People v. Kass, 32 N.Y.2d 123 (1973)

A prosecutor may cross-examine a testifying defendant about prior immoral, vicious, or criminal acts relevant to credibility if the questions have a good faith basis in fact; however, a new trial is warranted if the prosecution misled the defense regarding the destruction of original evidence and substitution with retranscribed notes.

Summary

Defendant Kass, an attorney, was convicted of bribery and conspiracy. The prosecution’s case hinged on Sergeant Hoelzer’s testimony that Kass paid him for police protection. On cross-examination, the prosecutor asked Kass about misappropriating diamonds. Kass argued this was improper. The court held the cross-examination permissible, finding a good-faith basis. However, the court reversed the conviction and ordered a new trial because Kass received retranscribed notes of Sergeant Hoelzer and was misled into believing he possessed the original notes, which had been destroyed after a prior trial. The court reasoned that the destruction of the original notes prejudiced the defense’s ability to effectively cross-examine the key prosecution witness.

Facts

• Kass, an attorney, was charged with bribery and conspiracy related to payments for police protection.
• Sergeant Hoelzer testified that Kass agreed to pay him $500 weekly for protection of illegal activities and made the first payment.
• Kass admitted many events but denied wrongdoing.
• During cross-examination, the prosecutor asked Kass if he had “misappropriated two diamonds worth about $4,000 from a jeweler.”
• Original notes of Sergeant Hoelzer regarding his investigation were given to Kass at a previous trial but were destroyed after the first trial. At the second trial, he was provided with retranscribed notes.

Procedural History

• Kass was initially tried on charges related to conspiracy and bribery of Sergeant Hoelzer but was acquitted.
• He was then separately tried and convicted on a second indictment charging him with conspiracy to bribe and bribery of a public officer.
• Kass appealed, arguing the cross-examination about the diamonds was improper and that he was misled regarding the notes.

Issue(s)

1. Whether the prosecutor’s cross-examination of Kass regarding the alleged misappropriation of diamonds was proper.
2. Whether the destruction of Sergeant Hoelzer’s original notes and the provision of retranscribed copies to the defense warrants a new trial.

Holding

1. Yes, because the prosecutor demonstrated good faith and had a factual basis for asking about the diamond misappropriation.
2. Yes, because Kass was misled into believing he possessed the original notes, hindering his ability to effectively cross-examine the key prosecution witness.

Court’s Reasoning

• Cross-Examination: The court stated that a testifying defendant may be cross-examined about immoral, vicious, or criminal acts bearing on credibility, even if not similar to the charged crime, provided there is a good faith basis in fact. The court found the prosecutor showed good faith by stating he’d been informed by the jeweler’s attorney that Kass received the diamonds on consignment and failed to return them. The jeweler’s concern and willingness to travel to the trial supported the prosecutor’s good faith. The court cited People v. Schwartzman, 24 N.Y.2d 241, 244 and People v. Alamo, 23 N.Y.2d 630.
• Destruction of Notes: The court acknowledged Kass’s right to examine a witness’s prior statements relating to their testimony under People v. Malinsky, 15 N.Y.2d 86, 90, and People v. Rosario, 9 N.Y.2d 286. While Kass received notes, he was misled into believing they were original. The court reasoned this prejudiced Kass, as he could not inquire into the circumstances of the destruction to test Hoelzer’s credibility. The court mandated that at the new trial, the jury be instructed to weigh Hoelzer’s testimony considering the unavailability of the original notes for cross-examination.