People v. Marable

[724] Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered January 14, 2004, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant was charged, inter alia, with robbery in the first degree for having forcibly stolen money from the complainant’s store while wielding a knife. The complainant testified that the defendant had taken money from both the cash register and a cigar box in which lottery receipts were kept, and had warned her not to tell anyone about the robbery. Testifying in his own behalf, the defendant admitted that he had stolen money from the cigar box, but denied that he had possessed a knife, stolen money from the register, or threatened the complainant. Prior to trial, the defendant made a motion pursuant to People v Sandoval (34 NY2d 371 [1974]) to limit the prosecution’s cross-examination regarding his prior criminal convictions. The defendant had three prior convictions: two for felonies, and one for a misdemeanor. The most recent, in 1993, involved a gunpoint robbery of a delicatessen. Initially, the trial court ruled that, should the defendant take the stand, the People would be prohibited from cross-examining him regarding his two earliest convictions, but would be permitted, without inquiring into the underlying facts of the case, to confront the defendant with the fact that he had been convicted of robbery. Following jury selection, the court revised its ruling at the defendant’s request to limit the People’s inquiry to whether the defendant had previously been convicted of a felony without specifying that the felony was a robbery. When the defendant testified, the prosecutor abided fully with the court’s Sandoval ruling and the defendant admitted having previously been convicted of a felony. On redirect examination, however, defense counsel asked the defendant, over the People’s objection, whether he had pleaded guilty to that prior felony charge. The defendant responded that “[he] did plead because [he] was guilty.” Immediately thereafter, on the People’s application and over defense counsel’s objection, the court modified its Sandoval ruling to permit the prosecutor to examine the defendant about the facts underlying the prior robbery conviction. [725] “[A] criminal defendant who chooses to testify, like any other civil or criminal witness, may be cross-examined regarding prior crimes and bad acts that bear on credibility, veracity or honesty” (People v Hayes, 97 NY2d 203, 207 [2002]; cf. CPLR 4513). However, to minimize the risk that evidence of prior convictions will be used by the factfinder, not on the issue of credibility, but as proof of the defendant’s propensity to commit the charged crime, the defendant may obtain from the court an advance ruling as to whether and to what extent the People will be permitted to offer such evidence in the event the defendant testifies (see People v Sandoval, supra). Such relief, however, is intended as a shield for the defendant, not a sword by which to advance the case for the defense (see People v Addison, 73 AD2d 790, 791 [1979]). Thus, it has been held that, where a defendant testifies that he pleaded guilty in a previous case because he was, in fact, guilty, thereby implying that his failure to plead guilty to the current charges should be taken as proof of his innocence, he opens the door to cross-examination exploring his true motivation for the prior guilty plea (see People v Cooper, 92 NY2d 968, 969 [1998]; People v Ferguson, 190 AD2d 610, 610-611 [1993]). Indeed, “testimony of this type . . . could arguably open the door to cross-examination which would truly refute it. For example, such testimony has been held to open the door to questioning that seeks to demonstrate that a prior guilty plea was motivated by factors other than honesty, such as the overwhelming level of proof in the prior case” (People v Garcia, 169 AD2d 358, 363 [1991]; see People v Baez, 1 AD3d 203 [2003] [the strength of the People’s case may be “highly relevant to the issue of (a) defendant’s actual motivation for pleading guilty”]). Here, in accordance with the court’s ruling, the prosecutor elicited only that the defendant had been previously convicted of an unnamed felony. Defense counsel then asked on redirect examination whether the conviction had resulted from a guilty plea, and the defendant gave the answer that led to the modification of the Sandoval ruling. Although the fact that the defendant previously had been convicted of a crime was relevant to his credibility, the fact that the conviction resulted from a guilty plea rather than a jury verdict was not. To the contrary, the only reason for eliciting that the defendant had pleaded guilty in the prior case was to raise the inference that, when guilty, the defendant pleads guilty. That is precisely the inference that the People may, in the court’s discretion, be permitted to meet with otherwise precluded evidence (see People v Cooper, supra). [726] We respectfully disagree with our concurring colleague’s suggestion that, although the People may resort to evidence that a defendant had pleaded guilty in the prior case because he was offered a favorable plea bargain, the court may not permit inquiry into the facts underlying the prior conviction unless the defendant had been issued “meticulous warnings” prior to taking the stand as to the circumstances under which his testimony would open the door to otherwise precluded examination (citing People v Baez, supra). A counseled defendant, who moves for and receives Sandoval relief, need not specifically be warned beforehand by the court not to misuse the protection afforded him by suggesting to the jury that he pleaded guilty in the past whenever he was guilty but had not pleaded guilty in the case on trial because he was not. In the course of the initial Sandoval hearing, the trial court was fully apprised of the facts underlying the defendant’s prior robbery conviction. Under the circumstances of this case, the trial court did not abuse or improvidently exercise its discretion in modifying its Sandoval ruling. To the extent the defendant’s contentions may be construed to include claims of misconduct concerning the prosecutor’s recross-examination and subsequent summation pertaining to the evidence elicited as a result of the court’s modified Sandoval ruling, his claim is unpreserved for appellate review. Contrary to the defendant’s contention, we are satisfied, upon the exercise of our factual review power, that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). Adams, J.P, Santucci and Fisher, JJ., concur.