People v. Davis , 474 N.Y.S.2d 516 ( 1984 )

Judgment, Supreme Court, New York County (Allen Murray Myers, J.), rendered February 24, 1981, convicting defendant of criminal possession of a controlled substance in the second degree (Penal Law, § 220.18) and sentencing him to an indeterminate term of 3 years to life, affirmed. 11 We disagree with the dissent that the extent of the cross-examination of defendant as to his prior and current use of heroin and methadone was unnecessary or prejudicial so as to require a reversal. To the contrary, this is not a case involving excessive prosecutorial zeal which prejudiced defendant’s right to a fair trial. Defendant’s direct examination placed in issue his credibility relating to his heroin addiction, opening the door to cross-examination intended to explore the very matters which defense counsel had raised on direct. 11 Defendant was questioned at length by his attorney to establish that he no longer used heroin and was involved in a methadone program. These were the first questions asked by his counsel. His direct testimony was interlaced with differing references to his having been off heroin for at least “one month”, “6 weeks” and “two months,” the clear implication being that he had no need to possess or sell it. He testified that he was en route from his home to his methadone clinic and, in doing so, took a most circuitous route, passing along 112th Street, which he knew was a “shooting gallery.” His attorney again presented the issue of his route by asking several questions as to the indirect route taken, which was never satisfactorily explained except that defendant stated he sought to avoid encountering members of a motorcycle club, “Unicorn”, whose location he never defined in relation to the path he took or the one he avoided. 11 On cross-examination of defendant, the prosecutor explored the very areas which had been inquired into on direct and, for the most part, the extent of the cross-examination resulted from the vague, imprecise and inconsistent responses by defendant. Thus, when questioned as to whether he had in fact stopped using heroin before joining the methadone program, he responded, “I was trying to stop then. I wasn’t fully.” This was followed with the response, “No, sir, I wasn’t using it at that time.” While, on direct he claimed to have been off heroin for varying periods of time, on cross-examination he admitted he was not “totally straight” at the time of his arrest but “was working on it.” Although the dissent finds fault in the questions pertaining to the methadone program, it was defendant who first injected this issue when he endeavored to show that he was off heroin and, accordingly; had no need to “shoot up.” Under the circumstances, inasmuch as the issues were explored extensively by defendant on direct, it would be unfair and unbalanced to preclude the prosecution from legitimate cross-examination. Contrary to the view expressed by the dissent, section 23.05 of the Mental Hygiene Law was intended to apply as a shield, not as a sword and, on this record, does not operate to preclude questions on the very subject introduced by defendant. Ü On this record, we find that there was no denial of defendant’s right to a fair trial. In view of the extent of defendant’s direct examination, it would be palpably unfair and unreasonable to limit the prosecution on the very significant issues raised to establish the defense that defendant was “off the habit.” Defendant opened the door by admitting that although he had been addicted to heroin since he was 19 years of age and had used drugs for 20 years, he discontinued such use since attending a methadone program months prior to his arrest. It is obvious that this defense was keyed to the fact that he had no need to deal in or possess heroin since the financial demands of the habit had been eliminated by his being a part of the methadone program and that his being by coincidence on 112th Street, “the shooting gallery”, was to avoid some unsavory characters whose location he was unable to pinpoint. Moreover, the proof of guilt was overwhelming, defendant having been found in possession of 24 glassine envelopes of heroin after being observed for a period of time by an officer who had monitored his- actions'1 by use of power binoculars from a second-story window. Under the circumstances, considering all of the evidence, the unquestioned overwhelming proof of guilt and the absence of any objection to preserve the issue for review on appeal, at most there was harmless error (People v Crimmins', 36 NY2d 230). Concur — Ross, J. P., and Kassal, J. Asch, J., concurs in a memorandum, and Carro and Fein, JJ., dissent in a memorandum by Carro, J., as follows: