People v. Cantave

• Citation: 21 N.Y.3d 374,2013 N.Y. Slip Op. 04723,971 N.Y.S.2d 237,993 N.E.2d 1257
• Parties: The PEOPLE of the State of New York, Respondent, v. Jean CANTAVE, Appellant.
• Decision Date: 25 June 2013
• Court: New York Court of Appeals

21 N.Y.3d 374
993 N.E.2d 1257
971 N.Y.S.2d 237
2013 N.Y. Slip Op. 04723

The PEOPLE of the State of New York, Respondent,
v.
Jean CANTAVE, Appellant.

Court of Appeals of New York.

June 25, 2013.

[971 N.Y.S.2d 238]

Lynn W.L. Fahey, Appellate Advocates, New York City (De Nice Powell of counsel), for appellant.

[971 N.Y.S.2d 239]

Richard A. Brown, District Attorney, Kew Gardens (William H. Branigan, Robert J. Masters and John M. Castellano of counsel), for respondent.

[21 N.Y.3d 377]OPINION OF THE COURT
Chief Judge LIPPMAN.

[993 N.E.2d 1260]The primary issue presented by this appeal is whether the court violated defendant's Fifth Amendment privilege against self-incrimination when it granted the People's request to cross-examine him about the underlying facts of a rape conviction that was then on direct appeal. For the reasons discussed below, we hold that a defendant with a conviction pending appeal may not be cross-examined in another matter about the underlying facts of that conviction until direct appeal has been exhausted.

Defendant was charged with second-degree and third-degree assault as a result of a confrontation outside his place of business at which only defendant, complainant Andre Elbresius, and Elbresius's wife were present. Defendant and Elbresius were neighbors and acquaintances. A few hours before their altercation, Elbresius had given defendant a ride in his car, and they had argued about defendant's unauthorized use of Elbresius's spare license plate. The argument escalated to a confrontation at defendant's place of business. Elbresius claimed that defendant was the sole aggressor, pushing and biting Elbresius on his finger and ear, for which he required surgery. Defendant claimed that Elbresius was the initial aggressor and hit defendant in the face with a gun, which he reported to a 911 emergency operator.

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, [21 N.Y.3d 378]and the sentence he received. After the defense 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 ( People v. Cantave, 83 A.D.3d 857, 921 N.Y.S.2d 278 [2d Dept.2011], lv. denied,17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011] ). Defendant was retried and acquitted.

Defense counsel also sought to admit defendant's 911 call, which recorded defendant seeking police assistance and reporting an attack by a man with a gun who was still at the scene. Counsel argued that the call should be admitted under either the excited utterance or present sense impression exception to the hearsay rule. Although the court acknowledged that of the two theories of admission, present sense impression would be the hearsay exception that would allow the call to be admitted, the court excluded the call, finding that defendant “had sufficient time to think about what he was going to say to 911.”

The Appellate Division affirmed (93 A.D.3d 677, 941 N.Y.S.2d 163 [2d Dept.2012] ), finding the Sandoval issue unpreserved, and in any event found that the admission of the underlying facts of defendant's rape conviction was not an abuse of [993 N.E.2d 1261]discretion. The court also held the 911 call properly excluded, finding it neither an excited utterance nor a present sense impression. A Judge of this Court granted

[971 N.Y.S.2d 240]

leave to appeal (19 N.Y.3d 958, 950 N.Y.S.2d 110, 973 N.E.2d 208 [2012] ), and we now reverse.

I.

As a threshold matter, we find the Sandoval issue preserved. To preserve an issue for review, counsel must register an objection and apprise the court of grounds upon which the objection is based “at the time” of the allegedly erroneous ruling “or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05 [2] ). After the defense rested but before either side presented closing remarks, defense counsel asked the court to reconsider its Sandoval ruling, specifically informing the court that the rape conviction was then “under appeal,” and asserting that defendant's Fifth Amendment privilege against self-incrimination [21 N.Y.3d 379]should preclude cross-examination about it. This objection was lodged at a time when the court had the “opportunity of effectively changing” its ruling (CPL 470.05[2] ), since neither side had yet presented closing remarks and the jury had not yet commenced deliberations ( People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782 [1974] [court has power to alter order of proof and, concomitantly, reopen the proof, at least until the jury commences deliberations]; CPL 260.30). Therefore, we may review the Sandoval issue on the merits.

II.

The privilege against self-incrimination, which “must be accorded liberal construction in favor” of the protection it affords the accused ( Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 [1951] ), allows him to not answer “official questions put to him in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings” ( Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 [1973] ). A defendant who elects to testify places his credibility at issue and may generally be cross-examined about past criminal or immoral acts that bear upon his credibility, veracity, or honesty ( People v. Bennett, 79 N.Y.2d 464, 468, 583 N.Y.S.2d 825, 593 N.E.2d 279 [1992] ), but he does not automatically waive the constitutional protection against cross-examination regarding pending criminal charges ( People v. Betts, 70 N.Y.2d 289, 292, 520 N.Y.S.2d 370, 514 N.E.2d 865 [1987] ).

In Betts, defense counsel objected to cross-examination about a pending, unrelated charge, asserting that, if questioned about it, Mr. Betts would invoke his Fifth...