County Court, Monroe County, January 26, 2018

Timothy Donaher, Public Defender, Rochester (David R. Juergens of counsel), for appellant.

Sandra J. Doorley, District Attorney, Rochester (Joseph R. Plukas of counsel), for respondent.

Following a bench trial held on July 18, 2016, in Rochester City Court (Johnson, J.), appellant Tyrone King (hereinafter defendant) was convicted of harassment in the second degree (Penal Law § 240.26 [3]) and sentenced to 15 days in the Monroe County Jail. He seeks to reverse his conviction on the ground that the trial court improperly limited his cross-examination regarding the existence and nature of a felony charge pending against the People's sole witness.

For the reasons below, the judgment of the lower court is reversed and a new trial ordered.

The People called one witness, the victim Jeffrey Baase. Mr. Baase testified that the defendant poked him in the face, which act formed the basis for the charge of harassment in the second degree. On cross-examination, defense counsel asked Baase two times whether he had a grand larceny charge pending. Each time Baase replied, "I plead the Fifth." Baase was asked a third time whether he was represented by counsel on a pending grand larceny charge. The People objected, but the answer was allowed, and the court commented, "That's not relevant to this." A fourth time Baase was asked whether he had been charged with grand larceny, and after the court overruled the People's objection, Baase again said, "I plead the Fifth."

It is well settled that the scope of cross-examination is generally subject to the sound discretion of the trial judge (People v Keel, 201 AD2d 960, 960 [4th Dept 1994]), and will not be disturbed absent plain abuse or an abuse of discretion (id.; see also People v Howie, 149 AD3d 1497, 1499 [4th Dept 2017], lv denied 29 NY3d 1128 [2017]).

Defendant argues that the court abused its discretion when it precluded questioning about the grand larceny charge, and that such error violated the defendant's state and federal constitutional right to confront and cross-examine an adverse witness, an error that, even if not preserved, should be addressed in the interest of justice.

The People counter that an inquiry into an arrest or indictment, which are mere accusations, is "not a permitted area for impeachment," citing People v Miller (91 NY2d 372, 380 [1998] [internal quotation marks omitted]). In Miller the Court of Appeals{**59 Misc 3d at 336} criticized "the prosecutor's blatant violation of this long-standing evidentiary rule" (id.).

However, on cross-examination of a prosecution witness, defendant's constitutional rights come into play and the rule in Miller does not apply so readily. The Court of Appeals has held that where a witness's invocation of a privilege against self-incrimination with regard to pending charges impacts the defendant's ability to confront and cross-examine the witness on a matter directly relating to bias or a motive to lie, then the defendant's Sixth Amendment right is implicated and the appropriate remedy is to strike the testimony (People v Chin, 67 NY2d 22, 28 [1986]). As the Court held in Chin, "[A witness's] [r]efusal to answer the cross-examiner's questions [regarding pending charges] may so distort the fact-finding process that some or all of the direct testimony must be struck, lest the defendant be deprived of a fair trial" (Chin at 28, citing People v Farruggia, 77 AD2d 447, 452 [4th Dept 1980] ["When the restriction upon cross-examination goes beyond the exclusion of purely collateral matters, however, the testimony of the witness must be stricken in whole or in part"]; see also People v Thomas, 130 AD2d 692, 693 [2d Dept 1987]; People v Baldwin, 130 AD2d 666, 667 [2d Dept 1987]).

Here, defendant was cut off from exploring what the defendant suggests in his brief may have been a fertile ground for impeachment—whether the victim, the only witness against the defendant and against whom a grand larceny charge was pending, constructed his testimony so as to "curry" favor with the prosecution. While defense counsel may have been more articulate in stating why he needed to ask the victim about pending charges, and the trial judge did initially allow some leeway, ultimately the judge gave a general ruling on the line of inquiry the defendant was trying to pursue, that it was "not relevant." That was an abuse of discretion. The defendant's constitutional right to confront the witness "trumped" (United States v Cardillo, 316 F2d 606, 613 [2d Cir 1963]) the witness's assertion of the privilege. And, with all due respect to the rule in Miller against asking a witness whether he has been arrested, it is difficult to imagine a line of questioning about a pending charge that does not begin with the question, "were you arrested?"

The defendant preserved the issue for review, since the trial court expressly decided whether the defendant could inquire into the arrest for grand larceny and declared that it was "not {**59 Misc 3d at 337} relevant" (see CPL 470.05 [2]; see also Peoplev Johnson, 144 AD2d 490, 491 [2d Dept 1988]; but see People v Trinidad, 177 AD2d 286, 286 [1st Dept 1991] ["Defendant waived most challenges to the court's limitation of cross-examination by failing to place on the record his explanation of the relevance and materiality of his proposed lines of inquiry"], citing People v George, 67 NY2d 817, 819 [1986]).

Even if defendant did not adequately preserve the issue, the issue is addressed in the interests of justice, as the court's restriction on defendant's cross-examination of the witness upon which the People's entire case depended was a violation of his Sixth Amendment right to confrontation (US Const Amends VI, XIV; see also NY Const, art I, § 6).

Further, the error was not harmless. The defendant was prevented from impeaching the credibility of the sole witness against him by any other means (People v Watson, 111 AD2d 888, 888 [2d Dept 1985]). One can only speculate as to what the line of inquiry into the pending charge would have produced by way of impeachment material, whether collateral to the action or directly related to the direct examination, such as bias or motive to lie. But defendant should have at least been allowed to start down that path. As the victim was the sole proof against the defendant, the abuse of discretion cannot be said to have been harmless.

The decision of the lower court is hereby reversed and the matter is returned to the Rochester City Court for a new trial.