| People v Montoya |
| 2009 NY Slip Op 05156 [63 AD3d 961] |
| June 16, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisMontoya, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan,J.), rendered March 22, 2007, convicting him of attempted rape in the second degree, criminalsexual act in the second degree, sexual abuse in the second degree (three counts), andendangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial.
In 2006, the defendant, a neighborhood handyman, was arrested and charged with engagingin acts of sexual misconduct with a 13-year-old girl, who lived in one of the apartments where heworked. In a pretrial omnibus motion, the defendant moved, inter alia, for a hearing pursuant toPeople v Sandoval (34 NY2d 371, 374 [1974]; see CPL 240.43), which thePeople consented to, stating that they would provide the defendant with notice of any prioruncharged criminal, vicious, or immoral acts which they intended to use at trial to impeach him.While the motion court granted the request for a Sandoval hearing and referred same tothe trial court, the trial court deemed the matter "resolved," and no hearing was held.
During the jury trial, the defendant elected to testify to his version of the events, explainingthat he worked shirtless in the complainant's apartment, while sanding and painting theapartment's bathroom at the complainant's mother's request, and that he did not commit anymisconduct with her 13-year-old daughter. In cross-examining the defendant, the People askedhim whether he had been born in Colombia, and whether he was a United States citizen. Defensecounsel objected, but the objection was overruled, and the defendant acknowledged his lack ofUnited States citizenship. The People then asked the defendant whether he was paid in cash forhis employment, and defense counsel also objected to that question. At a sidebar, defensecounsel explained that the prosecutor was improperly attempting to elicit testimony that thedefendant evaded his taxes, a prior bad act that required notice pursuant to Sandoval.The People countered that the defendant had no convictions, and that the tax question was acredibility issue once he took the stand. The court overruled the objection, forcing the defendantto testify as to his failure to pay taxes.
At the conclusion of the jury trial, the defendant was convicted of attempted rape in the[*2]second degree, criminal sexual act in the second degree,sexual abuse in the second degree (three counts), and endangering the welfare of a child. Thisappeal by the defendant ensued, in which he argues, inter alia, that the trial court "mishandled"the prejudicial testimony of one of his character witnesses, that the prosecutor improperlyimpeached him by eliciting testimony that he was not a United States citizen, and that he hadfailed to pay income taxes, that the evidence was insufficient to support one of the counts ofsexual abuse in the second degree, and that the verdict was against the weight of the evidence. Inopposition, the People contend, in essence, that the trial court's errors, if any, were harmless. Onthis record, we find that the defendant was denied a fair trial by the combination of the trialcourt's errors in limiting the defendant's cross-examination of key prosecution witnesses as wellas character witnesses, and in permitting the defendant to be improperly impeached in violationof People v Sandoval (34 NY2d at 374). Accordingly, we reverse the judgment and ordera new trial.
Essentially codifying People v Sandoval, Criminal Procedure Law § 240.43provides, in relevant part, that: "Upon a request by a defendant, the prosecutor shall notify thedefendant of all specific instances of a defendant's prior uncharged criminal, vicious or immoralconduct of which the prosecutor has knowledge and which the prosecutor intends to use at trialfor purposes of impeaching the credibility of the defendant" (see People v Grant, 7 NY3d421, 424 [2006]; People v Kello, 96 NY2d 740, 743-744 [2001]). The trial court, in itsdiscretion and in the interests of justice, must then determine whether and to what extent "theprejudicial effect of the admission of evidence thereof for impeachment purposes would so faroutweigh the probative worth of such evidence on the issue of credibility as to warrant itsexclusion" (People v Sandoval, 34 NY2d at 378).
The defendant correctly contended, and the People conceded, both at trial and on appeal, thatthey did not notify the defendant before trial of their intention to impeach him on uncharged orprior bad acts, including his failure to pay taxes. Despite the defendant's objection, the trial courtruled that Sandoval did not apply to prior bad acts, only convictions, and allowed thePeople to impeach the defendant on his failure to pay taxes without any prior notice (seePeople v Beasley, 80 NY2d 981, 982 [1992]; People v Marrow, 301 AD2d 673, 675[2003]). Under these circumstances, the trial court committed error in allowing the People tocross-examine the defendant about his failure to pay taxes without conducting a pre-trialSandoval hearing (see People v Marrow, 301 AD2d at 675 [error in permittingquestioning a welfare-recipient defendant on failure to report income to Department of SocialServices, without prior Sandoval hearing]; People v Beasley, 184 AD2d 1003,1003-1004 [1992] [error in permitting cross-examination of defendant about prior uncharged badacts]). Moreover, the court's failure to conduct a proper pretrial inquiry may have affecteddefendant's decision to testify at trial (see People v Beasley, 184 AD2d at 1003-1004).
Compounding this error, the trial court improvidently struck the testimony of one of thedefendant's character witnesses Sandra Nery. The trial court had previously ruled that aletter/flyer, detailing the accusations against the defendant, which had been prepared anddisseminated by the complainant's mother, should not be referred to unless the defense wasprepared to have the letter/flyer introduced into evidence. However, during defense counsel'squestioning of Nery, the following occurred:
"Defense: Aside from this accusation, have you heard anything about [the defendant's]reputation regarding inappropriate sexual contact with children?
"Nery: Yes.
"Defense: And what is that?
"Nery: From a letter we received."
The People objected, and, at the court's express direction, Nery was asked outside thepresence of the [*3]jury, "does [the defendant] have a reputationfor a lack of inappropriate sexual conduct with children," to which she responded "No." Despitedefense counsel's request for an opportunity to elicit further testimony in front of the jury toclarify Nery's remarks, the trial court excused Nery, and told the jury that "for legal reasons only,the testimony of Ms. Nery is stricken, and she will not further appear." This ruling was error. Bystriking the entirety of the witness's testimony without explicitly instructing the jury to disregardthe stricken testimony or giving any other curative instructions, the trial court left the jury withdamaging negative reputation evidence of the defendant. This error, coupled with its unilateraldismissal of the witness, which impeded defense counsel's ability to develop her theory of thecase, and prevented her from clarifying Nery's testimony, deprived the defendant a fair trial(see People v Melendez, 227 AD2d 646 [1996]).
The trial court further improvidently exercised its discretion in curtailing defense counsel'scross-examination of key prosecution witnesses. It is well settled that, absent an improvidentexercise of discretion, "[t]he nature and extent of cross-examination is subject to the sounddiscretion of the Trial Judge" (People v Schwartzman, 24 NY2d 241, 244 [1969], certdenied 396 US 846 [1969]; see People v Scarola, 71 NY2d 769, 777 [1988]).However, "[a]s to those accused of crime, it should be too obvious to need reiteration thatrestrictions on the right to cross-examine key prosecution witnesses can deprive a defendant ofan important means of combating inculpatory testimony or at least demonstrating the existenceof a reasonable doubt as to guilt" (People v Gissendanner, 48 NY2d 543, 548 [1979];see Davis v Alaska, 415 US 308, 315-317 [1974]; Douglas v Alabama, 380 US415, 418 [1965]).
In light of the testimony of the complainant and her mother that the defendant was notpainting in the apartment and there were no tools present, the trial court improperly curtailedcrucial questioning of the mother by the defendant as to the location of his painting supplies onthe staircase outside of the complainant's apartment, which furnished a legitimate reason for thedefendant to be in the premises on March 16, 2006, and refused to permit defense counsel toelicit custom and habit testimony supporting the defense's contention that the defendant typicallyworked shirtless in performing painting jobs (see People v Lo Piccolo, 288 AD2d 913[2001] [evidence of defendant's habits "admissible to demonstrate specific conduct on aparticular occasion"] [internal quotation marks omitted]; People v Gonzalez, 100 AD2d852 [1984]).
Additionally, the trial court erred in not permitting defense counsel's cross-examination ofthe complainant and her mother as to whether they spoke to each other about the questionedincidents, given that the mother and complainant both testified as to certain information beingrelayed to the 911 operators and the police.
Finally, although the defendant's claim that the evidence was insufficient to support theconviction of one of the counts of sexual abuse in the second degree is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]), wereview this claim in the exercise of our interest of justice jurisdiction, and conclude that theevidence was legally insufficient to support that conviction for acts allegedly occurring inDecember 2005. Since the record is devoid of any evidence of inappropriate touching or sexualmisconduct during that time period (see People v Francis, 44 AD3d 788, 790 [2007];People v Smith, 31 AD3d 792 [2006]), the evidence did not show the elements of sexualabuse in the second degree during that period (see Penal Law § 130.00 [3];§ 130.60 [2]), and that charge must be dismissed.
Although we are satisfied, upon reviewing the record, that the verdict of guilt on theremaining counts was not against the weight of the evidence (see CPL 470.15 [5];People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d633 [2006]), we nevertheless "find the conclusion inescapable that the verdict of guilt in thiscase may not be the result of honest fact-finding," but rather the result of the combination oferrors by the trial court (People v Badine, 301 AD2d 178, 183 [2002]; see People vKass, 59 AD3d 77 [2008]; People v Cotterell, 7 AD3d 807 [2004]; People vHeman, 198 AD2d 434, 435 [1993]). In other words, it cannot be said that there is nosignificant probability that the verdict would have been different absent these errors (seePeople v Grant, 7 NY3d at 424; People v Crimmins, 36 NY2d 230, 241-242 [1975]).Accordingly, the judgment of conviction must be reversed, and a new trial is ordered(see CPL 470.20).
In view of the foregoing, we need not reach the defendant's remaining contentions. Mastro,J.P., Fisher, Angiolillo and Balkin, JJ., concur.