People v. Travison

¶1Although I agree with the majority, the position adopted by the dissent warrants some further comment. In cross-examining a defendant about former misdeeds, a prosecutor must always act in good faith and possess a reasonable basis in fact for believing that the accused had engaged in such misconduct. A defendant may question whether the inquiry rests on a legitimate foundation and, if he does, trial courts properly should interrupt the proceedings to resolve the issue (e.g., People v Kass, 25 NY2d 123; People v Alamo, 23 NY2d 630). While a defendant has an opportunity to seek the suppression of certain materials in advance of trial by way of a Sandoval motion, it has never been suggested that this procedure constitutes an exclusive remedy precluding an initial or further attack on the scope of cross-examination at trial. Defendant was indeed entitled to be heard on the propriety of the prosecutor’s questions, and he undoubtedly would have received consideration of the matter in the absence of the jury had he but asked for some relief. The trial court could not possibly have anticipated those questions or the defendant’s responses thereto. Nevertheless, the dissent would cast an affirmative burden on the trial court to halt the cross-examination at some unspecified point and satisfy itself *410that proper bounds are not exceeded. In an extreme case the trial court should intervene to prevent a defendant from being deprived of a fair trial, but this plainly is not such a case and there is no claim here that defense counsel was incompetent to protect the interests of his client. Defendant possessed a means both before and during trial to insure that he would only be subject to proper questions on cross-examination. He simply failed to take meaningful advantage of these procedures on either occasion. Even if he was ignorant of such topics at the pretrial stage, there is no good reason to suppose that the prosecutor lacked the requisite good faith or factual support for proceeding as he did and there is even less reason to foist the responsibility for raising such issues onto the trial court.