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Court Should Not Have Ruled Defendant Could Be Cross-Examined About His Prior Possession of Guns Under Sandoval—Possession of Guns Has No Bearing on Credibility

Although the error was deemed harmless, the Second Department noted that defendant’s prior conduct of possessing guns should not have been ruled a topic of proper cross-examination of the defendant. Gun possession has no relationship to credibility, which is the sole concern under Sandoval:

We agree with the defendant that the Supreme Court improvidently exercised its discretion in determining, after a Sandoval hearing (see People v Sandoval, 34 NY2d 371), that the People could inquire about the defendant’s prior conduct of possessing guns. Whereas “[c]ommission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness . . . will usually have a very material relevance, whenever committed” (id. at 377), the fact that the defendant had possessed guns on a prior occasion had little bearing on his credibility … . People v Anderson, 2015 NY Slip Op 06355, 2nd Dept 7-29-15

 

People’s Failure, at a Reconstruction Hearing, to Prove Defendant Was Present for the Sandoval Hearing Required Reversal and a New Trial

The Fourth Department determined the People, at a reconstruction hearing, had failed to prove the defendant was present during a Sandoval hearing.  The conviction was therefore reversed and a new trial was ordered. People v Walker, 2014 NY Slip Op 03411, 4th Dept 5-9-14

 

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Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examinated about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

The People sought the court’s permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant’s physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant’s credibility. Despite defendant’s objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant’s previous assault was “relevant” to “show that [defendant] can be physically aggressive” and, additionally, that such proof would speak to defendant’s anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

Based upon County Court’s authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant’s prior assault bore no relation to defendant’s credibility, but rather served solely to illustrate defendant’s propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries … . Accordingly, as defendant’s guilt was not overwhelmingly established by the proof presented at trial and we “cannot say that there is no reasonable possibility that the error might have contributed to defendant’s conviction,” the judgment must be reversed and the matter remitted for a new trial … . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

Stop and Investigative Detention of Defendant Was Proper Under DeBour Analysis/Defendant’s Absence from Initial Sandoval Conference Cured by His Presence at a Subsequent Sandoval Hearing/Defendant’s Sentence Reduced Based In Part on a Much Lower Sentence Attached to a Plea Offer

The Fourth Department determined that the arresting officer had enough information about the defendant’s behavior to justify stopping the defendant after he left a store with a plastic garbage bag (which turned out to be full of shirts on hangers).  The court explained and applied the DeBour criteria for street stops and investigative detention.  The court further determined that defendant’s absence from a discussion in chambers of the prior crimes about which the defendant could be questioned if he testified (a Sandoval hearing) was not reversible error because the same discussion was later held on the record in defendant’s presence.  The Fourth Department reduced defendant’s sentence, who was found to be a persistent felony offender, from 20 to 15 years, noting that he was a non-violent serial shoplifter and he had been offered a plea deal with a sentence of two to four years.  With respect to the legality of stopping and detaining the defendant, the court wrote:

…[T]he deputy sheriff observed defendant carrying the bag while walking away from the scene of a recently reported larceny and in the direction of the suspected getaway vehicle. Although there were other people in the parking lot at the time, defendant was the only person walking toward that vehicle and the only person carrying a large garbage bag, which is unusual in that setting. Based on those observations, we conclude that the deputy sheriff had the requisite founded suspicion that criminal activity was afoot sufficient to justify the common-law right of inquiry … .

Moving to the next step of the DeBour analysis, we conclude that the deputy sheriff’s questions of defendant were reasonably related to the scope of the circumstances that justified the interference … . In response to the deputy sheriff’s first question, defendant offered the obviously false answer that there was nothing in the bag, which contained 61 shirts on hangers. That false answer, combined with the information already obtained by the deputy sheriff, gave rise to a reasonable suspicion that defendant had committed or was committing a crime … . It thus follows that the deputy sheriff acted lawfully in stopping and detaining defendant for investigative purposes. People v Ellison, 2015 NY Slip Op 00015, 4th Dept 1-2-15

 

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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

 

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Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied

In reversing the conviction, the Second Department determined that the acquittal on a rape count rendered the conviction on a related “endangering the welfare of a child” count “against the weight of the evidence.”  The Second Department also ruled that questions posed by defense counsel did not “open the door” to questioning by the prosecutor about prior “bad acts” which the trial court had ruled off limits in a Sandoval hearing.  The Second Department further ruled that an exception to the “rape shield law” was applicable and evidence the complainant had sex with defendant’s brother should have been admitted because it was relevant to a defense-theory alleging the brother had committed acts with which the defendant was charged. In ordering a new trial on one of the counts, the Second Department found that “the cumulative effect of certain trial errors deprived defendant of a fair trial…”.  In discussing the Sandoval error, the Second Department wrote: 

The purpose of a Sandoval hearing is to provide the defendant with “definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected,” so that the defendant can decide whether to take the witness stand … . 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 that ruling … . “When a defendant testifies to facts that are in conflict with the precluded evidence, he opens the door on the issue in question, and he is properly subject to impeachment by the prosecution’s use of the otherwise precluded evidence” … .

With respect to the rape shield law, the Second Department wrote:

A woman’s character or reputation for chastity is irrelevant to a charge that she was sexually abused … . Thus, the Rape Shield Law, codified in CPL 60.42, provides that “[e]vidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [i.e., sex offenses].” CPL 60.42 also provides five statutory exceptions. The first four exceptions allow the admission into evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances, which are inapplicable here … . The fifth exception, however, “vest[s] discretion in the trial court” … . Pursuant to CPL 60.42(5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42[5]…). The Court of Appeals has recognized that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense … . In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime, and will only harass the victim and possibly confuse the jurors … .  People v Fisher, 2013 NY Slip Op 01847, 2011-06453, Ind No 3421/09, 2nd Dept. 3-20-13​

 

 

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General Question Whether Defendant Was “A Law Abiding Person” Violated Sandoval Ruling and Required Reversal.

The prosecutor’s violation of the trial court’s Sandoval ruling required reversal and new trial.  Defendant was charged with rape.  Prior to trial defendant sought a Sandoval ruling that he could not be cross-examined about a nine-year-old conviction for sexual abuse.  The trial court ruled the defendant could not be cross-examined about the sexual abuse conviction because it did “relate to the two charges that are presently before the Court…” [and therefore could unduly prejudice the defendant in the eyes of the jury].   “The prosecutor, despite the court’s Sandoval ruling, asked a series of general questions regarding prior bad acts by defendant, and then questioned him specifically regarding the precluded prior conviction.”  The prosecutor started the prohibited line of questioning by asking the defendant whether he was “a law abiding person,” to which the defendant replied that he had been “for the last three years.” The Fourth Department held that the defendant’s answer did not “open the door” to questioning about the sexual abuse conviction, noting that “a defendant opens the door to cross-examination concerning previously-precluded evidence where…’defendant’s testimony was meant to elicit an incorrect jury inference’…”. The Fourth Department stated unequivocally that the “People may not elicit a general statement by asking questions that violate the Sandoval ruling for the sole purpose of circumventing that ruling.”  People v Snyder, 1370, KA 11-00316 Fourth Dept. 2-1-13

 

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