| People v Mohamed |
| 2016 NY Slip Op 08885 [145 AD3d 1038] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramy M. Mohamed, Appellant. |
Lynn W.L. Fahey (Chadbourne & Parke, LLP, New York, NY [Lisa Schapira],of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Joseph N. Ferdenzi, and Anish M. Patel of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered February 25, 2013, convicting him of attempted burglary in thesecond degree and criminal mischief in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant was convicted after a jury trial of attempted burglary in the seconddegree and criminal mischief in the fourth degree. The convictions arose from anincident, allegedly occurring in the early morning hours of May 11, 2012, when thedefendant entered the gated backyard of a multi-family home in Queens. One of thecomplainants testified that she was awakened by scratching sounds near the living roomwindow that faced the backyard of the apartment she shared with her husband. When sheopened the blinds, she observed the defendant standing on a table, pulling and bendingdown the corner of the screen that was outside the window. After she screamed for help,her husband opened the window and grabbed the defendant while she called the 911emergency number. The defendant was able to pull away and ran back around the house,jumping over a seven-foot gate, to get to the front yard, where the husband apprehendedand restrained him until police arrived. The screen was later found on the ground with aneight-inch gash in the top right corner.
At trial, the defendant testified that he was under the influence of alcohol andmarijuana at the time of the incident and was only looking for a secluded place to soberup at the time he entered the backyard through an unlocked gate. After entering, thedefendant testified that he saw the window and only peered inside to make sure no onecould see him resting.
The defendant contends that the evidence was legally insufficient to support hisconvictions and that the verdict was against the weight of the evidence. Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see [*2]People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 420 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
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 thedefendant testify on his own behalf, the People would be permitted to inquire about hisconviction of petit larceny on March 15, 2012, and his State of California conviction ofburglary in the third degree on April 30, 2008. Specifically, the court ruled that thePeople were limited to only eliciting testimony that the defendant had previously beenconvicted of a misdemeanor and felony, respectively, on those dates.
On cross-examination, the defendant testified that there were times in the past whenhe had been intoxicated and "ended up in the bushes" or "in the park" and that it waspossible for a drunk person to end up in someone's backyard. The prosecutor questionedthe 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 deniedentering a building, but after further questioning, which the Supreme Court allowed overdefense counsel's objection, he admitted that he had walked into a store that was closedbut had people in it. The prosecutor pressed further, and later asked the defendant, "Haveyou ever walked into a building that was completely closed to the public with no peopleinside of that building?" and the defendant responded, "I don't recall." The prosecutorthen asked if he had been convicted of a felony and the defendant replied affirmatively.The record reflects more than a half a dozen occasions when the People clearly violatedthe court's Sandoval ruling by repeatedly questioning the defendant concerningthe underlying facts of his prior burglary conviction. We agree with the defendant thatthe court erred in allowing the prosecutor to elicit testimony from the defendant thatrevealed some of the critical underlying facts from his prior burglary conviction (seePeople v Sandoval, 34 NY2d 371 [1974]).
Defendants who take the witness stand, like other witnesses, place their credibility inissue and, thus, may be cross-examined about past criminal or immoral acts relevant totheir credibility (see People v Fardan, 82 NY2d 638, 646 [1993]). The policyunderlying Sandoval is that the accused has the right to make an informed choiceconcerning whether he or she should take the witness stand (see id. at 646; People v Fisher, 104 AD3d868, 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, atrial court's authority to change its Sandoval ruling is limited once the defendanthas decided to testify in good-faith reliance on the court's pretrial ruling (see People vFardan, 82 NY2d 638 [1993]; People v Fisher, 104 AD3d 868 [2013]; People vGrant, 234 AD2d 475 [1996]). The defendant in this case was denied that rightwhen, after making what he believed to be an informed judgment and taking the witnessstand, the Supreme Court implicitly changed the ruling upon which he relied by allowingthe prosecutor to continue her course of prejudicial questioning despite repeatedobjections from defense counsel. The court's implicit change in its ruling after thedefendant had already taken the witness stand deprived the defendant of a fair trial (see People v Fisher, 104 AD3d868 [2013]; People v Grant, 234 AD2d 475 [1996]), and the defendant'ssubsequent motion for a mistrial should have been granted.
Contrary to the People's contention, the defendant did not open the door toquestioning about his prior burglary conviction. When a defendant testifies to facts thatare in conflict with the precluded evidence, he or she opens the door to questioningregarding that issue, and he or she is properly subject to impeachment by theprosecution's use of the otherwise precluded evidence (see People v Fardan, 82NY2d 638 [1993]). The defendant's testimony that he had passed out in bushes and parkswhile intoxicated on prior occasions did not mislead the jury, and it was not in conflictwith the facts of his underlying conviction (see id.; People v Fisher, 104 AD3d868 [2013]; People v Grant, 234 AD2d 475 [1996]).
The Supreme Court's error regarding the Sandoval ruling cannot beconsidered harmless. Such "error is only harmless when there is overwhelming proof ofthe defendant's guilt and no significant probability that the jury would have acquitted thedefendant were it not for the error" (People v Santiago, 17 NY3d 661, 673-674 [2011]; seePeople v Crimmins, 36 NY2d 230, 242 [1975]). [*3]Here, the prosecutor's improper questioning of thedefendant concerning his prior burglary conviction was not harmless, in view of theimportance of the defendant's credibility and the less than overwhelming proof of hisguilt. Moreover, it cannot be said that there was no significant probability that the jurywould have acquitted the defendant if it had not been for the error (see People v Loiseau, 140AD3d 1190, 1191 [2016]; People v Wilkens, 177 AD2d 678, 679 [1991]; cf. People v Borgella, 144AD3d 1048 [2d Dept 2016]). Accordingly, the judgment must be reversed and anew trial ordered.
In light of our determination, we need not reach the defendant's remainingcontentions. Dillon, J.P., Roman, Miller and LaSalle, JJ., concur.