has, in fact, committed the act about which he is being questioned. In this case, the prosecutor himself admitted that he had spoken to the jeweler, who had given the stones to the defendant on a seven-day examination basis, for only ‘ ‘ a very brief moment ’ ’, and that he did not know whether or if the defendant and the jeweler had made arrangements for the return of the diamonds. By his own admission, all the prosecutor knew was that the defendant had the diamonds on a “ consignment ” from the jeweler and that they were apparently overdue in being returned. Nonetheless, the question put to the defendant, impliedly at least, contained the conclusion that the diamonds had been “ misappropriated.” Inquiry of the jeweler would have indicated that the jeweler wanted only to speak to Kass about returning the diamonds and that the jeweler himself did not consider that the stones were anything but late in being returned. The jeweler’s affidavit on defendant’s posttrial motion for a new trial indicates that the jeweler spoke to the prosecutor who was trying the case on the morning of April 18 and told him specifically that he had an appointment for the following day with Kass to have the diamonds returned (and they were, in fact, returned the following day). Despite this, on that same morning of April 18, the challenged question was asked of the defendant. In these circumstances there was neither the required ‘ ‘ good faith ’ ’ nor the required reasonable basis in fact ” for the question asked and its import was clearly prejudicial to the defendant, whose credibility was crucial to his defense.

Judges Scileppi, Bergan and Breitel concur with Judge Jasen; Judge Burke concurs in a separate opinion in which Chief Judge Fuld concurs.

Judgment reversed and a new trial ordered.  