People v. Sandoval

• Citation: 357 N.Y.S.2d 849,314 N.E.2d 413,34 N.Y.2d 371
• Parties: , 314 N.E.2d 413 The PEOPLE of the State of New York, Respondent, v. Augustin SANDOVAL, Appellant.
• Decision Date: 19 June 1974
• Court: New York Court of Appeals Court of Appeals

Page 849

357 N.Y.S.2d 849

34 N.Y.2d 371, 314 N.E.2d 413

The PEOPLE of the State of New York, Respondent, v. Augustin SANDOVAL, Appellant.

Court of Appeals of New York.

June 19, 1974.

Henry J. Boitel and Thomas J. Todarelli, New York City, for appellant.

Eugene Gold, Dist. Atty. (Robert C. Bernius and Helman R. Brook, Asst. Dist. Attys., of counsel), for respondent.

JONES, Judge.

We affirm the order of the Appellate Division. In doing so we take the occasion to approve and comment on the procedure made available to defendant in this case to obtain a prospective ruling limiting the prosecutor's reference, in cross-examination impeachment of defendant, to prior specific criminal, vicious and immoral acts.

This defendant was indicted for common-law murder. Immediately prior to selection of the jury, counsel for defendant made a motion to the trial court requesting it, in its discretion, to prohibit the use of prior crimes or convictions to impeach the credibility of defendant if he decided to testify. The trial court then considered the various prior charges against defendant and the crimes of which defendant had been convicted to the extent they were then made known to the court. The trial court ruled that the District Attorney could use a 1964 conviction of disorderly conduct and a 1965 conviction of assault in the third degree and could inquire as to the underlying facts with respect to either. At the same time the court ruled that he would not permit use of a 1960 charge of contributing to the delinquency of a minor, 1963 and 1965 convictions of driving while intoxicated, a 1965 arrest for felonious assault resulting in dismissal, a 1965 traffic violation, and a 1967 charge of gambling. We agree with the Appellate Division that there was no abuse of discretion in these rulings. We find no merit in the other contentions advanced on behalf of defendant, and accordingly we affirm his conviction.

It is appropriate, however, to consider the procedural and substantive rights of a defendant to obtain a prospective ruling as to the permissible scope of his cross-examination concerning prior commission of specific criminal, vicious and immoral acts, on the basis of which, Inter alia, he will decide whether to take witness stand in his own defense. ¹ Initially we note that CPL 60.40 (subd. 1), Consol.Laws, c. 11A, while relevant to the subject under consideration, now merely authorizes the introduction, by way of contradiction, of independent proof of a prior conviction in the event of the denial of such conviction by the defendant or any other witness. It 'is not addressed to questions of when and to what extent a defendant may be cross-examined concerning prior convictions' (Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 60.40, p. 256). Section 2444 of the former Penal Law (which was in effect repealed by the Revised Penal Law effective September 1, 1967), by contrast was addressed to the scope of cross-examination as well as of independent proof and embraced the conviction of any crime but explicitly excluded conviction for a traffic infraction. (Cf. People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637.)

The nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge (People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). We now hold that in exercise of that discretion a Trial Judge may, as the Trial Judge in this case did, make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant's credibility (cf. People v. Duffy, 44 A.D.2d 298, 354 N.Y.S.2d 672; see People v. Palmeri, 58 Misc.2d 288, 295 N.Y.S.2d 128; United States v. Puco, 2 Cir., 453 F.2d 539; United States v. Palumbo, 2 Cir., 401 F.2d 270, cert. den. 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480; Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936; Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763) ².

As we wrote in People v. Schwartzman, Supra, 24 N.Y.2d at p. 247, 299 N.Y.S.2d at p. 823, 247 N.E.2d at p. 646: 'The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused. When evidence of other crimes has no purpose other than to show that a defendant is of a criminal bent or character and thus likely to have committed the crime charged, it should be excluded.' 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.

The particular limitations of proof must always depend on the individual facts and circumstances of each case. Such determination will best be made by the trial court. The procedural vehicle therefor would be a motion, accompanied in rare instances, in the discretion of the Judge to whom the motion is made, by an appropriate evidentiary hearing. The defendant should be free (but not subject to compulsion) to give relevant and material proof, in affidavit form or in person, and, of course, such proof may never be introduced on trial or otherwise used against him in the pending case.

In most cases, as in this case, but not necessarily in all cases, a pretrial motion will be preperable. (Cf. People v. Zabrocky, 26 N.Y.2d 530, 535, 311 N.Y.S.2d 892, 895, 260 N.E.2d 529, 531.) Thereby, the defendant with definitive advance knowledge of the scope of cross-examination as to prior conduct to which he will be subjected, can decide whether to take the witness stand. Revelation of the impeachment testimony and announcement of the trial court's ruling in advance of trial are consistent with the objectives today of broad pretrial discovery and disclosure.

The sensitive, informed reconciliation of the interests of the People and the rights of the defendant must here as in other instances, be committed principally to the reviewable discretion of the trial court, to be exercised in the light of all the facts and relevant circumstances disclosed in the given case. We do not suggest that precise guidelines can be laid down. A frame of reference may be described, however, within which the responsibility of Ad hoc discretion should be exercised. Such frame of reference should be understood as illustrative and suggestive rather than categorical or mandatory.

In the fact-finding process, the function, in cross-examination, of evidence of a defendant's prior criminal, vicious or immoral acts (unless such evidence would be independently admissible to prove an element of the crime charged) is solely to impeach his credibility as a witness (People v. Webster, 139 N.Y. 73, 34 N.E. 730; Richardson, Evidence (10th ed.), § 498). From the standpoint of the prosecution, then, the evidence should be admitted if it will have material probative value on the issue of defendant's credibility, veracity or honesty on the witness stand. From the standpoint of the defendant it should not be admitted unless it will have such probative worth, or, even though it has such worth, if to lay it before the jury or court would otherwise be so highly prejudicial as to call for its exclusion. The standard--whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility--is easy of articulation but troublesome in many cases of application.

At the threshold it must be recognized as inevitable, and thus not determinative, that evidence of prior criminal, vicious or immoral conduct will always be detrimental to the defendant. Similarly, it does not advance analysis to note that such evidence will have a propensity to influence the jury or the court; that objective and purpose attend the introduction of all evidence. The issue to be resolved has a double aspect in determining whether the defendant will be...