People v. Cunny, 2014–11394

• Court: New York Supreme Court Appellate Division
• Citation: 163 A.D.3d 708,80 N.Y.S.3d 457
• Docket Number: Index No. 9785/12,2014–11394
• Parties: The PEOPLE, etc., respondent, v. Charles CUNNY, appellant.
• Decision Date: 11 July 2018

163 A.D.3d 708
80 N.Y.S.3d 457

The PEOPLE, etc., respondent,
v.
Charles CUNNY, appellant.

2014–11394
Index No. 9785/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 1, 2018
Decided July 11, 2018

80 N.Y.S.3d 458

Paul Skip Laisure, New York, N.Y. (Leila Hull of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Michael Brenner of counsel), for respondent.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered November 20, 2014, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the morning of June 7, 2012, the complainant was struck in the back of the head with a metal bat as he was walking

80 N.Y.S.3d 459

past a construction site with his companion (hereinafter the complainant's companion). The complainant never saw the assailant, but the complainant recognized the assailant's voice as the voice of the defendant. The complainant and the defendant had known each other and had a contentious relationship since they were children. The complainant's companion, who had never met the defendant, saw the assailant and later identified the defendant as the assailant from a photographic array. The defendant was arrested and indicted for, inter alia, attempted assault in the first degree. The complainant's companion and the complainant alleged that, a few months after the June incident, the defendant approached them on the street to ask the complainant to drop the charges against the defendant. The defendant was later charged with witness tampering.

Following a pretrial Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), the Supreme Court granted the People's application to cross-examine the defendant, in the event he were to testify, about the underlying facts of the defendant's 2006 conviction for attempted coercion. The defendant did not testify. We agree with the defendant that the court should not have granted the application.

"[T]he credibility of witnesses generally may be challenged by their prior crimes or bad acts"; however, "permitting impeachment of a criminal defendant in this fashion risks both that the trier of fact will view such evidence as proof of propensity to commit the crime charged and that the defendant may be unduly deterred from giving testimony" ( People v. Hayes, 97 N.Y.2d 203, 207, 738 N.Y.S.2d 663, 764 N.E.2d 963, citing Jerome Prince, Richardson on Evidence § 6–410 at 399 [Farrell 11th ed 1995]; see People v. Smith, 18 N.Y.3d 588, 593, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Sandoval, 34 N.Y.2d at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413 ). A Sandoval determination "rests largely within the reviewable discretion of the trial court, to be exercised in light of the facts and circumstances of the particular case before it" ( People v. Hayes, 97 N.Y.2d at 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; see People v. Williams, 12 N.Y.3d 726, 727, 877 N.Y.S.2d 731, 905 N.E.2d 605 ; People v. Sandoval, 34 N.Y.2d at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ). Although "questioning concerning other crimes is not automatically precluded simply because the crimes to be inquired about are similar to the crimes charged" ( People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 ; see People v. Hayes, 97 N.Y.2d at 208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 ), " ‘cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility’ " ( People v. Ridenhour, 153 A.D.3d 942, 943, 60 N.Y.S.3d 449, quoting People v. Sandoval, 34 N.Y.2d at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; see People v. Brothers, 95 A.D.3d 1227, 1228–1229, 944 N.Y.S.2d 645 ). Thus, "a balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant's credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand on his own behalf" (

80 N.Y.S.3d 460

People v. Sandoval, 34 N.Y.2d at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; see People v. Ridenhour, 153 A.D.3d at 943, 60 N.Y.S.3d 449 ; People v. Calderon, 146 A.D.3d 967, 969, 47 N.Y.S.3d 43).

In this case, the facts underlying the 2006 conviction, which involved the threatened use of a hammer as a blunt force weapon, may have had some probative value on the defendant's credibility. Nonetheless, any such probative value was clearly outweighed by the potential prejudicial effect of those facts (see People v. Ridenhour, 153 A.D.3d at 942–943, 60 N.Y.S.3d 449 ; People v. Calderon, 146 A.D.3d at 971, 47 N.Y.S.3d 43 ; People v. Wright, 121 A.D.3d 924, 928, 994...