Opinion
219-03.
Decided January 22, 2004.
Honorable STEPHEN F. LUNGEN, District Attorney, Sullivan County, Lawrence H. Cooke Sullivan County Courthouse, Monticello, New York, BY: JAMES FARRELL, ADA, of counsel Attorney for the People.
LEGAL AID BUREAU OF SULLIVAN COUNTY, INC. Monticello, N.Y., BY: J. JEFFREY BRADLEY, Esq., of counsel Attorneys for Defendant.
The defendant, Ivan Rivera, is forty-two (42) years of age, and is indicted in a one-count indictment for the November 11, 2003 home invasion burglary of a residence in Liberty, Sullivan County, New York. The People's case in the chief consists, in the main, of eye witness testimony observing a person leaving that residence who was later identified as the defendant herein, and who was arrested in the early evening hours of that same day in Ellenville, New York.
The investigating Liberty Police Department detective traveled approximately twenty-six miles to Ellenville in Ulster County, New York where, upon being mirandized, defendant invoked his right to counsel at the beginning of his interview.
The Court granted the defendant's pre-trial application for a Sandoval hearing, and the issue before the Court is the admissibility of defendant's several convictions over the past twenty-five years involving numerous burglary type crimes.
The People argue that the following convictions under Sandoval shows the defendant's lack of credibility and his willingness to put his interests above those of society and the law:
1. March 7, 1979, (YO), Attempted Unauthorized Use of a Vehicle, Class B Misdemeanor.
2. May 9, 1979, Attempted Possession of Burglary Tools PL 140.35, Class B Misdemeanor.
3. June 10, 1979, Disorderly Conduct PL 240.20, Violation.
4. July 22, 1980, Burglary 3rd PL 140.20, Class D Felony.
5. July 28, 1980, Sexual Misconduct PL 130.20, Class A Misdemeanor.
6. April 14, 1993, Attempted Burglary 3rd PL 140.20, Class E Felony.
7. December 28, 1994, (on Parole) Burglary 3rd PL 140.20, Class D Felony.
8. March 14, 2000, Criminal Possession of Controlled Substance 7th PL 220.03, Class A Misdemeanor.
9. June 12, 2001, DWAI Alcohol VTL 1192 (1), Infraction.
10.May 1, 2003 arrest, pending indictment for Grand Larceny in the Fourth Degree Credit Card Theft PL 155.30, Class E Felony.
The defense argues that the defendant's first burglary conviction in 1979 is twenty-three years old; is "stale" and is so similar to the crime on trial it would be "unduly prejudicial" to the defendant's right to a fair trial.
There are no per se rules requiring preclusion because of the age, nature, or number of prior crimes. ( People v. Puff, 283 A.D. 2d 952 (2001). Nor is there per se preclusion of similar crimes as part of this Court's Sandoval analysis.
A careful review of the circumstances of the 1980 conviction reveals that the defendant was in possession of a loaded weapon and possession of stolen property following the defendant's commission of a nighttime home invasion in 1980 in the Lake George area of Warren County, New York. The defendant pled guilty to a reduced charge of burglary in the third degree and was sentenced to three years in states prison.
In 1979 the defendant had been involved in a felony larceny and possession of burglar's tools, and pled guilty to a misdemeanor, attempted criminal possession of burglar's tools, in New York City.
However, the People, from an abundance of caution, do not seek to introduce the YO attempted burglary or the misdemeanor conviction from 1979.
Nonetheless, the underlying facts and circumstances of defendant's prior convictions are certainly relevant and germane to the Court's balancing approach.
The People, also out of abundance of caution, do not seek to introduce the defendant's 1979 conviction in Brooklyn, New York for disorderly conduct arising from possession of burglar's tools and attempted grand larceny.
This Court finds that when the defendant, was convicted of his first felony burglary (in 1980 in Warren County, New York) pursuant to a plea bargain, the incident also involved possession of a loaded weapon. The defendant had a history of committing crimes in Manhattan and Brooklyn, New York, yet a few months later, the defendant travels to Lake George in Warren County, New York where he commits an illegal nighttime residential burglary.
Following the defendant's 1980 burglary conviction in Lake George, the defendant was convicted in the same year in Warren County of a misdemeanor of sexual misconduct arising from a sodomy by forcible compulsion. The underlying facts and circumstances of that conviction warranted one year in the Warren County Jail. However, again, the People, out of an abundance of caution, do not seek to introduce that sexual misconduct conviction for purposes of Sandoval, but do use it to explain the character and nature of this defendant as it applies to the his credibility.
The prosecution argues that the criminal history and numerous convictions of the defendant bear on his credibility and a trial court does not abuse it's discretion in determining that the probative worth of such evidence outweighs the risk of unfair prejudice to the defendant, People v. Puff, supra, and that the temporal remoteness of a conviction, albeit twenty three years old, standing alone, does not preclude its use on cross-examination to impeach the defendant's credibility or the defendant's willingness to place his interests above those of society. People v. Turner, 239 A.D. 2d 447 (1997).
From the defendant's criminal history, it is noted that in 1993, the defendant left Warren County, and returned to Brooklyn, New York where defendant committed another residential nighttime burglary, (along with criminal mischief, possession of stolen property and burglar's tools) and pursuant to a plea bargain was convicted of attempted burglary in the third degree and sentenced to one to three years in states prison.
The defendant's DCJS report is before the Court as People's Exhibit #1 in evidence.
Defendant was paroled, and while on parole, returned to New York City, again where defendant committed another nighttime residential burglary (and possession of burglar's tools and possession of stolen property) and was convicted pursuant to a plea bargain of burglary in the third degree and sentenced to two to four years in states prison as a second felony offender.
Defendant was again released on parole and moved to neighboring Ulster County, New York where he was convicted of criminal possession of a controlled substance in the seventh degree.
Within a year of the possession of controlled substance in the seventh degree (for which the defendant was sentenced to eight months' incarceration in the Ulster County Jail) defendant was convicted of DWAI, and fined. Again, the People, from an abundance of caution, do not seek to introduce this conviction under Sandoval.
The People also do not seek to introduce the underlying facts and circumstances by way of Ventimiglia of a pending Ulster County, New York indictment for grand larceny involving credit card theft.
There is no hard and fast rule with respect to Sandoval. The Court of Appeals and the plethora of cases emanating from People v. Sandoval, 34 N.Y. 2d 371, People v. Hayes, 97 N.Y. 2d 203 (1995) and its progeny, require this Court to carefully balance defendant's rights to a fair trial with the People's right to a fair cross-examination of the defendant. 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 N.Y. 2d 203 (1995).
Given this defendant's specialization in the crime of residential burglary, he cannot use that specialization as a shield to conceal the true nature of his credibility from the jury.
However, it is not enough for this Court to balance only the interests of the defendant and the prosecutor. It is fundamental to our criminal justice system that a trial is a search for the truth, and that search sometimes takes a long and rocky road as the trial Court attempts to safeguard the rights of the defendant under Sandoval with the truth finding process. The trial jury, in traveling this truth-seeking road to reach a verdict, also has a fundamental interest to be given accurate and clear information with respect to the current credibility of any witness including that of the defendant, should the defendant choose to testify. Just as it is incumbent upon the trial Court to guarantee, in a balancing approach, the rights of a defendant and the People to a fair trial it is also incumbent upon the Court to consider the interests of a jury not "to have the wool pulled over their eyes" and to get a full and true picture of any witness and litigant.
The defendant's specialization in a related crime does not insulate him from use of those crimes for impeachment purposes. People v. Barbosa, 176 AD2d 139 (1991).
The defendant's specialization in the crime of assault did not preclude the prosecutor from eliciting the nature of defendant's prior convictions. People v. Johnson, 262 A.D.2d 243 (1999).
The similarity between the prior crimes and the crime of robbery charged did not require their preclusion, since a defendant who specializes in one particular type of crime is not shielded from cross-examination thereon. ( People v. Rivas, 175 A.D. 2d 186 (1991).
The history of this defendant's credibility by way of the convictions which the People seek to use for purposes of Sandoval, and the history of the defendant's convictions which the People do not seek to use, gives a clear and relevant picture of this defendant's demonstrated and deliberate determination to further his self interest at the expense of society and in derogation of the interests of others which goes to the heart of honesty, and integrity. People v. Sandoval, supra.
Now therefore, this Court finds that it is appropriate for a clear, accurate and relevant view, of this defendant's credibility that the People be allowed to cross-examine the defendant as follows:
With respect to the 1980 conviction for burglary in the third degree, for which the defendant was sentenced to three years in states prison on July 22, 1980, this Court, with an abundance of caution, will allow the People to cross-examine the defendant as to this conviction despite it being twenty-three (23) years old.
With respect to the 1993 attempted burglary conviction, although very similar to the crime charged in this indictment, this defendant should not be allowed to use his lengthy criminal history and specialization in the crime of burglary as a shield to the truth, veracity, and hopefully the pursuit of justice at trial. Accordingly, the People will be allowed to use the 1993 attempted burglary conviction from Kings County, New York with respect to the conviction and the underlying facts and circumstances for that residential burglary.
Likewise, the conviction for burglary in the third degree in 1994 (while the defendant was on parole for the earlier burglary) will also be allowed under Sandoval because it to is a clear, accurate, and current view of this defendant's credibility notwithstanding the fact that it is nearly ten years old.
With respect to the 2000 conviction of possession of a controlled substance in the seventh degree, because it involves simple possession of a controlled substance, this Court will Sandoval out that misdemeanor conviction.
The above and foregoing constitutes the decision and order of this Court with respect to Sandoval.