New York Criminal Defense: Prosecutor's Improper Questioning of the defendant concerning his pri


Part of the fairness in a criminal trial is that the prosecutor cannot use certain prior convictions against a criminal defendant without putting the criminal defendant on notice and a hearing had. The Second Department reviews the criminal conviction and finds that "the [lower] court erred in allowing the prosecutor to elicit testimony from the defendant that revealed some of the critical underlying facts from his prior burglary conviction." (citing People v Sandoval, 34 NY2d 371 [1974]).

Before Sandoval, restraints were placed on the cross-examination of defendants for reasons other than credibility. See People v. Moore, 20 App. Div.2d 817, 248 N.Y.S.2d 739, 740-41 (2d Dep't. 1964) (evidence of prior crimes not admissible to show propensity or predisposition for commission of crime for which a defendant is being tried); see also People v. Zackowitz, 254 N.Y.192, 172 N.E. 466 (1930) (district attorney may not probe too far into details of prior crime in an effort to paint a picture of professional criminality). However, on cross-examination or on direct, the prosecutor retains the right to introduce evidence of prior specific criminal acts. See C.P.L. §60.40 (3) (McKinney 1971) (prior crimes evidence admissible to establish element of the crime). See also N.Y. C.P.L. §60.40 (2) (McKinney 1971) (prior crimes evidence admissible to rebut character evidence introduced by a defendant).

The defendant was convicted after a jury trial of (among other things) attempted burglary in the second degree. "At trial, the defendant testified that he was under the influence of alcohol and marijuana at the time of the incident and was only looking for a secluded place to sober up at the time he entered the backyard through an unlocked gate. After entering, the defendant testified that he saw the window and only peered inside to make sure no one could see him resting." The Court notes that "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 Defendant raises several challenges including a Sandoval violation:

A Sandoval hearing (see People v Sandoval, 34 NY2d 371 [1974]) was held prior to trial, after which the Supreme Court ruled, in part, that, should the defendant testify on his own behalf, the People would be permitted to inquire about his conviction of petit larceny on March 15, 2012, and his State of California conviction of burglary in the third degree on April 30, 2008. Specifically, the court ruled that the People were limited to only eliciting testimony that the defendant had previously been convicted of a misdemeanor and felony, respectively, on those dates.

Although instruction is clear as to what the people can inquire should the Defendant testify. This is what happened:

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 Second Department finds that "[t]he 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."

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 (see id. at 646; People v Fisher, 104 AD3d 868, 871 [2013]; People v Grant, 234 AD2d 475, 475-476 [1996]; People v Powe, 146 AD2d 718, 719 [1989]). 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 (see People v Fardan, 82 NY2d 638 [1993]; People v Fisher, 104 AD3d 868 [2013]; People v Grant, 234 AD2d 475 [1996]). 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 Supreme Court's error regarding the Sandoval ruling cannot be considered harmless. Such "error is only harmless when there is overwhelming proof of the defendant's guilt and no significant probability that the jury would have acquitted the defendant were it not for the error" (People v Santiago, 17 NY3d 661, 673-674 [2011]; see People v Crimmins, 36 NY2d 230, 242 [1975]). The Case is People v Mohamed, 2016 NY Slip Op 08885 [145 AD3d 1038) (2d Dep't. Dec. 28, 2016)


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