Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William L. McGuire, J.), rendered July 21, 2005. The judgment convicted defendant, upon a jury verdict, of two counts of tampering with a witness in the fourth degree and one count of harassment in the second degree.

Judgment of conviction reversed on the law and as a matter of discretion in the interest of justice, and accusatory instrument dismissed.

Defendant was convicted, following a jury trial, of two counts of tampering with a witness in the fourth degree (Penal Law § 215.10) and one count of harassment in the second degree (Penal Law § 240.26 [1]). We reverse the judgment because the lower court's Sandoval-related rulings (see People v Sandoval, 34 NY2d 371 [1974]) permitted plainly improper cross-examination of defendant concerning his prior youthful offender adjudication. In reversing, we reach the unpreserved aspects of the issue as a matter of discretion in the interest of justice (see CPL 470.15 [6]). We do this for two reasons. First, it is our desire to ensure respect for the protected status afforded youthful offenders by New York law (see CPL article 720). Second, we note that the instant case was a credibility contest in which the jury's mixed verdict it acquitted defendant of several additional charges indicated that it credited at least some portions of defendant's testimony over that of the complainant. Under these circumstances, we do not discount the possibility that the errors in question may have led to an unjust result.

The first error lay in the court's initial Sandoval ruling. The court ruled that the prosecutor would be allowed to elicit the fact that
"On May 8, 95, the Defendant committed . . . certain acts, which were admitted to in Queens County Supreme Court on May 13, [*2] 06, which would have been a felony, had the Defendant not been adjudicated a Youthful Offender."
This ruling was patently improper, as the fact that defendant had been adjudicated a youthful offender could not be elicited at trial (see e.g. People v Cook, 37 NY2d 591, 595 [1975]). The error took its natural course when the court improperly permitted the prosecutor to ask defendant during cross-examination, over defense objection, "Isn't it not [sic] a fact, that in 1995, you committed acts which would constitute a felony had you not been a youthful offender?" Defendant answered this question, "As a child, I did childish things, yes." We find that the trial court erred in ruling, over defense objection, that this response opened the door to the elicitation of additional facts concerning the youthful offender adjudication (see People v Moore, 92 NY2d 823, 825 [1998]).

In addition, we find that the court erred again in its ruling as to what additional information the prosecutor would be permitted to elicit. It allowed the prosecutor to elicit an acknowledgment from defendant that "it" was "a violent felony." This was tantamount to informing the jury that defendant had been convicted of a violent felony. Defendant had not, of course, been convicted of a violent felony, or, indeed, of any offense at all. Criminal Procedure Law section 720.35 specifically provides, "A youthful offender adjudication is not a judgment of conviction for a crime or any other offense . . . ."

As defendant has served his sentence, and no penal purpose would be served by a new trial, we dismiss the accusatory instrument in the exercise of our discretion (see People v Bell, 15 Misc 3d 116 [App Term, 2d & 11th Jud Dists 2007]; cf. People v Allen,
39 NY2d 916 [1976]). In light of this disposition, we do not reach defendant's remaining contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 21, 2008