People v. Schwerbel

• Decision Date: 22 February 1996
• Citation: 224 A.D.2d 830,638 N.Y.S.2d 198
• Parties: The PEOPLE of the State of New York, Respondent, v. John SCHWERBEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 198

638 N.Y.S.2d 198

224 A.D.2d 830

The PEOPLE of the State of New York, Respondent, v. John SCHWERBEL, Appellant.

Supreme Court, Appellate Division,

Third Department.

Feb. 22, 1996.

Frederick Rench, Clifton Park, for appellant.

Edward G. Cloke, District Attorney, Catskill, for respondent.

Before MIKOLL, J.P., and MERCURE, YESAWICH, PETERS and SPAIN, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Greene County (Battisti Jr., J.), rendered August 23, 1994, upon a verdict convicting defendant of the crimes of criminal trespass in the second degree and unlawful imprisonment in the second degree.

At about 4:00 P.M. on July 4, 1992, defendant entered the home of Gerard Van Holsteyn and, upon discovering his estranged wife (hereinafter the victim) there, forcibly removed her from the premises against her will. Initially charged with burglary in the second degree, unlawful imprisonment in the second degree and assault in the third degree, defendant was ultimately acquitted of the burglary and assault charges, but convicted of unlawful imprisonment and criminal trespass in the second degree, which had been charged as a lesser included offense of the burglary count. Sentenced to one year in jail, defendant appeals.

Defendant contends that County Court erred in allowing the prosecutor to elicit testimony, during the People's case-in-chief, with regard to certain threatening and violent acts defendant had previously committed against the victim, and in modifying its original ruling ¹ to allow further questioning, along similar lines, during defendant's cross-examination, and in rebuttal. We are not persuaded. The court initially held that the People would be allowed to introduce evidence of defendant's behavior toward the victim (but not toward Van Holsteyn), during some 18 months prior to the incident, for the sole purpose of proving his intent to commit a crime upon entering Van Holsteyn's dwelling (a necessary element of the burglary count). This was not improper (see, People v. Alvino, 71 N.Y.2d 233, 242-243, 525 N.Y.S.2d 7, 519 N.E.2d 808).

And, once defendant testified, on direct examination, regarding events that had purportedly occurred in the days preceding the incident--events suggesting that he and the victim had been getting along well, that she would have been likely to accompany him of her own volition and that he intended nothing more than to speak with her when he entered Van Holsteyn's house--he opened the door to the presentation of further evidence bearing on the actual state of their relationship (see, People v. Watts, 154 A.D.2d 723, 724, 546 N.Y.S.2d 906, lv. denied 75 N.Y.2d 777, 551 N.Y.S.2d 919, 551 N.E.2d 120). Although a court should not, ordinarily, modify a Sandoval or Ventimiglia ruling once a defendant has taken the stand or prepared a defense in reliance thereon, such is not the case where, as here, the latter has testified in a manner that is likely, in the absence of a modification, to mislead the jury with respect to the precluded evidence (see, People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41; People v. Johnson, 203 A.D.2d 588, 589, 611 N.Y.S.2d 24, lv. denied 83 N.Y.2d 1004, 616 N.Y.S.2d 486, 640 N.E.2d...