People v. Grant

• Decision Date: 17 October 2006
• Parties: The PEOPLE of the State of New York, Respondent, v. Egbert GRANT, Appellant.
• Court: New York Court of Appeals Court of Appeals

857 N.E.2d 52

7 N.Y.3d 421

The PEOPLE of the State of New York, Respondent, v. Egbert GRANT, Appellant.

Court of Appeals of New York.

October 17, 2006.

Office of the Appellate Defender, New York City (Daniel A. Warshawsky, Richard M. Greenberg and Saadia Aleem of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Na Na Park and Nancy D. Killian of counsel), for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

Defendant was convicted of multiple counts of criminal contempt in the first degree, based on charges that on May 12, 2002 (Mother's Day), he repeatedly went to the home of his ex-wife and their four children, and harassed them, in violation of an order of protection. The order mandated that defendant stay away from these named individuals, as well as from their home, school, business and place of employment. It further directed him to refrain from any contact with, or from assaulting, stalking, harassing, menacing or recklessly endangering, the five persons named in the order.

Prior to the commencement of his jury trial, the court ruled, under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), that should defendant testify, the People would be permitted to impeach him by mention of his six prior criminal-contempt convictions. Thereafter, his attorney informed the court that "due in part to the fact that his criminal background would be exposed if he does testify, he has chosen voluntarily not to testify." Upon its review of the Sandoval ruling, the Appellate Division concluded that the trial court had erred by permitting cross-examination as to all six of defendant's contempt convictions. Nevertheless, the Appellate Division upheld the conviction, determining the error to be harmless. We affirm.

Defendant argues that Sandoval error resulting in a defendant's decision not to testify can never be harmless. We disagree. Although we have not until today been squarely presented with the question, our precedents assume that harmless-error analysis applies. In People v. Williams, 56 N.Y.2d 236, 451 N.Y.S.2d 690, 436 N.E.2d 1292 (1982), for example, this Court overturned a conviction on the basis that the Sandoval error committed by the trial court was not harmless (see also People v. Shields, 46 N.Y.2d 764, 413 N.Y.S.2d 649, 386 N.E.2d 257 [1978] [upholding Appellate Division's determination of harmlessness of trial errors, including Sandoval error]).

We now hold explicitly what was implicit in Williams and Shields: Sandoval error is properly subject to harmless-error analysis. At the outset, we note that although defendant claims that his constitutional right to testify in his own behalf was violated by the court's Sandoval ruling, he never raised any constitutional claim before the trial court, thus failing to preserve this contention for our review. Accordingly, his current claim must be reviewed under the standard applicable to non-constitutional harmless error (see People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001]). Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

When an appellate court reviews the allowance as impeachment evidence of a defendant's prior convictions, the underlying issue with which to be concerned, as relevant here, is whether the apprehension of the introduction of evidence of the defendant's prior criminal, vicious or immoral conduct will "undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence" (Sandoval, 34 N.Y.2d at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413).¹ The other consideration pertinent to an assessment of the prejudicial impact of admitting such evidence is, of course, whether the testimony to be elicited will "have a disproportionate and improper impact on the triers of fact" (id.).

If, in a particular case, the fact-finder is deprived of no significant material evidence, then the defendant has not been denied a fair trial and reversal of the conviction would serve no jurisprudential purpose (see People v. Grant, 45 N.Y.2d 366, 378, 408 N.Y.S.2d 429, 380 N.E.2d 257 [1978]). Assuming that the trial court here abused its discretion,² we agree with the Appellate Division that any error was harmless, since defendant's decision not to testify did not deprive the jury of any "critical information" (Williams, 56 N.Y.2d at 241, 451 N.Y.S.2d 690, 436 N.E.2d 1292).

To be sure, harmless-error analysis in the context of Sandoval "does not involve speculation as to whether a defendant would have testified if the legal error had not occurred" (Williams, 56 N.Y.2d at 240, 451 N.Y.S.2d 690, 436 N.E.2d 1292 [citations omitted]). Here, however, the error was harmless not because of speculation as to whether defendant would have testified, but because the record reflects that, assuming that he did testify, there was simply no possibility—let alone a significant probability—that his testimony would have led to an acquittal.

The evidence of defendant's guilt was overwhelming. Inasmuch as his knowledge of the terms of the order of protection was not in dispute at trial, the only conceivable issue for the jury to resolve was whether defendant in fact went to his family's home on May 12, 2002. His ex-wife and two of their teenaged children testified that defendant came to their home three times over the course of that day. While there, he repeatedly yelled and cursed at his ex-wife. Although defendant states in the abstract that he was "the sole source of his defense," he proffers no hint that he actually had any creditable defense, and offers no suggestion as to what it might have been.³ Plainly, on this record, there is nothing to which he could legitimately have testified that might have been believed by a jury. Accordingly, allowing the introduction of all six of his prior criminal-contempt convictions to impeach his incredible testimony—as opposed to, say, limiting cross-examination to only two or three of them—could not possibly have affected the jury's verdict.

To expect a defendant to make some minimal proffer as to the nature or existence of a defense, in camera if necessary, is consistent with the principles underlying Sandoval, where we made clear that it is the defendant who has the burden "of demonstrating that the prejudicial effect of the admission of evidence [of prior convictions and misconduct] for impeachment purposes would so far outweigh the...