This is a proceeding wherein the defendant appeals from a judgment of the County Court, Nassau County, rendered 1 February 1971, which convicted him, upon a jury verdict, of the crime of rape and sexual abuse, both in the first degree, and imposed appropriate sentences.
The court reverses the judgment, on the law, and remands the case to the Nassau County Court for a new trial not inconsistent with this memorandum.
At the trial, the County Court permitted RC to testify that he was a probation officer over defense counsel’s vigorous objection and demand for a mistrial. Thereafter, RC stated that defendant came to his office and told him that he was wanted by the police for his alleged commission of an act of rape upon the complainant and that he had, in fact, engaged in consensual sexual intercourse with the complainant. There was no domestic violence.
Thereafter, the County Court permitted the People to elicit from their own witness, a police detective who had administered a polygraph examination to the defendant, that, based upon the graphs produced from such examination, it was his opinion that criminal defendant was not telling the truth during such examination when he denied having committed the crime charged. In addition, the County Court refused to permit defense counsel to subpoena a certain Assistant District Attorney who was involved in a multiple prosecution of the complainant and others on charges including vagrancy and prostitution, as well as the records concerning such prosecution. Drug possession was not a charge.
The court is of the opinion that these three rulings of the County Court were erroneous and, collectively, require that the judgment of conviction be reversed and that defendant be given a second trial at which these errors should be corrected.
The court finds that it was error for the County Court to have permitted RC to state his profession. By identifying himself as a probation officer and giving his subsequent testimony, the witness provided the jury with enough information to conclude that the defendant was already a convicted criminal. The admission into evidence of the fact that defendant had been previously convicted of a crime is prohibited if is offered merely for the purpose of establishing that the defendant had a criminal history, but is permitted where such facts would have some probative value in establishing defendant’s guilt for the crime of which he stands accused. In addition, such evidence will be allowed into the record when the defendant himself takes the witness stand and the prosecution seeks to shed doubt upon his credibility or to impeach him. Neither of the above exceptions was present in the case at bar.
To Be cont….
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