This matter comes before the Court by way of Defendant’s Omnibus Motion request for a hearing pursuant to People v. Sandoval, 34 NY2d 371 (Ct App 1974). The Court granted the request for same, and held the Sandoval hearing1 on March 7, 2019.Defendant was indicted by Sullivan County Grand Jury Indictment No.238-2018. Defendant is charged with one (1) count of Operating as a Major Drug Trafficker pursuant to PL §220.77(1), a Class A-1 felony; one (1) count of Conspiracy in the Second Degree pursuant to PL §105.15, a Class B felony; and one (1) count of Conspiracy in the Fourth Degree pursuant to PL §105.10(1), a Class E felony.The hearing record before this Court establishes that Defendant is twenty-eight (28) years old and has only one (1) prior conviction. The Defendant was convicted upon a guilty plea as part of a negotiated plea bargain on September 7, 2011 for Criminal Possession of a Weapon in the Second Degree pursuant to PL §265.03(3), a class C violent felony, for possessing a loaded, unregistered handgun. The Defendant was thereafter sentenced in accordance with the plea bargain to three-and-one-half (3 ½) years of incarceration plus five (5) years of post-release supervision upon this conviction. The Defendant served the entirety of his incarceration and was released to parole supervision on March 6, 2015.2 The People request to use this Defendant’s prior felony conviction of Criminal Possession of a Weapon in the Second Degree in order to impeach the Defendant’s credibility should he choose to testify since it shows that the Defendant is willing to put his own interests ahead of those of society and thus may lie under oath as a witness.The Defendant argues that the Defendant’s conviction is not for a crime that bears directly on his credibility or honesty, and its offering would only purport to show the Defendant’s propensity for crime. Considering that the Defendant’s current Indictment for Operating as a Major Drug Trafficker, among other crimes, the Defendant further contends that the jury would be unduly prejudiced by the common perception in today’s society that firearms and drugs “go hand-in-hand.” As such, the probative value of allowing testimony regarding the Defendant’s prior conviction for credibility purposes would not outweigh the unduly prejudicial effect against this Defendant. The Defendant also claims that this conviction is somewhat remote, in that it is eight (8) years old (from September of 2011) and that the Defendant has been crime-free since his release from prison in 2015. Lastly, the Defendant asserts that allowing such testimony would have a chilling effect on the Defendant’s right to testify on charges with a potential sentence of twenty-five (25) years to life in prison on a class A drug felony.Under Sandoval, supra, this Court must exercise its discretion to make an advance ruling as to the use by the People of the Defendant’s prior convictions or proof of the prior commission of specific criminal, vicious, or immoral acts for the purposes of impeaching the Defendant’s credibility should he choose to testify on his own behalf. The ruling on the admissibility of these prior convictions must balance between the probative value of prior convictions and the risk of their unfair prejudicial effect on the Defendant. Id. This determination depends on the individual facts and circumstances of each case. Sandoval, supra. As stated in People v. Smith, 27 NY3d 652 (Ct App 2016):It is elementary that impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious, or criminal conduct bearing on credibility.Given these central principles, prosecution witnesses — and indeed, even a testifying defendant — may be cross-examined on prior specific criminal, vicious, or immoral conduct, provided that the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility…it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent…(internal citations removed).In People v. Hayes, 97 NY2d 203 (Ct App 2002), the Court of Appeals further promulgated as to the cross-examination of a criminal defendant:As the law has developed, 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…To the extent that the prior commission of a particular crime of calculated violence or of specified vicious or immoral acts significantly reveals a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand. A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity…The determination rests largely within the reviewable discretion of the trial court, to be exercised in light of the facts and circumstances of the particular case before it. A trial court may exclude such evidence entirely. It may, alternatively, limit inquiry into the mere fact that there has been a prior conviction; it may limit inquiry to the existence and nature of the prior conviction; or it may permit examination into the facts and circumstances underlying the prior conviction.(internal citations removed) (emphasis added). The trial court is never bound by fixed rules in determining whether to allow inquiry into a defendant’s prior convictions, including no strict prohibition due to similarity of the prior conviction to the crime charged or remoteness in time. See, People v. Wilson, 78 AD3d 1213 (3d Dept 2010); People v. Jones, 70 AD3d 1253 (3d Dept 2010); People v. Rockwell, 18 AD3d 969 (3d Dept 2005). While there is no “particular balancing process” of the relevant factors, the trial court must be sensitive to the particular prejudice that may result when a jury is informed that the defendant has prior convictions similar to the charged crime. People v. Walker, 83 NY2d 455 (Ct App 1994).It is well settled in law, however, that evidence of prior crimes cannot be admitted solely for the purpose of proving defendant’s criminal propensity or that defendant “is of such a criminal bent that he is likely to have committed the crime charged.” People v. Pavao, 59 NY2d 282 (Ct App 1983). See also, People v. Mattiace, 77 NY2d 269 (Ct App 1990); Sandoval, supra; People v. Iovino, 149 AD3d 1350 (3d Dept 2017); People v. Karuzas, 124 AD3d 927 (3d Dept 2015); Rockwell, supra. The Sandoval analysis of the trial court is dependent upon the type of the prior conviction vis-a-vis credibility. It is axiomatic that the commission of crimes or acts involving “individual dishonesty and untrustworthiness,” such as perjury, theft, fraud, and bribery, are materially relevant to credibility. People v. Lemke, 58 AD3d 1078 (3d Dept 2009). See also, People v. Fomby, 101 AD3d 1355 (3d Dept 2012); People v. Jones, 70 AD3d 1253 (3d Dept 2010); People v. Willis, 282 AD2d 882 (3d Dept 2001). As set forth by the Court of Appeals:In Sandoval, this court sanctioned a procedure whereby a defendant, before deciding whether to testify, could obtain “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.” It emphasized that, in weighing whether cross-examination about a prior conviction or immoral act should be allowed, the court should balance the probative worth of the evidence on the issue of defendant’s credibility against “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 in his own behalf.”Although the list is by no means exhaustive, among the factors that may bear upon the court’s decision whether to permit use of a prior conviction are the period of time since the conviction, the degree to which it bears on a defendant’s veracity and credibility, and the extent to which any similarity between the prior conviction and the crime charged may “be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility.” People v. Williams, 56 NY2d 236 (Ct App 1982) (internal citations removed).This Court finds that the Defendant’s conviction for possession of a firearm has no “per se” bearing on his credibility, veracity, or honesty as per Lemke, supra. There is no evidence in the record that the Defendant was involved in the theft of the weapon for which he was convicted of possessing. In fact, the Defendant admitted to and accepted his responsibility for his sole possession of the weapon in pleading guilty to the charge against him.It is this Court’s opinion that in this case, the unfair prejudicial effect of allowing cross-examination into the Defendant’s prior conviction in order to impeach the Defendant’s credibility or to show his willingness to place his self interests above those of society, should he decide to testify on his own behalf, outweighs the probative value gained in allowing such testimony. As the Defendant succinctly pointed out, it is entirely possible in today’s headline society with an opioid crisis and drug lord invasion of the United States that a jury would presume the Defendant’s guilt of drug trafficking in this matter simply due to the fact that the Defendant has a prior conviction involving the possession of a firearm due to the common perception that firearms are used in conjunction with selling and trafficking drugs — that “drugs and guns go hand-in-hand.”Further, this Court finds that a Sandoval compromise in this matter would not negate the prejudicial effect of such testimony. Even if the People only brought forth testimony that the Defendant has a prior felony conviction from 2011 — without elaborating as to what crime the Defendant was convicted of — such knowledge would have an unduly prejudicial effect on the jury. Not only may the jury speculate as to what crime the Defendant was convicted of, but it may influence the jury’s perception that the Defendant has a propensity for crime. Thus, the Defendant may unfairly be forced to waive his right to testify on his own behalf in a major drug trafficking case based upon the belief that the cross-examination regarding his prior conviction will unfairly prejudice the jury against him.Lastly, this Court does not find that the Defendant’s prior conviction is “stale” or remote in time. The conviction is from approximately eight (8) years ago, during which the Defendant spent more than three (3) years in prison. It should be noted, however, that it is the Defendant’s only criminal conviction, and thus the age of this conviction is one of the relevant factors in the Court’s balancing of Sandoval interests herein.Based upon the foregoing, it is herebyORDERED, that the Defendant’s request pursuant to People v. Sandoval is granted, in that the People may not use Defendant’s prior conviction of Criminal Possession of a Weapon in the Second Degree to impeach Defendant’s credibility should Defendant choose to testify on his own behalf.This constitutes the Decision and Order of this CourtDated: March 13, 2019Monticello, New York
