*1 Following a bench trial held on July 18, 2016 in Rochester City Court (Johnson, J.), appellant Tyrone King was convicted of Harassment in the Second Degree (Penal Law §*2
240.26 [3]) and sentenced to 15 days in the Monroe County Jail. He seeks to reverse his conviction on the ground that the trial court improperly limited his cross examination regarding the existence and nature of a felony charge pending against the People’s sole witness.For the reasons below, the judgment of the lower court is reversed and a new trial ordered.The People called one witness, the victim Jeffrey Baase. Mr. Baase testified that the defendant poked him in the face, which act formed the basis for the charge of Harassment in the Second Degree. On cross examination, defense counsel asked Baase two times whether he had a grand larceny charge pending. Each time Baase replied, “I plead the Fifth.” Baase was asked a third time whether he was represented by counsel on a pending grand larceny charge. The People objected, but the answer was allowed, and the Court commented, “That’s not relevant to this.” A fourth time Baase was asked whether he had been charged with grand larceny, and after the court overruled the People’s objection, Baase again said, “I plead the Fifth.”It is well settled that the scope of cross-examination is generally subject to the sound discretion of the trial judge (People v. Keel, 201 AD2d 960, 960 [4th Dept 1994], and will not be disturbed absent plain abuse or an abuse of discretion (Keel, id.) (see also People v. Howie, 149 AD3d 1497, 1499 [4th Dept 2017], lv to appeal denied, 29 NY3d 1128 [2017]).Defendant argues that the Court abused its discretion when it precluded questioning about the Grand Larceny charge, and, that such error violated the defendant’s state and constitutional right to confront and cross-examine an adverse witness, an error that, even if not preserved, should be addressed in the interest of justice.The People counter that an inquiry into an arrest or indictment, which are mere accusations, is “not a permitted area for impeachment,” citing People v. Miller, 91 NY2d 372, 380 (1998) (internal quotation omitted). In Miller the Court of Appeals criticized “the prosecutor’s blatant violation of this long-standing evidentiary rule” (id.).However, on cross-examination of a prosecution witness, defendant’s constitutional rights come into play and the rule in Miller does not apply so readily. The Court of Appeals has held that a where witness’s invocation of a privilege against self-incrimination with regard
