People v. Bermudez ( 1985 )

— Judgment of the Supreme Court, New York County (Shorter, J.), rendered January 31, 1983, convicting defendant of sodomy in the first degree and sentencing him to an indeterminate term of imprisonment of 2 to 6 years, reversed, on the law, and the case is remanded for a new trial.

Defendant was convicted after a jury trial of sodomy in the first degree and sentenced to an indeterminate term of imprisonment of 2 to 6 years. The evidence seems to us legally sufficient to have supported the jury’s verdict although a close question was presented as to the adequacy of the proof to establish forcible compulsion as that term was then defined in Penal Law § 130.00 (8). Given the marked discrepancy in age, size and strength between the defendant and the 11-year-old complainant, and the isolated circumstances under which the act of sodomy allegedly occurred, we are persuaded that the jury could reasonably have found that the forceful grabbing of the complainant by the defendant constituted “a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself” (Penal Law § 130.00 [8]; cf. People v Fuller, 50 NY2d 628; People v Vicaretti, 54 AD2d 236, 241, 242).

However, reversible error occurred when the court, over timely objection, charged the jury: “The testimony of a person convicted of a crime is to be approached with caution and can be disregarded unless it produces in your mind positive conviction of its truth.” Although it is of course well established that the fact of a conviction is one that a jury may properly consider in evaluating testimony of a witness, it is clearly wrong to say that the testimony of such a person “is to be approached with caution and can be disregarded unless it produces in your mind positive conviction of its truth.” (See, People v Gadsden, 80 AD2d 508; cf. People v Ochs, 3 NY2d 54; 1 CJI [NY] 7.03, at 269-270.) Since the defendant was the only witness to testify who had a previous conviction, albeit a relatively minor one, the effect of the instruction was to direct the jury to apply to his testimony a separate, different and erroneous standard in evaluating his truthfulness. Under all the circumstances, we are unable to say that the error was a harmless one. Concur — Sandler, J. P., Asch and Bloom, JJ.