People State New York v. Richard Lee Dawson

Following a trial by jury in the Monroe County Court, defendant Richard Lee Dawson was found guilty of the crimes of sodomy in the first degree (Penal Law, § 130.50), attempted rape in the first degree (Penal Law, §§ 110.00, 130.35), robbery in the second degree (Penal Law, § 160.10), grand larceny in the third degree (Penal Law, § 155.30) and assault in the second degree (Penal Law, § 120.05). His conviction was affirmed, without opinion, by the Appellate Division, Fourth Department. On appeal to this court, defendant now contends that his conviction should be reversed because the District Attorney improperly cross-examined a number of defense witnesses regarding their failure to come forward with exculpatory information prior to trial. The instant appeal thus requires us to consider a question which has produced a divergence of opinion among the Justices at the Appellate Divisions: whether and under what circumstances a District Attorney may use a defense witness prior silence as a basis for impeachment.