Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal

In reversing defendant’s assault conviction, the Court of Appeals, in a full-fledged opinion by Judge Lippman, determined a defendant with a conviction pending appeal may not be cross-examined about the underlying facts of that conviction until direct appeal has been exhausted.  Judge Lippman wrote:

At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts, and the sentence he received. After the People rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant’s constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records…. Defendant was retried and acquitted.  * * *

…[I]n ruling that the prosecution could cross-examine defendant about the underlying facts of his rape conviction, presumably the court was not implying that defendant could not assert his Fifth Amendment privilege in response to those questions. However, “taking the Fifth,” is highly prejudicial as to both the instant case and the conviction pending appeal. To a jury, it appears as though defendant is admitting the truth of the leading questions posed by the prosecutor; “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf” …. More problematic, defendant must invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself; otherwise he might waive the privilege… .  People v Cantave, No 129, CtApp 6-25-13