| People v Calderon |
| 2017 NY Slip Op 00479 [146 AD3d 967] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose R. Calderon, Appellant. |
Lynn W. L. Fahey, New York, NY (Kathleen Whooley and Patricia Pazner ofcounsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E.Ross, and Michael L. Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Cyrulnik, J.), rendered June 27, 2013, convicting him of rape in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion,and a new trial is ordered.
The defendant contends that the evidence was legally insufficient to support hisconviction 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 People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 420[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant contends that the prosecutor's redirect examination of a police officerwho took the complainant's statement impermissibly bolstered the complainant'stestimony by introducing her prior consistent statement made at the time of thedefendant's arrest. This contention is unpreserved for appellate review. In any event, theSupreme Court properly allowed the prosecutor to elicit the substance of thecomplainant's statement on redirect examination for the purpose of explaining andclarifying the police officer's prior testimony that was introduced on cross-examination(see People v Ochoa, 14NY3d 180, 186-187 [2010]; People v Torre, 42 NY2d 1036, 1037 [1977];People v Holden, 82 AD3d792, 793 [2011]; People vMelendez, 51 AD3d 1040 [2008]; People v Williams, 43 AD3d 414 [2007]; People vJohnson, 296 AD2d 422 [2002]).
A Sandoval hearing (see People v Sandoval, 34 NY2d 371 [1974])was held prior to trial, [*2]after which the Supreme Courtruled, in part, that, should the defendant testify on his own behalf, the People would bepermitted to inquire about his conviction for robbery in the first degree on December 8,1986. Specifically, the court ruled that the People could cross-examine the defendantabout the fact of the conviction and some of the underlying facts of the robbery,including that the defendant placed a knife to the complainant's neck, but not the fact thatthe defendant threatened to kill the complainant. The court reasoned that, while it wasalleged in the present case that the defendant had placed a knife to the complainant'sneck during the commission of the rape, the similarity of the alleged conduct should notshield the defendant from cross-examination. We agree with the defendant that the courtimprovidently exercised its discretion in making its Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]; People v Wright, 121 AD3d 924, 928 [2014]; People v Brothers, 95 AD3d1227, 1228-1229 [2012]; People v Finger, 166 AD2d 714, 716 [1990];People v Moore, 156 AD2d 394, 394-395 [1989]).
In Sandoval, the Court of Appeals recognized that "cross-examination withrespect to crimes or conduct similar to that of which the defendant is presently chargedmay be highly prejudicial, in view of the risk, despite the most clear and forceful limitinginstructions to the contrary, that the evidence will be taken as some proof of thecommission of the crime charged rather than be reserved solely to the issue of credibility"(People v Sandoval, 34 NY2d at 377). The Court reasoned that "a balance musthere be struck between the probative worth of evidence of prior specific criminal, viciousor immoral acts on the issue of the defendant's credibility on the one hand, and on theother the risk of unfair prejudice to the defendant, measured both by the impact of suchevidence if it is admitted after his testimony and by the effect its probable introductionmay have in discouraging him from taking the stand on his own behalf" (id. at375). The Court further reasoned that when considering whether the impeachmentevidence should be admitted, and whether the defendant will be deprived of a fair trial,courts should consider whether "the testimony to be elicited in cross-examination [will]have a disproportionate and improper impact on the triers of fact" and whether "theapprehension of its introduction [would] undesirably deter the defendant from taking thestand and thereby deny the jury or court significant material evidence" (id. at376).
"In weighing prejudice to the defendant's right to a fair trial, an importantconsideration may be the effect on the validity of the fact-finding process if thedefendant does not testify out of fear of the impact of the impeachment testimony forreasons other than its direct effect on his credibility—as where the defendantwould be the only available source of material testimony in support of his defense"(id. at 378). The inquiry, as the Court provided, "must always depend on theindividual facts and circumstances of each case" (id. at 375).
A brief recitation of the facts and circumstances of this case is required for ouranalysis of the Supreme Court's Sandoval ruling. The defendant was accused offorcibly raping the complainant at knifepoint. This incident was alleged to have occurredsometime between November 2006 and January 2007, in the defendant's apartment. Atthat time, the complainant was suffering from drug addiction and smoked crack cocaineevery day. Although she had been diagnosed with bipolar schizophrenia disorder, thecomplainant was not taking any medication for her condition at that time because shewas homeless and living on the streets. On a day during this time frame, the complainantencountered the defendant at a location in Brooklyn and he invited her to his apartmentso they could get high. The complainant smoked crack while in the defendant'sapartment, after which the defendant allegedly raped her at knifepoint. The complainantremained in the defendant's apartment until the following morning. The complainanttestified that, upon leaving the apartment, she saw two police officers and told them whathad happened, but that the officers did not take her seriously. Until 2011, thecomplainant made no other attempts to report the alleged incident. On December 28,2011, the complainant took her grandmother to Woodhull Hospital for an appointment.The complainant observed the defendant at the hospital, and thereafter she reported thealleged rape to the police. The defendant was subsequently arrested, and this prosecutionensued. The defendant did not testify at trial.
In determining the People's Sandoval application, the Supreme Court ruled,inter alia, that if the defendant elected to testify, he could be cross-examined on the factof his conviction for robbery in the first degree on December 8, 1986, as well as some ofthe underlying facts, including [*3]that he had placed aknife to the robbery complainant's neck during the commission of that crime.
While we recognize that, under Sandoval and its progeny, the mere similarityof crimes or conduct to the charge for which a defendant stands trial does notautomatically preclude inquiry, here, under the particular facts and circumstances of thiscase, a proper balancing of the probative value of the defendant's prior conduct ofplacing a knife to the robbery complainant's neck, in connection with the issue ofcredibility, against the risk of unfair prejudice to the defendant, should have resulted in aruling precluding the People's proposed line of questioning (see People v Anderson, 130AD3d 1055, 1056 [2015], lv granted 26 NY3d 1142 [2016]; cf. People v Grant, 7 NY3d421, 425 [2006]). Moreover, the error was not harmless (see People v Grant,7 NY3d at 423; People v Williams, 56 NY2d 236, 240-241 [1982]; People vCrimmins, 36 NY2d 230, 241-242 [1975]). The proof of the defendant's guilt was farfrom overwhelming, and the defendant was the only available source of materialtestimony in support of his defense (see People v Sandoval, 34 NY2d at 378).Inasmuch as the pretrial ruling affected the defendant's decision whether to testify anddenied the jury potentially significant material evidence, the Supreme Court'sSandoval ruling cannot be considered harmless (see People v Grant, 7NY3d at 424; People v Williams, 56 NY2d at 241).
The two cases most heavily relied upon by our dissenting colleague are, respectfully,distinguishable on the facts.
In People v Hayes (278 AD2d 592 [2000], revd 97 NY2d 203[2002]), the defendant was charged with rape in the first degree, coercion in the firstdegree, burglary in the second degree, unlawful imprisonment in the second degree, andassault in the third degree. The hearing court ruled that, if the defendant were to take thestand, he could be cross-examined on the existence and nature of various priorconvictions, some of which included sexual offenses. However, the court precluded thePeople from eliciting the underlying facts of those convictions (see id. at593-594). The Appellate Division, Third Department, reversed the judgment ofconviction, on the law, and held that the court erred in permitting cross-examinationregarding the nature of the defendant's prior similar crimes (see id.). The Court ofAppeals reversed the Appellant Division, and held that the Appellate Division erred inrequiring that cross-examination should have been limited to the mere existence, ratherthan the nature, of the defendant's prior convictions (see People v Hayes, 97NY2d at 208). The Court noted that the similarity of the defendant's prior convictions didnot require that impeachment should be limited only to the existence of those convictions(see id. at 208).
Here, however, the Supreme Court permitted cross-examination on the existence andnature of the defendant's conviction for robbery in the first degree, and also certainunderlying facts, including that the defendant placed a knife to the complainant's neckduring the commission of the robbery. In that this particular underlying fact was identicalto the complainant's allegation in this case as to what occurred during the rape, anyprobative value it may have had on the defendant's credibility was clearly outweighed byits potential prejudicial effect on the jury, based upon the particular facts andcircumstances of this case.
We recognize that, in certain instances, the prior commission of a particular crime ofcalculated violence, or of specified vicious or immoral acts by a defendant, can reveal awillingness on the defendant's part to place the advancement of his or her self-interestsahead of the interests of society, and therefore, that proof thereof may be relevant to thedefendant's credibility (see People v Sandoval, 34 NY2d at 377). Here, however,the likelihood that evidence that the defendant placed a knife to a complainant's neckduring the commission of a prior crime would have influenced the jury to believe that thedefendant had a propensity to commit the crime in the case at bar was great, and faroutweighed the likelihood that the jury would have considered the evidence only as itbore on the defendant's credibility.
In People v Levy (290 AD2d 565 [2002]), our determination that theSupreme Court providently exercised its discretion in ruling that the prosecution couldinquire into the defendant's prior knifepoint assault on a woman was based upon the factsand circumstances of that case. Since each case requires a balancing of its own particularfacts, our determination in Levy is not dispositive. Here, as previously indicated,the proof of the defendant's guilt was far from [*4]overwhelming, and the defendant was the only availablesource of material testimony in support of his defense. The Supreme Court's Sandovalruling in this case likely deterred the defendant from taking the stand, and therebydenied the jury potentially significant material evidence (see People v Sandoval,34 NY2d at 376; People v Moore, 156 AD2d at 395).
To suggest, as our dissenting colleague does, that the jury was not deprived ofsignificant, material evidence merely because the defendant's statement to the police wasintroduced into evidence during the People's case-in-chief, completely ignores acornerstone of the judicial process, that being the jury's ability to see and hear a witnesstestify, in this case the defendant, in order to assess his or her credibility and weigh his orher testimony. The suggestion also incorrectly presumes that the defendant's testimonywould have mirrored his statement to the police, and would not have contradicted thecontents of the statement, or the testimony related thereto by the People's witness.
Contrary to the view expressed by our dissenting colleague, our determination in thiscase that the Supreme Court improvidently exercised its discretion in making itsSandoval ruling was based upon our examination and consideration of all theindividual facts and circumstances of the case (see People v Sandoval, 34 NY2dat 375).
Accordingly, the judgment must be reversed, and a new trial ordered. Austin, Millerand LaSalle, JJ., concur.
Chambers, J.P., dissents, and votes to affirm the judgment, with the followingmemorandum: Prior to the commencement of trial, the People made an applicationpursuant to People v Sandoval (34 NY2d 371 [1974]), requesting that they bepermitted to inquire about the defendant's prior convictions for murder in the seconddegree, robbery in the first degree, disorderly conduct, unauthorized use of a vehicle,criminal possession of a controlled substance in the seventh degree, attempted petitlarceny, and two separate convictions for petit larceny.
Insofar as relevant to this appeal, defense counsel argued that since a knife allegedlywas used in this case, evidence of the defendant's prior convictions for murder in thesecond degree and robbery in the first degree, both of which also involved the use of aknife, would be overly prejudicial. The Supreme Court ruled, inter alia, that if thedefendant elected to testify, he could be cross-examined on the fact that he had beenconvicted of petit larceny and attempted petit larceny. The People could alsocross-examine him on the underlying facts of his conviction for robbery in the firstdegree, including the defendant's use of a knife but excluding the fact that the defendanthad threatened to kill the complainant. The court further ruled that the People could notcross-examine the defendant on the conviction for murder in the second degree in anyrespect, since the nature of that conviction would have a disproportionate effect on thejury.
The majority holds that the Supreme Court's Sandoval ruling was animprovident exercise of discretion insofar as it allowed the People to cross-examine thedefendant with respect to his use of a knife in connection with his prior conviction forrobbery in the first degree. Since I believe the court's Sandoval ruling was aprovident exercise of discretion, I respectfully dissent.
"[A] criminal defendant who chooses to testify, like any other civil or criminalwitness, may be cross-examined regarding prior crimes and bad acts that bear oncredibility, veracity or honesty" (People v Hayes, 97 NY2d 203, 207 [2002];see People v Sandoval, 34 NY2d at 376). In making a Sandoval ruling,the hearing court must strike a proper balance between the probative value of theevidence of prior crimes on the issue of credibility and "the risk of unfair prejudice to thedefendant, measured both by the impact of such evidence if it is admitted after histestimony and by the effect its probable introduction may have in discouraging him fromtaking the stand on his own behalf" (People v Sandoval, 34 NY2d at375).
[*5] The determination rests largelywithin the sound discretion of the hearing court (see People v Hayes, 97 NY2d at207; People v Walker, 83 NY2d 455, 458-459 [1994]; People vSandoval, 34 NY2d at 374). "A court may exclude the evidence entirely; 'limit [theprosecution's] inquiry to the mere fact that there has been a prior conviction; it may limitinquiry to the existence and nature of the prior conviction; or it may permit examinationinto the facts and circumstances underlying the prior conviction' " (People v Smith, 18 NY3d588, 593 [2012], quoting People v Hayes, 97 NY2d at 208).
The Court of Appeals has repeatedly "eschewed fixed rules to determine where todraw the line" and has "declined to prohibit cross-examination solely because of thesimilarity of prior acts to the crimes charged" (People v Hayes, 97 NY2d at208; see People v Smith, 18 NY3d at 594).
In Hayes, as here, the defendant was accused of rape in the first degree, hissole defense was lack of forcible compulsion, and the only witness who could havedisputed the complainant's testimony on lack of consent was the defendant himself(see People v Hayes, 278 AD2d 592, 593-594 [2000], revd 97 NY2d 203[2002]). The hearing court in Hayes had ruled that, if the defendant were to takethe stand, he could be cross-examined on his prior convictions for assault in the thirddegree, sexual abuse in the first degree, aggravated criminal sexual assault, andaggravated kidnapping. While the underlying facts of those convictions could not beelicited, the nature of the convictions would be revealed (see id. at 593). Inupholding the hearing court's Sandoval ruling, the Court of Appeals noted that"[n]either the similarity of defendant's prior convictions nor the alleged singularity of histestimony . . . required that impeachment be limited to the existence ofdefendant's prior convictions" (People v Hayes, 97 NY2d at 206). The Courtfurther observed that "the possible unavailability of other witnesses does not mandate aspecific outcome, as a hearing court may conclude that this factor increases theimportance of defendant's credibility as well as the importance of defendant's presenceon the witness stand" (id. at 208; see People v Lopez, 37 AD3d 496, 497 [2007]).
The majority's attempt to distinguish Hayes is unconvincing. Indeed, in thecontext of a rape trial in which the only defense is consent and the only witnesses are thedefendant and the complainant, it is difficult to imagine any more prejudicial revelationthan the fact that the defendant previously had been convicted of sexual abuse,aggravated criminal sexual assault, and aggravated kidnapping. Where, as inHayes, the prior convictions are nearly identical to the offenses for which thedefendant is on trial, disclosing the nature of the prior convictions is undoubtedly enoughto cause prejudice, regardless of whether the jury is also apprised of the underlying facts.In fact, the potential disclosure of a single prior use of a knife in this case seems far lessprejudicial than the proposed revelation, in Hayes, of the accused's multiple priorsexual offense convictions.
I am cognizant of the fact that the majority's reversal in this case is not made uponthe law, but solely "on the facts and in the exercise of discretion." However, holdings bythis Court that a Sandoval ruling constituted an "improvident exercise ofdiscretion" are exceedingly rare (see People v Anderson, 130 AD3d 1055 [2015], lvgranted 26 NY3d 1142 [2016]; People v Brothers, 95 AD3d 1227 [2012]; People vFinger, 166 AD2d 714 [1990]; People v Williams, 157 AD2d 760 [1990];People v Moore, 156 AD2d 394 [1989]), and I do not see what distinguishes thisparticular case from myriad other cases in which this Court, using its unique power toreview the exercise of discretion by the trial court, upheld Sandoval rulingsinvolving similar prior crimes or similar facts as provident exercises of discretion (see e.g. People v Rosado, 115AD3d 884 [2014] [prior convictions for petit larceny, trespass, and attempted petitlarceny, in prosecution for burglary]; People v Marcus, 112 AD3d 652, 653 [2013] [priorattempted robbery conviction, in prosecution for robbery and burglary]; People v Betancourt, 106AD3d 831, 832 [2013] [prior uncharged larcenies, in prosecution for robbery andmurder]; People v Lewis,101 AD3d 1154 [2012] [prior grand larceny conviction, in prosecution for robbery];People v Hicks, 84 AD3d1402 [2011] [prior assault conviction, in prosecution for assault]; People v Harris, 74 AD3d984 [2010] [prior robbery conviction, in prosecution for robbery]; People v Avila, 69 AD3d642, 642 [2010] [prior assault involving a weapon, in prosecution for criminalpossession of a weapon]; Peoplev Hayes, 44 AD3d 683, 683 [2007] [prior attempted robbery and robberyconvictions, in prosecution for robbery]; People v Fotiou, 39 AD3d 877 [2007] [prior convictionsfor falsely appearing as an attorney-at-law, in prosecution for grand larceny, fraud, andfalsely appearing as an attorney-at-law]; People v Lopez, 37 AD3d 496 [2007] [prior felony [*6]criminal possession of a weapon conviction, in prosecutionfor second degree robbery (displaying what appears to be a weapon)]; People v Lewis, 31 AD3d788, 789 [2006] [prior petit larceny and attempted robbery convictions, inprosecution for robbery]; Peoplev Dahlbender, 23 AD3d 493 [2005] [prior attempted robbery and petit larcenyconvictions, in prosecution for felony murder (robbery)]; People v Whitney, 287AD2d 585, 585 [2001] [prior attempted armed robbery conviction, in prosecution forarmed robbery and burglary]; People v Hilaire, 211 AD2d 642 [1995] [prioruncharged robbery committed the same night and in the same general location as thesubject robberies]).
In a rape case where, as here, the prosecution was expressly permitted to inquireabout a prior knifepoint assault, this Court upheld the trial court's Sandoval rulingas a provident exercise of discretion, reasoning that "[t]he defendant's past actsdemonstrated his willingness to place his own interests ahead of those of society, andwere relevant on the issue of his credibility" (People v Levy, 290 AD2d 565, 565[2002]). To summarily dismiss Levy, as does the majority, on the ground that"each case requires a balancing of its own particular facts" offers precious little by wayof guidance to future trial courts whose Sandoval rulings will be scrutinizedunder this Court's discretionary review power.
Indeed, from the majority's recitation of the facts, the only explanation forconcluding that the Supreme Court's Sandoval ruling was an improvidentexercise of discretion is that the prosecution's case against this defendant was weakbecause of the complainant's history of drug abuse and mental illness, as well as the lapseof time between the crime and the defendant's arrest. Such reasoning, however,improperly conflates the Sandoval analysis with the question of harmless error,and misconstrues the prejudice prong of the Sandoval inquiry.
In weighing the prejudice to the defendant's right to a fair trial, the touchstone is notthe perceived strength or weakness of the prosecution's case; rather, it is whether adecision by the defendant not to testify will deprive the factfinder of significant, materialevidence (see People vGrant, 7 NY3d 421, 424 [2006]; People v Sandoval, 34 NY2d at 378).Here, the majority overlooks the fact that although the defendant elected not to testify,his statement to the police, in which he explained that he had met the complainant "eightto ten times" at his house, and that he would usually have sexual relations with her andgive her "between 15 and 20 dollars," was admitted into evidence as part of the People'scase-in-chief. While the defendant's statement is not a substitute for his live testimony, itdid present the jury with a version of events that was fundamentally at odds with thecomplainant's trial testimony. At minimum, the complainant's testimony did not gounchallenged, even though the defendant elected not to testify. Thus, under the facts ofthis case, it is far from clear that the defendant's decision not to testify deprived thefactfinder of any significant, material evidence.
In weighing the probative value of the impeachment evidence against the likelyprejudice to the defendant, the Supreme Court in this case took care to exclude anyevidence of the defendant's prior murder conviction. Even with respect to the priorrobbery conviction, the court excluded any evidence that the defendant threatened thecomplainant's life. Taking into account the defendant's statement, as well as thecomplainant's own history of criminality, drug use, and prostitution—all of whichwere extensively explored during her testimony—the court providently exercisedits discretion in concluding that the defendant should not be shielded from impeachmentmerely because he chose to use a knife in committing prior crimes. I respectfullydissent.