Opinion
August 21, 1989
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered before a different Supreme Court Justice.
While most of the errors complained of were properly preserved for appellate review, some were not. However, under the circumstances of this case, we feel compelled to reach them in the interest of justice and to reverse the judgment of conviction (People v. Ortiz, 125 A.D.2d 502; People v. Hamilton, 121 A.D.2d 176).
The trial was marked by the prosecutor's efforts, even over sustained objections, to characterize the defendant as an individual predisposed to commit the crime charged. Although proof of a prior crime may be introduced under certain circumstances (People v. Molineux, 168 N.Y. 264; People v Allweiss, 48 N.Y.2d 40, 46-47), and may be the subject of cross-examination insofar as it relates to credibility (People v Sandoval, 34 N.Y.2d 371), it may not be offered, or argued in summation, as illustrative of a criminal propensity (People v Maddox, 138 A.D.2d 749).
Contrary to the People's contention, there was also a violation of the rule against collateral impeachment. Under that concept, testimony that merely contradicts a witness on a collateral point is improper rebuttal (People v. Ramos, 139 A.D.2d 775; People v. Booker, 134 A.D.2d 949). What is collateral "must be determined under the particular circumstances of each case; no general principle can be laid down" (People v. Gonzalez, 100 A.D.2d 852, 853; People v. Harris, 57 N.Y.2d 335, cert denied 460 U.S. 1047). The rebuttal testimony at bar related to the defendant's employment, whether or not he received welfare, and whether he lived with his girlfriend or with his mother. Under the facts of this case, these were collateral issues.
Standing alone, the introduction of this rebuttal proof might, as the People suggest, be susceptible to harmless error analysis (e.g., People v. Brown, 126 A.D.2d 657), but we conclude that the cumulative effect of the errors compromised the defendant's right to a fair trial.
Finally, because of the comments of the Trial Judge as to the credibility of the complainant we direct that the retrial take place before another Justice. Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.