UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 10, 1979
DAVID BARNES, PETITIONER-APPELLANT,
EVERETT W. JONES, SUPERINTENDENT, AND LOUIS J. LEFKOWITZ, RESPONDENTS-APPELLEES.
Appeal from an order of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, denying a petition for a writ of habeas corpus.
Present: Hon. J. Joseph Smith, Hon. James L. Oakes, Hon. Ellsworth A. Van Graafeiland, Circuit Judges.
On appeal petitioner argues that he was denied a fair trial on the basis of cross-examination by the prosecutor and questioning by the trial court relative to his previous convictions and the circumstances thereof. However, under N.Y. Crim. Proc. Law (McKinney) § 60.40 and People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974),
a balance must... 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.
34 N.Y.2d at 375, 357 N.Y.S.2d at 854. Under this test appellant's prior convictions for crimes involving violence were admissible in the trial judge's discretion in this case, which involved charges of robbery, assault, and grand larceny. People v. Sandoval, supra. Appellant also suggests that even if the convictions were admissible, the prosecutor and the court should not have inquired into the underlying circumstances. However, the initial inquiry as to each of the first two convictions resulted in some equivocation on the part of the appellant. The further inquiry was therefore permissible, as People v. Sandoval, supra, held. 34 N.Y.2d at 373, 357 N.Y.S.2d at 852. In respect to the appellant's third conviction, since appellant gave a clear and unequivocal response, the court sustained any objections to further inquiries. We do not believe that the application of the New York rule of law set forth in the statute and in People v. Sandoval, supra, to the facts of this case amounts to a deprivation of a fair trial and hence of due process.
Appellant's only other point argued on appeal is that the trial court denied his right to confrontation when it refused to permit appellant's lawyer to ask the complaining witness Butts on cross-examination whether he had ever had any psychiatric treatment. The foundation for the question was that evidently the witness had once experienced a blackout on the street. We do not agree that the trial court abused its discretion in refusing to allow impeachment of a witness in this form, especially because the alleged incident had little probative value with respect to the time period about which the witness was attempting to testify. In any event, the trial court's decision certainly did not rise to the level of a constitutional deprivation.
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