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UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION AS SANDOVAL EVIDENCE.

Although the errors were deemed harmless, the Second Department noted that allowing, as Sandoval evidence, a comment posted by defendant on Facebook and evidence of defendant’s gang affiliation was improper under the facts:

The Supreme Court erred, in its Sandoval ruling … , in permitting the People to elicit testimony from the defendant regarding a comment posted on his Facebook page, since the comment was not probative of the defendant’s credibility … . The Supreme Court further erred in permitting the People to elicit testimony from certain witnesses regarding the defendant’s alleged gang affiliation and involvement in a prior violent incident. Contrary to the People’s contention and the Supreme Court’s conclusion, the defendant did not introduce evidence that could properly be construed as character evidence and, thus, it was improper to permit the People to elicit evidence as to the defendant’s alleged prior bad acts on that basis … . In addition, the Supreme Court improperly modified its Sandoval ruling by permitting the prosecutor to question the defendant regarding his alleged gang affiliation and the prior violent incident, as the defendant did not “open the door” to the otherwise precluded evidence … . People v Borgella, 2016 NY Slip Op 07972, 2nd Dept 11-23-16

CRIMINAL LAW (UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)/EVIDENCE (CRIMINAL LAW, SANDOVAL, UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)/SANDOVAL (UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION)

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