Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 23, 2013
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered April 24, 2009, convicting defendant, after a jury trial, of promoting prison contraband in the first degree, and sentencing her to a prison term of one to three years, reversed, as a matter of discretion in the interest of justice, and the matter remanded for further proceedings.
This case involves allegations that defendant, a former correction officer, used a shoebox containing sneakers to smuggle a knife into the Manhattan Detention Complex (MDC) for the purpose of giving the contraband to her boyfriend, James Wright, an inmate.
During cross-examination of defendant, the prosecutor introduced irrelevant and inflammatory considerations that had no legitimate bearing on defendant's credibility or any other issue in the case. The prejudicial effect of these lines of questioning was compounded by the trial court's instruction that the jury could consider that evidence in evaluating defendant's credibility. Although defendant's objections were only partially preserved, given the gravity of the errors in this case and their undeniably prejudicial effect, we reach these issues in the exercise of our interest of justice jurisdiction (see CPL 470.15(3)(c); People v Council, 52 AD3d 297 [1st Dept 2008], lv dismissed 10 NY3d 957 ; People v Engstrom, 86 AD3d 580 [2d Dept 2011]).
The criminal history of defendant's boyfriend was irrelevant to whether defendant "knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility" (Penal Law § 205.25). The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served "no purpose but to suggest that defendant was associated with a disreputable person" (People v Ortiz, 69 AD3d 490, 491 [1st Dept 2010] [error for prosecutor to refer on cross-examination to defendant's non-testifying girlfriend's criminal history and to introduce her mugshot, notwithstanding meritless argument that girlfriend's recent arrest tended to support a missing witness inference]; People v Shivers, 63 AD2d 708, 709 [2d Dept 1978] [reversing conviction after defendant, who had no criminal record, was cross-examined about her husband's criminal record, noting "[t]he tactic employed by the prosecutor was grossly prejudicial to defendant's right to a fair trial and should not have been allowed . . . he was not entitled to deliberately attempt to associate defendant with her husband's criminal record"]).
The People's putative rationales for putting Wright's criminal history before the jury do not withstand scrutiny. Since the knife was inherently dangerous, Wright's criminal history was not necessary to establish that it was "dangerous contraband" within the meaning of the statute. Although the trial court recognized that the identity of the recipient was irrelevant to the determination of whether defendant knowingly introduced a knife into the system, precluding the introduction of such evidence on the People's direct case, the court later abandoned this sound position. The court ruled, prior to defendant's cross, that the People could "go into her knowledge of [Wright's] criminal record or anything of that nature," and inexplicably instructed the jury that it could use Wright's criminal history in assessing defendant's credibility, essentially allowing the jury to dismiss defendant's testimony based on her poor judgment in romantic partners.
Cross-examination of defendant concerning her knowledge of Wright's gang membership also served no purpose but to suggest that she was affiliated with a disreputable person. Cross-examination of a defendant about his putative gang membership, absent a connection between the membership and the crime, is prohibited; a fortiori, cross-examination of a defendant about a friend's gang membership is even less relevant.
Similarly, periods of unemployment during which defendant was on public assistance were irrelevant and had no bearing on her credibility. Although the trial court found that the evidence of defendant's receipt of public assistance served to give the jury a complete picture of her work history, it would have sufficed for the prosecutor to have elicited that defendant had been unemployed for brief periods. It was not necessary to ask questions about going "to the welfare office" that might serve to prejudice some jurors. Being on public assistance cannot constitute a "prior bad act" for purposes of cross-examination, and the matter was not relevant to any of the issues in the case. Since there was no evidence that defendant fraudulently procured benefits or misrepresented her eligibility, it was error for the prosecutor to attempt to impeach her through questioning about visiting the welfare office. The court compounded this error by instructing the jury that it could consider defendant's receipt of public assistance in evaluating her credibility.
The trial court also erred in permitting the prosecutor to ask defendant, over counsel's objection, to retrieve the phone number of her boyfriend's mother from her cell phone's memory during cross-examination. The demand left the jury with the impression that defendant had a duty to provide the number, wrongfully suggesting that defendant had impeded the prosecutor's case by failing to furnish the number. Since defendant had no duty to provide the number, this line of questioning was patently unfair and constituted improper burden shifting under the circumstances.
The cumulative effect of these errors cannot be dismissed as harmless. The combined effects of these errors served to deprive defendant of her fundamental right to a fair trial and require reversal of the judgment.
In light of our holding, it is unnecessary for us to reach defendant's further contention as to whether the court properly exercised its discretion in ...