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VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS.

The Second Department determined the prosecutor’s violation of the Sandoval ruling required reversal. Defendant was charged with attempted burglary. The court ruled the defendant could be cross-examined about petit larceny and burglary convictions, but only to the extent he could be question about unspecified misdemeanor and felony convictions. When defendant testified he was repeatedly asked whether he had ever walked into a building which was closed to the public. The Second Department held that defendant had not opened the door to that line of questioning:

On cross-examination, the defendant testified that there were times in the past when he had been intoxicated and “ended up in the bushes” or “in the park” and that it was possible for a drunk person to end up in someone’s backyard. The prosecutor questioned the defendant as to other places he had been in the past, specifically asking if he had ever “enter[ed] a building that [he] had no permission to go?” The defendant initially denied entering a building, but after further questioning, which the Supreme Court allowed over defense counsel’s objection, he admitted that he had walked into a store that was closed but had people in it. The prosecutor pressed further, and later asked the defendant, “Have you ever walked into a building that was completely closed to the public with no people inside of that building?” and the defendant responded, “I don’t recall.” The prosecutor then asked if he had been convicted of a felony and the defendant replied affirmatively. The record reflects more than a half a dozen occasions when the People clearly violated the court’s Sandoval ruling by repeatedly questioning the defendant concerning the underlying facts of his prior burglary conviction.

Defendants who take the witness stand, like other witnesses, place their credibility in issue and, thus, may be cross-examined about past criminal or immoral acts relevant to their credibility … . The policy underlying Sandoval is that the accused has the right to make an informed choice concerning whether he or she should take the witness stand … . Thus, in the interest of fairness, a trial court’s authority to change its Sandoval ruling is limited once the defendant has decided to testify in good-faith reliance on the court’s pretrial ruling … . The defendant in this case was denied that right when, after making what he believed to be an informed judgment and taking the witness stand, the Supreme Court implicitly changed the ruling upon which he relied by allowing the prosecutor to continue her course of prejudicial questioning despite repeated objections from defense counsel. The court’s implicit change in its ruling after the defendant had already taken the witness stand deprived the defendant of a fair trial … . People v Mohamed, 2016 NY Slip Op 08885, 2nd Dept 12-28-16

 

CRIMINAL LAW (VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/EVIDENCE (CRIMINAL LAW, VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/SANDOVAL RULING (VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)/CROSS-EXAMINATION (CRIMINAL LAW, VIOLATION OF SANDOVAL RULING REQUIRED A NEW TRIAL, DEFENDANT DID NOT OPEN THE DOOR TO THE IMPROPER QUESTIONS)

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PROSECUTORIAL MISCONDUCT REQUIRED REVERSAL, DETAILED EXPLANATION OFFERED. PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION...