People v. Colas

• Decision Date: 06 December 1994
• Citation: 206 A.D.2d 183,619 N.Y.S.2d 702
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary COLAS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 702

619 N.Y.S.2d 702

206 A.D.2d 183

The PEOPLE of the State of New York, Respondent, v. Gary COLAS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 6, 1994.

Charles D. Donohue, Jr., of counsel (Barry D. Leiwant, on the brief, Shanley & Fisher, P.C., and Philip L. Weinstein, attorneys), New York City, for defendant-appellant.

David J. Mudd, of counsel (Mark Dwyer, on the brief, Robert M. Morgenthau, attorney), New York City, for respondent.

Before WALLACH, J.P., and ASCH, RUBIN and WILLIAMS, JJ.

RUBIN, Justice.

Defendant was arrested on February 19, 1982 by New York City police officers for a rape which took place at approximately 5:15 a.m. on July 19, 1981. Prior to trial, defendant moved to suppress the victim's identification of him as her assailant. On November 28, 1984, Supreme Court conducted a Wade hearing and denied defendant's motion. Jury trial commenced on December 3, 1984 and, on December 7, the jury returned a guilty verdict on all counts. Defendant was sentenced on January 10, 1985 to concurrent terms of imprisonment totalling a minimum of 16 2/3 years and a maximum of 50 years.

By notice of motion dated October 9, 1992, defendant sought to vacate the judgment pursuant to CPL 440.10, which motion was denied by the Trial Justice on December 9, 1993. By order of this Court dated February 15, 1994, the appeal from the denial of defendant's CPL 440.10 motion was consolidated with the appeal from the judgment.

It took nearly two years for this case to come to trial. The complaint was filed on February 19, 1982, the date of defendant's arrest, and the indictment was returned on February 24, 1982. This indictment was superseded because the People failed to afford defendant the opportunity to testify before the Grand Jury in accordance with his request. By way of motion returnable on August 16, 1982, defendant sought to dismiss the superseding indictment, filed March 26, 1982. On December 9, 1982, Supreme Court granted the motion on the ground of prosecutorial misconduct before the Grand Jury because defendant had been improperly questioned about certain prior bad acts. A second superseding indictment was finally returned on January 28, 1983, charging defendant with rape in the first degree, sodomy in the first degree, attempted murder in the second degree, and attempted robbery in the first degree. Trial did not take place until the end of 1984. Despite the length of time that elapsed between the filing of the complaint and the commencement of trial and despite repeated invitations by the court to submit a motion to dismiss the indictment on speedy trial grounds and defense counsel's representations of his intention to do so (the last time at sentencing), no CPL 30.30 motion was ever made.

On this appeal, defendant contends that his conviction should be reversed because he was not present at a Sandoval hearing; because cross-examination into prior bad acts was conducted in bad faith and for the purpose of demonstrating his propensity to commit similar crimes; because the complainant's identification at a lineup and in court was procured by suggestive procedures; and because his defense did not meet even minimal standards of effectiveness.

Plaintiff's claim that he was excluded from the Sandoval hearing is based on the court's comment: "Let the record show that I have conferred with counsel regarding a Sandoval ruling." The People properly note that there is nothing in the record besides this equivocal remark that establishes either his presence or absence from the conference (People v. Kinchen, 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786; People v. Charleston, 54 N.Y.2d 622, 623, 442 N.Y.S.2d 493, 425 N.E.2d 881; People v. Bharat, 204 A.D.2d 169, 614 N.Y.S.2d 113, lv. denied 84 N.Y.2d 822, 617 N.Y.S.2d 142, 641 N.E.2d 163; People v. Bagarozy, 182 A.D.2d 565, 566, 582 N.Y.S.2d 424, lv. denied 80 N.Y.2d 901, 588 N.Y.S.2d 826, 602 N.E.2d 234).

This is not, however, the end of the Sandoval analysis. Defendant's next point brings up for review whether the prosecutor made inappropriate use of prior convictions and therefore violated the scope of the court's ruling. There is no dispute that defendant was properly asked about a prior conviction for attempted assault, a class B misdemeanor, for which he received a sentence of probation. At issue is an alleged youthful offender gun conviction, the facts underlying which, the court ruled, could be used to impeach defendant's credibility should he take the stand. The court noted that "the District Attorney does not have the full background material relating to the Y.O." and made its ruling conditional on submission of material to "completely support what the District Attorney has said to me regarding that Y.O. conviction". The Assistant District Attorney assured the court, "I have it. It's just in the possession of my assistant this morning."

At trial, the prosecutor proceeded to question defendant about this attempted armed robbery of a cab driver, in which defendant denied any involvement. Only after defendant testified both that he had known the cab driver for many years and that the charges had been dismissed did the prosecutor request a recess to unseal the court record. Although it conclusively established that defendant was exonerated of any wrongdoing, the jury was never informed of this fact. Defense counsel never requested any instructions, and the last word on the topic was the prosecutor's misleading question, "So your testimony is this afternoon that this case was dismissed; is that right?", to which defendant responded, "Yes, to the best of my recollection, the case was dismissed."

Defendant's contention that he was not present at the Sandoval hearing is certainly a logical conclusion to be drawn from the prosecutor's foray into obviously uncharted territory. Had defendant been present, he presumably would have availed himself of the opportunity to make "a meaningful contribution to the colloquy" by advising the court that the charges had been dismissed (People v. Favor, 82 N.Y.2d 254, 267, 604 N.Y.S.2d 494, 624 N.E.2d 631). But even if it is conceded that the record does not support defendant's exclusion from the hearing, the use made of this supposed conviction is clearly contrary to the condition imposed by the court and, thus, exceeded the scope of the Sandoval ruling (see, People v. Owens, 203 A.D.2d 106, 610 N.Y.S.2d 485).

Having violated the ruling in a manner that obviated any motion to preclude use of the alleged crime on cross-examination, a motion that the court had expressly reserved defendant's right to make, the prosecutor made absolutely no attempt to minimize the prejudice resulting from the introduction of evidence of an uncharged crime. As noted in People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981], evidence of uncharged crimes is excluded because jurors will tend to " 'believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime' " (quoting People v. Molineux, 168 N.Y. 264, 313, 61 N.E. 286) and so tend to convict upon lesser proof than required. The exclusionary rule affording "protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged" (id.). However, the burden is placed upon the prosecutor to supply the court with a basis for its introduction. "When a prosecutor, knowing that such evidence is to be presented, waits until objection is made when it is offered during trial before informing the court of the basis upon which he considers it to be admissible, there is unfairness to the defendant, even if his objection is sustained, in view of the questionable effectiveness of cautionary instructions in removing prior crime evidence from consideration by the jurors" (People v. Ventimiglia, supra, at 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59).

The prejudice to defendant from cross-examination concerning the alleged youthful offender crime is apparent. Like the crime charged, it was an assault committed with a handgun during which the victim was grabbed around the neck and threatened with physical injury. The effect of the prosecutor's inquiry was to suggest to the jurors that defendant had the propensity to commit an assault of the kind alleged in the indictment. The prosecutor's dereliction of her responsibility to avoid such prejudice in the first instance is exacerbated by her failure to attenuate its impact by informing the jurors of the facts disclosed in the unsealed record.

Not content to have confronted defendant with one uncharged crime, the prosecutor immediately proceeded to question him about another. She phrased her questions to defendant to suggest that he "grabbed a woman", who was a fellow student at a school he attended, and "dragged" her "to a spot further down in the hallway to a corner in a secluded part of that hallway".

The prejudicial effect of this line of inquiry clearly outweighed any probative value it may have possessed in assessing defendant's credibility as a witness (see, People v. Schwartzman, 24 N.Y.2d 241, 247-248, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). Discussion at a bench conference reveals that no arrest resulted from this asserted assault. The school never reported it, and it was unknown whether any internal disciplinary action was taken against defendant as a result. Finally, the court was told that the alleged victim had no recollection of the incident, which was recounted to an investigator by an administrator at the school.

Although it allowed the prosecutor to question defendant about this matter, the court acknowledged that "these allegations would be unusually damaging" and limited the extent of inquiry. The prosecutor, however, violated the restriction by ignoring the court's explicit direction that "[t]he answer to...