People v. Thomas
Decision Date | 22 May 1995 |
Parties | The PEOPLE, etc., Appellant, v. Jeff THOMAS, Respondent. |
Court | New York Supreme Court — Appellate Division |
Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie and Cheryl Hone, of counsel), for appellant.
Ronna Gordon-Galchus, Kew Gardens, for respondent.
Before MANGANO, P.J., and SULLIVAN, THOMPSON and HART, JJ.
The two questions to be resolved on this appeal are (1) whether the People's cross-examination of the defendant concerning his prior criminal record impaired the integrity of the Grand Jury, and (2) whether the holding in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, is applicable to Grand Jury proceedings.
In our view, both of these questions must be answered in the negative.
The defendant was arrested for selling cocaine to an undercover police officer on July 13, 1993.
Following the defendant's arrest, he was charged in a felony complaint with criminal sale of a controlled substance in the third degree, assault in the second degree, and resisting arrest. Despite the fact that he had nine prior convictions, the defendant chose to testify on his own behalf before the Grand Jury. Prior to his appearance before the Grand Jury, the defendant's attorney requested that the prosecutor inform her as to which of the defendant's prior convictions he intended to utilize in his cross-examination of the defendant. The prosecutor refused to divulge this information.
On cross-examination at the Grand Jury, the prosecutor questioned the defendant about a conviction in 1992, i.e., for reckless endangerment, a misdemeanor, and two convictions in 1989, i.e., for attempted unauthorized use of a motor vehicle, a misdemeanor, and for attempted criminal sale of a controlled substance in the fifth degree, a felony (the prosecutor, in his cross-examination of the defendant, erroneously referred to this prior 1989 conviction as one for drug possession).
The prosecutor avoided any reference to the defendant's six earlier criminal convictions, which included three attempted burglary convictions and an attempted robbery conviction. Other than asking the defendant whether he pleaded guilty to the admitted crimes because he was, in fact, guilty of those crimes, the prosecutor elicited few details of the underlying facts of those convictions. With respect to the 1989 drug conviction, the prosecutor asked the defendant whether he was guilty of that charge because he had possessed drugs and what kind of drugs he had possessed. In addition, one of the Grand Jurors asked the defendant, through the prosecutor, whether, when he was "arrested for criminal sale of a controlled substance" (an apparent reference to the defendant's 1989 conviction), he possessed drugs. The defendant responded, "Yes, I was in possession when I got arrested for that and plus I was on drugs too".
The prosecutor then gave proper instructions to the Grand Jurors. Thereafter, the defendant was indicted for criminal sale of a controlled substance in the third degree and assault in the second degree.
The defendant then moved to dismiss the indictment, pursuant to CPL 210.20(1)(c) and 210.35(5), based on the "prosecutor's inappropriate cross-examination". Specifically, the defendant argued in his motion papers that:
"[T]he prosecutor's inappropriate cross-examination on the defendant's prior drug felony conviction tainted the proceedings and thereby abrogated his right to appear and testify within the guidelines of fairness and due process of CPL 190.50".
The Supreme Court granted that branch of the defendant's omnibus motion which was to dismiss the indictment, on the ground that the prosecutor's cross-examination of the defendant had impaired the integrity of the Grand Jury proceeding (People v. Thomas, 160 Misc.2d 39, 607 N.Y.S.2d 871). Specifically, the Supreme Court held (People v. Thomas, supra, at 47-48, 607 N.Y.S.2d 871):
.
The Supreme Court went on to rule that the holding of the Court of Appeals in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, i.e., that a defendant is entitled to a pretrial ruling as to the permissible scope of cross-examination concerning his prior criminal history, should also be applicable to Grand Jury proceedings. Accordingly, the Supreme Court, in dismissing the indictment, granted the People leave to re-present the matter to another Grand Jury, with the caveat that "Should the District Attorney and defense counsel fail to reach a Sandoval compromise, the application shall then be made before a Justice of the Supreme Court" (People v. Thomas, supra, at 49, 607 N.Y.S.2d 871).
The People now appeal.
Initially, we hold that the prosecutor's cross-examination of the defendant before the Grand Jury was proper and did not impair the integrity of the Grand Jury. As this court stated in People v. Burton, 191 A.D.2d 451, 594 N.Y.S.2d 300:
.
We now turn to the Supreme Court's second holding, viz., that the defendant, and defendants generally, are entitled to a Sandoval ruling prior to their testifying before the Grand Jury.
Defendants who take the stand at a trial place their credibility in issue, and thus may be cross-examined at trial on past criminal or immoral acts affecting credibility (People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637; People v. Bennett, 79 N.Y.2d 464, 468, 583 N.Y.S.2d 825, 593 N.E.2d 279). In People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, supra, the Court of Appeals held that a defendant is entitled to a pretrial ruling on the scope of permissible cross-examination as to such prior misconduct (see also, CPL 240.43). In so holding, the Court of Appeals stated (People v. Sandoval, supra, at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413):
Contrary to the Supreme Court's reasoning, we are of the view that the concerns expressed by the Court of Appeals in People v. Sandoval, (supra), do not compel the extension of that holding to Grand Jury proceedings.
The purpose of a trial is to determine, in a full...
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