| People v Holmes |
| 2019 NY Slip Op 02033 [170 AD3d 532] |
| March 19, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Stanley Holmes, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing;Michael R. Sonberg, J. at jury trial and sentencing), rendered June 30, 2016, convictingdefendant of criminal possession of a weapon in the second degree, and sentencing him, as apersistent violent felony offender, to a term of 16 years to life, unanimously reversed, on the law,and the matter remanded to Supreme Court for a determination, based upon the evidencepresented at the suppression hearing, of the issues raised at the hearing but not decided by thecourt, and for a new trial.
The parties correctly agree that the hearing court erred when it denied defendant's motion tosuppress a pistol based solely on the court's finding that defendant lacked standing because thepistol was recovered from the ground. Two officers testified at the hearing to the effect that thepistol was recovered immediately after it fell from defendant's person. Since this Court lacksjurisdiction to affirm the denial of defendant's motion to suppress the pistol on the alternativeground that the police had reasonable suspicion to stop and frisk him, a ground upon which thehearing court did not rule, we "reverse the denial of suppression and remit the case to SupremeCourt for further proceedings" (People v LaFontaine, 92 NY2d 470, 474 [1998]; see also People v Simmons, 151 AD3d628, 629 [1st Dept 2017] [determination of unresolved suppression issues following remandis to be based upon the hearing minutes]).
Defendant is also entitled to a new trial, because the trial court improperly precluded hiscounsel from cross-examining the only police officer who allegedly saw the pistol falling fromhis person about allegations raised in a federal civil action against the officer, which had settled.Counsel had a good faith basis for seeking to impeach the officer's credibility by asking himabout allegations that he and other officers approached and assaulted the plaintiff in that casewithout any basis for suspecting him of posing a danger and filed baseless criminal chargesagainst him (see People v Smith, 27NY3d 652, 666-667 [2016]). Although trial courts "retain broad discretion" over theadmission of prior bad acts allegedly committed by a police witness or other witness (id.at 660), the court improvidently exercised its discretion by entirely precluding anycross-examination about the allegations at issue here without any valid justification, such as apotential to confuse the jury (see id. at 668).
We find that this error was not harmless (see People v Crimmins, 36 NY2d 230, 242[1975]). This case hinged on the testimony of the two police officers present at the time the pistolwas retrieved from the ground, and the court's ruling pertained to the only officer who allegedlysaw the pistol falling from defendant's person. Since the evidence of guilt was not overwhelmingand defendant "was not permitted to cross-examine [the] witness[ ] regarding the acts underlyingthe federal lawsuit, which would have been relevant to [his] credibility," there was a "significantprobability that the jury would have acquitted if defendant had been permitted to impeach" theofficer (Smith, 27 NY3d at 668). We note that the jury returned its verdict in this simpleweapon possession case after deliberating for three days and receiving two Allen charges(see Allen v United States, 164 US 492 [1896]), and two prior juries failed to reach aunanimous verdict on the sole count in this case.
Since we are ordering a new trial, we find it unnecessary to reach defendant's remainingarguments, except that we find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]). Concur—Sweeny, J.P., Webber, Gesmer, Singh, JJ.