Decided On : 6/28/2016
AD1 order dated February 24, 2015, affirming judgment of conviction. Decision below: 125 AD3d 537, 4 NYS3d 186. Abdus-Salaam, J., granted leave September 4, 2015.
ISSUES PRESENTED: (1) The court’s erroneous ruling deprived appellant of a fair opportunity to test the credibility of the lead investigating detective and the accuracy of his account, by (a) prohibiting defense counsel from cross-examining the detective about the facts underlying three federal false arrest lawsuits brought against him; and (b) ruling that, by impeaching the detective with his sworn statement that it was appellant’s brother, not appellant, that had committed two of the sales, the door was opened to evidence of two uncharged sales; thereby depriving appellant of his rights to due process and to cross-examine and confront witnesses(cont’d on additional sheet). (2) Appellant was incorrectly sentenced as a second felony drug offender whose prior conviction was a violent felony, because his prior conviction for criminal possession of a weapon in the third degree, under Penal Law § 265.02(4), is not a violent predicate felony under Penal Law § 70.02(1). (Assigned counsel: Mark W. Zeno & Robert S. Dean , Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10006.)