Opinion
December 15, 1970
Judgment, Supreme Court, New York County, rendered on November 24, 1969, convicting defendant after a jury trial of the crime of perjury in the first degree (three counts) and sentencing him on each count to State prison for a term of five years, the sentences to run concurrently, unanimously reversed, on the law and in the interests of justice, and a new trial is ordered. We find that the evidence as presented was sufficient to justify the jury's verdict. However, the record considered in its entirety shows that the trial was permeated with prejudicial matter so as to deprive the defendant of a fair trial. While we need not consider each and every claim of error raised by appellant, we note the following: The court erroneously limited the defendant in his cross-examination of the People's main witness, refusing to allow the defendant to attack the witness' credibility except insofar as it related to questioning him about prior convictions. Of course, the witness was subject to interrogation concerning any immoral, vicious or criminal act which may affect his character and show him to be unworthy of belief. ( People v. Sorge, 301 N.Y. 198; People v. Webster, 139 N.Y. 73.) In the circumstances of this case, considering the crucial importance of this witness and his relationship to defendant, the failure to allow broader scope on matters affecting his credibility must be considered prejudicial. In addition, various statements were made during the course of the trial which could only have the effect of creating a hostile atmosphere. Such statements were in reference to the Senate Rackets Investigation Committee and the "Vito Genovese family". These statements were entirely irrelevant to the issues before the jury and considering the nature of this case, were highly inflammatory. We therefore conclude that the cumulative effect of the various matters throughout the trial require a reversal of the judgment of conviction and a remand for a new trial. However, we must add that in considering the entire record we do conclude that even if we were not to reverse we would reduce the sentence. The defendant is over 70 years of age and apparently in bad health. The record does not indicate that he has any prior convictions. Considering all the factors herein involved, we deem a sentence of five years as excessive.
Concur — Eager, J.P., McGivern, Tilzer and Macken, JJ.