Opinion
2005-498 Q CR.
Decided January 11, 2008.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered March 23, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the third degree and resisting arrest.
Judgment of conviction modified on the law by vacating the conviction of resisting arrest and remanding said count to the court below for all further proceedings; as so modified, affirmed.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
As there is no dispute that defendant was arrested in his home ( see Payton v New York, 445 US 573), to establish that the arrest, which he is alleged to have resisted, was authorized (Penal Law § 205.30; People v Alejandro, 70 NY2d 133, 135), in the absence of consent, the prosecution was obligated to prove either the existence of a valid arrest warrant or that exigent circumstances justified a warrantless arrest ( People v Reese , 11 Misc 3d 137 [A], 2006 NY Slip Op 50508[U] [App Term, 9th 10th Jud Dists]). The court, in error, sustained the prosecutor's objection to defendant's attempt to cross-examine the arresting officer with respect to the existence of a warrant and exigent circumstances, thereby denying defendant his right to confront a key witness against him on a critical trial issue ( Davis v Alaska, 415 US 308, 316; People v Baranek, 287 AD2d 74, 78; see e.g. People v Ashner, 190 AD2d 238, 246). We reject the People's contention that defendant waived appellate review of Payton-related error by failing to move pre-trial to suppress evidence. The issue is defendant's right to test through cross-examination the sufficiency of the trial proof of an element of the offense, not whether a Payton violation requires that evidence be suppressed ( e.g. People v Bratton , 8 NY3d 637 , 643).
We have considered defendant's remaining contentions and find them unpreserved ( People v Dickerson, 87 NY2d 914, 915; People v Siriani , 27 AD3d 670) or without merit ( People v Friedgood, 58 NY2d 467, 473; People v Kerner, 299 AD2d 913; People v Cervantes, 242 AD2d 730).
Pesce, P.J., and Belen, J., concur.
Weston Patterson, J., concurs in part and dissents in part in a separate memorandum.
Weston Patterson, J., concurs in part and dissents in part and votes to reverse the judgment convicting defendant of assault in the third degree and resisting arrest, and to remand the matter for all further proceedings in the following memorandum:
I agree with the determination to reverse the conviction of resisting arrest for the reasons stated in the majority opinion. However, as a matter of discretion in the interest of justice, I would also reverse the conviction of assault in the third degree.
A defendant has the right to exercise an informed choice whether to take the stand in his or her own defense ( People v Fardan, 82 NY2d 638, 646), and to assist that determination, to obtain an advance ruling whether "the testimony to be elicited in cross-examination [will] have a disproportionate and improper impact on the triers of fact" ( People v Sandoval, 34 NY2d 371, 376). Accordingly, "in the interest of fairness," a trial court has only "limited" authority to alter a pre-trial Sandoval ruling ( People v Grant, 234 AD2d 475). Here, the court effectively abrogated its Sandoval ruling, "upon which the defendant had relied" ( People v Powe, 146 AD2d 718, 719), and which had limited the inquiry to the facts underlying a single prior incident, by permitting the prosecutor to question defendant, charged with assaulting a neighbor in his apartment building, with defendant's history of confrontational encounters with other neighbors at prior residences and in a manner which tended to establish a predisposition to committing the crimes charged. Although defense counsel failed to articulate appropriate objections to the questioning ( see CPL 470.05; People v Dickerson, 87 NY2d 914, 915), because the proof of guilt was not overwhelming so as to render the error harmless ( People v Ayala, 75 NY2d 422, 431), I would also reverse defendant's conviction of assault in the third degree and remand both charges for a new trial.