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THE STATUTE REQUIRING THE PEOPLE TO FILE A CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS IN ORDER TO BE READY FOR TRIAL WENT INTO EFFECT ON JANUARY 1, 2020; REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD A VALID READY-FOR-TRIAL ANNOUNCEMENT MADE PRIOR TO JANUARY 1, 2020, WAS NOT AFFECTED BY THE NEW STATUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over a concurring opinion and a dissenting opinion, determined the new statutory discovery obligations imposed upon the People, effective January 1, 2020, did not affect a valid ready-for-trial announcement made prior to January 1, 2020. The Appellate Division held the new statute required the People to file a Certificate of Compliance to be ready for trial and the failure to do so mandated dismissal on speedy-trial grounds:

On January 1, 2020, amendments to New York’s discovery (CPL art 245) and statutory speedy trial (CPL 30.30) rules went into effect, and the old discovery rules (CPL former art 240) were repealed … . On January 27, the first day of trial, defendant moved to dismiss the indictment on statutory speedy trial grounds, arguing that the People had become unready for trial when the amendments came into effect and had failed to file a certificate of compliance with the new discovery rules (COC) as required by the amendments and announce their readiness before their statutory speedy trial time expired. * * *

There is no evidence, in the plain language of the amendments or the legislative history, that the legislature intended to—or did—revert the People to a state of unreadiness on January 1, 2020. Rather, the amendments specifically tie the COC requirement to the People’s ability to state ready and be deemed ready. Because the legislature established the COC requirement as a condition precedent to declaring ready for trial and did not indicate an intent to undo the People’s prior readiness statements, there is no basis to apply that requirement prospectively to a case such as the present one where the People were in a trial-ready posture when it went into effect. In other words, the People are not required to fulfill a prerequisite to declaring trial readiness when they have already validly declared ready for trial. Accordingly, the only way to apply the COC requirement to this case would be to wholesale invalidate the People’s pre-2020 readiness statement—not to render the People unready as of January 1, 2020. Because the language of the amendments does not “expressly or by necessary implication require” this plainly retroactive application, we cannot conclude that the legislature intended for the COC requirement to apply in this manner … . Consequently, the People are not chargeable for any delay after January 1, 2020, and thus remained within the applicable 181-day statutory speedy trial limit … . People v King, 2024 NY Slip Op 03322, CtApp 6-18-24

Practice Point: Here the People made a valid ready-for-trial announcement before the new discovery statute went into effect on January 1, 2020. The trial started on January 27, 2021, and the defense moved to dismiss on speedy trial grounds because the People never filed a certificate of compliance, a new statutory requirement for readiness for trial. The Appellate Division dismissed the case on that ground. The Court of Appeals reversed, finding the pre-January 1, 2020, ready-for-trial announcement was unaffected by the new statutory requirements.

 

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THE TRIAL COURT PROPERLY RULED THE PEOPLE PROVIDED RACE-NEUTRAL REASONS FOR STRIKING TWO BLACK JURORS; THE TRIAL COURT PROPERLY RULED THE HANDCUFFED DEFENDANT’S SHOW-UP IDENTIFICATION PROCEDURE WAS PROPER (CT APP).

The Court of Appeals, affirming the trial court’s Batson and suppression rulings, in a full-fledged opinion by Judge Cannataro, over a three-judge dissenting opinion, determined the trial court’s rulings (1) the People demonstrated race-neutral reasons for striking two Black jurors and (2) the show-up identification of the defendant, who was handcuffed, was proper:

Overall, C.C.’s responses gave rise to a reasonable inference that: (1) he viewed the arrest of his cousin for marijuana possession as a crime against his cousin; (2) he viewed the arrest of his cousin as a “raid” by police; and (3) his negative feelings towards police could affect his view of police witnesses in the case, regardless of any contradictory assurances he might have given. These inferences are patently reasonable and the trial court’s determination that the non-discriminatory reasons offered by the People in support of their peremptory strike of C.C. were credible and non-pretextual finds ample support in the record … . * * *

The People expressed concern that K.C.’s job duties would cause her to be inappropriately sympathetic to defendant. K.C.’s job involved determining whether juvenile offenders would be entitled to intake diversion, or face prosecution, and she was previously employed as a caseworker. We have previously recognized that a party may permissibly strike a juror “who works in a certain field . . . because that party believes—for reasons unrelated to the facts of the case—that such individual may have a more sympathetic attitude or view toward the opposing party” … . * * *

Although this Court has stated that a showup procedure in which a suspect is handcuffed and in the presence of police is “suggestive and not preferred” and “presses judicial tolerance to its limits” … , we have concluded that, such a showup is “reasonable under the circumstances” when it is conducted in close geographic and temporal proximity to the crime … . When a showup is done as part of “one unbroken chain of events—crime, escape, pursuit, apprehension and identifications” such a procedure is acceptable … . As we have recognized, ” ‘prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed” ,,, . Moreover, “[w]hether a crime scene showup is unduly suggestive is a mixed question of law and fact. Thus, if record evidence supports the determination below, this Court’s review is at an end” …. . People v Wright, 2024 NY Slip Op 03320, CtApp 6-18-24

Practice Point: A show-up identification procedure in close geographical and temporal proximity to the crime can be proper, even when the defendant is handcuffed.

 

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ALTHOUGH THE NOTICE OF THE INTENT TO PRESENT PSYCHIATRIC EVIDENCE DEMONSTRATING DEFENDANT’S LACK OF CAPACITY TO COMMIT ARSON WAS “1400 DAYS LATE,” THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ACCEPT THE LATE NOTICE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined the trial court abused its discretion in refusing to accept late notice of the intent to present psychiatric evidence as a defense to the arson charge. The defendant had been evaluated and treated for mental illness since childhood. When a new attorney was assigned to the defense, the notice of the intent to present psychiatric evidence was served “1400 days late.” The defense sought to introduce expert testimony to demonstrate defendant did not have the capacity to commit arson at the time of the offense:

We … hold that the trial court’s application of CPL 250.10 precluding Mr. Sidbury’s [defendant’s] psychiatric defense was an abuse of discretion. We have been clear that the governing principle animating CPL 250.10 is “procedural fairness and orderliness” with the intention of “eliminating the element of surprise” for the prosecution … . The statute formulates a procedure for defendants to serve notice of their intent to present psychiatric evidence that is “prepared and presented manageably and efficiently,” such that it allows for “proper notification, adversarial examination, and preclusion when appropriate” … . * * *

Although the statute provides for service of the notice within 30 days of the defendant’s not-guilty plea, the court has discretion to permit service of a late notice “[i]n the interest of justice and for good cause shown” … . Late notice is permissible “at any time prior to the close of evidence”—including after trial has commenced  … .

The decision to permit late notice is within the discretion of the trial court … . That discretion, however, is “not absolute,” because “[e]xclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in [their] own defense” … . Instead, the trial court must “weigh [the defendant’s constitutional] right against the resultant prejudice to the People from the belated notice” … . People v Sidbury, 2024 NY Slip Op 03318, CtApp 6-18-24

Practice Point: Although service of notice of intent to present psychiatric evidence as a defense should be made within 30 days of the not-guilty plea, the court has the discretion to accept late notice at any time prior to the close of evidence (because the constitutional right to present a defense is at stake).

 

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THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s burglary conviction on ineffective assistance grounds, determined defense counsel should have insisted on a jury instruction which reflected the crime charged in the indictment. The indictment alleged defendant entered the victim’s apartment with the intent to hold a knife to the victim’s throat. The jury was instructed that it need only find defendant unlawfully entered and remained in the victim’s apartment with the intent “to commit a crime” with no mention of holding a knife to the victim’s throat. At trial whether defendant possessed a knife was contested and defendant was acquitted of criminal possession of a weapon and menacing:

In its charge to the jury, County Court made no mention of the People’s theory of the crime as limited by the indictment. The court charged, with respect to the intent element, that the People must prove beyond a reasonable doubt that defendant entered or remained in the building “with the intent to commit a crime inside the building,” without specifying the intended crime. Defense counsel did not seek a tailored instruction limited to the theory in the indictment.

“There is no requirement that the People allege or establish what particular crime was intended,” to secure a conviction for burglary … . However, “[i]f the People . . . expressly limit[ ] their theory of the ‘intent to commit a crime therein’ element to a particular crime, then they . . . have . . . to prove that the defendant intended to commit that crime” … .

Here, defense counsel failed to seek an appropriately tailored instruction to the jury on burglary in the second degree or object to the burglary charge given. Defense counsel thereby permitted the jury to convict defendant upon a theory of the intent element that was not set forth in the indictment … . People v Mcclendon, 2024 NY Slip Op 03260, Fourth Dept 6-14-24

Practice Point: If the burglary count in the indictment charges that defendant unlawfully entered the victim’s apartment to “hold a knife to the victim’s throat,” the jury instruction should match the language in the indictment. Here the jury was instructed it need only find that defendant entered the apartment “to commit a crime” with no mention of a knife. Whether there was a knife was contested at trial and defendant was acquitted of criminal possession of a weapon and menacing. Under those facts, defense counsel was ineffective for failing to request a jury instruction which matched the knife-related crime charged in the indictment.

 

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OVER A TWO-JUSTICE DISSENT, THE MATTER WAS SENT BACK FOR A RULING ON WHETHER THE PEOPLE COMPLIED WITH THEIR DISCOVERY OBLIGATIONS RE: LAW ENFORCEMENT DISCIPLINARY RECORDS (FOURTH DEPT).

The Fourth Department, sending the matter back for a ruling on whether the People complied with their discovery obligations, over a two-justice dissent, noted that the People cannot use a “screening panel” to review law enforcement disciplinary records:

Defendant … contends that the court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30). In particular, he contends that the People’s failure to disclose existing disciplinary records of potential law enforcement witnesses for use as impeachment materials … rendered any certificate of compliance (COC) filed pursuant to CPL 245.50 improper and thereby rendered any declaration of trial readiness made pursuant to CPL 30.30 illusory and insufficient to stop the running of the speedy trial clock. As the Court of Appeals recently stated in People v Bay, “the key question in determining if a proper COC has been filed is whether the prosecution has ‘exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery’ ” … . Due diligence “is a familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives” (id. [internal quotation marks omitted]). “[W]hether the People made reasonable efforts sufficient to satisfy CPL article 245 is fundamentally case-specific, as with any question of reasonableness, and will turn on the circumstances presented” … . “[C]ourts should generally consider, among other things, the efforts made by the prosecution and the prosecutor’s office to comply with the statutory requirements, the volume of discovery provided and outstanding, the complexity of the case, how obvious any missing material would likely have been to a prosecutor exercising due diligence, the explanation for any discovery lapse, and the People’s response when apprised of any missing discovery” … . Although the statute does not require a ” ‘perfect prosecutor,’ ” the Court emphasized that the prosecutor’s good faith, while required, “is not sufficient standing alone and cannot cure a lack of diligence” … . People v Sumler, 2024 NY Slip Op 03307, Fourth Dept 6-14-24

Practice Point: A “screening panel” cannot be used to determined what law enforcement disciplinary records must be supplied to the defense in discovery.

Practice Point: The People’s failure to comply with discovery obligations may render the certificate of compliance improper and the ready-for-trial announcement illusory, warranting dismissal on speedy trial grounds.

 

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THE PEOPLE DID NOT EXERCISE DUE DILIGENCE BEFORE STATING IN THE CERTIFICATE OF COMPLIANCE (COC) THAT COMPLAINANT DID NOT HAVE A CRIMINAL RECORD AND ANNOUNCING READINESS FOR TRIAL; IF DEFENSE COUNSEL KNEW OF COMPLAINANT’S CRIMINAL RECORD, THE DEFENSE WAS STATUTORILY REQUIRED TO ALERT THE PEOPLE TO THE DEFECT IN THE COC; MATTER REMITTED FOR DETERMINATION OF THE SPEEDY-TRIAL MOTION; EXTENSIVE TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People, who initially erroneously asserted the complainant did not have a criminal record, did not comply with their discovery obligations and therefore the initial certificate of compliance (COC) and ready-for-trial announcement were illusory. The matter was sent back for the court to determine the motion to dismiss on speedy-trial grounds. On remittal County Court is to consider whether defense counsel met the statutory requirement that the defense alert the People to any defects in the COC of which defense counsel is aware. The two-justice dissent argued the People had exercised due diligence to determine whether the complainant had a criminal record and that, therefore, the initial COC indicating she had no convictions was not improper:

[The People’s] [r]eliance on the report provided by the OCSO [Ontario County Sheriff’s Office] may have been in good faith, but “while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence” … . The DA’s office, as a qualified agency entitled to access such information maintained pursuant to statute by DCJS [New York State Division of Criminal Justice Services], did not mention any pre-COC attempts to obtain the complainant’s criminal history record from DCJS (see Executive Law §§ 835 [9]; 837 [6]; 845-b), nor did the DA suggest that the People, prior to filing the initial COC, ever checked their own files to determine whether the complainant—their prime witness on whose testimony the success of the prosecution would depend—had a criminal history. Instead, the People relied entirely on a non-DCJS report provided by the OCSO that appeared to have been prepared by an unidentified third-party responsible for running background checks, and the People did not independently check the complainant’s repository to determine whether the complainant had a criminal history until prompted by defense counsel’s request for a judicial subpoena, at which point the People easily obtained and disclosed the complainant’s certificates of conviction … . Under these circumstances, we conclude that the People’s explanation for the discovery lapse was insufficient … .

… We … remit the matter to County Court to determine whether the People were ready within the requisite time period … , including the applicability and effect, if any, of defendant’s obligation under CPL 245.50 (4) (b)—which became effective during the pendency of the prosecution—to notify or alert the People to the extent he was aware of a potential defect or deficiency related to the COC, which awareness was a disputed issue before the court … . People v Mitchell, 2024 NY Slip Op 03256, Fourth Dept 6-14-24

Practice Point: The People must exercise due diligence in providing discovery. Here the failure to contact the NYS Division of Criminal Justice Services to determine whether the complainant had a criminal record rendered the ready-for-trial announcement illusory (the accompanying certificate of compliance erroneously stated the complainant had no prior convictions).

Practice Point: Defense counsel has a statutory duty to report to the People any defects in the certificate of compliance of which the defense is aware. Here it was alleged defense counsel knew of the complainant’s criminal record and did not alert the People. The court may consider the failure to notify the People of a defect in the certificate of compliance in determining a speedy-trial motion.

 

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DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed defendant’s conviction after he was tried in absentia. Defendant was properly denied a request for new counsel. Defendant then directed his attorney not to participate in the trial and defendant did not attend the trial. Defense counsel did not participate, except to make a motion for a trial order of dismissal outside the presence of the jury. The two-justice dissent would have reversed on ineffective assistance grounds, concluding that defense counsel should have participated in the trial, despite defendant’s directive:

Defendant contends that he was denied effective assistance of counsel. We reject that contention inasmuch as defendant waived the right to effective assistance of counsel by directing defense counsel not to participate in the proceedings … . * * * When the court had defendant brought into the courtroom and informed him that he had the right to be present for trial and participate in his defense, defendant again objected to the entire proceeding, reiterated that he had fired defense counsel, refused to answer the court’s questions, and renewed his request for substitute counsel. When the court responded that defendant would not receive another attorney but had the right to proceed pro se, defendant left the courtroom. Defense counsel subsequently informed the court that he intended to follow defendant’s directive not to participate in the proceedings. The trial was then held in defendant’s absence. Defense counsel was present but did not participate, except to move, outside the presence of the jury, for a trial order of dismissal.

We conclude that, under these circumstances, defendant waived his right to effective assistance of counsel … . Defendant’s “desire to prevent counsel’s participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional right to a fair opportunity to defend against the State’s accusations” (id. [internal quotation marks omitted]), and he must therefore “accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices” … . People v Lewis, 2024 NY Slip Op 03245. Fourth Dept 6-14-24

Practice Point: Defendant did not attend the trial and directed his attorney not to participate in the trial. Defense counsel did not participate. The majority held defendant had waived his right to effective assistance. A two-justice dissent argued defense counsel’s failure to participate constituted ineffective assistance and would have ordered a new trial.

 

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ABSENT SELF-INTEREST OR SELF-DEALING, AN ATTORNEY CAN NOT BE LIABLE TO A THIRD PERSON FOR INDUCING THE CLIENT TO BREACH A CONTRACT WITH THAT THIRD PERSON (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the attorney’s (Treco’s) inducing his client (Reynolds) to breach a contract with a third person is not actionable:

“[I]nasmuch as the relationship created between an attorney and his [or her] client is that of principal and agent, an attorney is not liable for inducing his [or her] principal to breach a contract with a third person, at least where he [or she] is acting on behalf of his [or her] principal within the scope of his [or her] authority” … . “Absent a showing of fraud or collusion, or of a malicious or tortious act, an attorney is not liable to third parties for purported injuries caused by services performed on behalf of a client or advice offered to that client” … . Here, the Treco defendants demonstrated, prima facie, that Treco was acting on Reynolds’s behalf and within the scope of Treco’s authority as Reynolds’s attorney … . In opposition, the plaintiffs failed to raise a triable issue of fact. The evidence cited by the plaintiffs did not support a finding that Treco’s acts in representing Reynolds were motivated by any self-interest or self-dealing or that the acts personally benefitted Treco … . Kugel v Reynolds, 2024 NY Slip Op 03173, Second Dept 6-12-24

Practice Point: Absent self-interest or self-dealing, and attorney is not liable to a third person for inducing a client to breach a contract with that third person.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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A SANDOVAL RULING ADDRESSED THE ADMISSIBILITY OF LIMITED REFERENCE TO DEFENDANT’S PRIOR CONVICTION ON CROSS-EXAMINATION; AT THE TIME OF THE ALLEGED RAPE, THE DEFENDANT TOLD THE VICTIM HE HAD SPENT SEVERAL YEARS IN PRISON; WITHOUT SEEKING A PRIOR VENTIMIGLIA RULING, THE PEOPLE INFORMED THE JURY ABOUT DEFENDANT’S “YEARS IN PRISON” STATEMENT TO THE VICTIM IN THE OPENING; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined the prosecutor’s introduction of a statement defendant made to the victim about his prior incarceration warranted reversal of defendant’s rape conviction. The prosecutor had not sought a prior “Ventimiglia” ruling on the admissibility of the statement. The statement was the subject of a prior Sandoval ruling which allowed limited reference to the prior conviction in cross-examination of the defendant. The trial judge, after hearing argument on the “Ventimiglia” issue after the statement had been introduced, determined the statement would have been ruled admissible had a prior request for a ruling been made:

In ruling on the People’s proffer, County Court fashioned a Sandoval compromise that limited the scope of questioning to the existence of the conviction and when it occurred, with no information about “the title, the classification, the violent nature under the Penal Law [or] the sentence . .. as well as underlying facts, unless the defense were to open the door with regard to those issues.” In spite of that ruling, in their opening statement, the People stated that, during the encounter but prior to any sexual assault, defendant “disclosed something unexpected, something that jarred [the victim]”; specifically, that “he had spent several years in prison.” * * *

We find that the People’s introduction of the statement referencing defendant’s prior incarceration without first seeking an advanced Ventimiglia ruling was improper … . While County Court’s Sandoval compromise was limited to the introduction of such evidence on cross-examination, it directly addressed the proof at issue; specifically, the allowable reference to defendant’s prior conviction. To this point, the People’s contention that the evidence was not subject to a prior ruling as it was part of the criminal conduct itself runs contrary to the fact that the Sandoval proffer on this exact evidence before trial reflected that it was subject to a discretionary determination as to whether the probative value outweighed the risk for real prejudice. Thus, the People effectively deprived defendant of the benefit of such analysis prior to introduction of the evidence by circumventing the Sandoval ruling … . People v Osman, 2024 NY Slip Op 03106, Third Dept 6-6-24

Practice Point: Here, at the time of the alleged rape, defendant told the victim he had spent several years in prison. Although the People sought a Sandoval ruling on the admissibility of evidence of defendant’s prior conviction during defendant’s cross-examination, the People did not seek a “Ventimiglia” ruling on the admissibility of such evidence in its direct case. The People’s reference to defendant’s statement in their opening was deemed reversible error.

 

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