Opinion
July 13, 1990
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Callahan, J.P., Denman, Green, Balio and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: In this nonjury trial, the court's failure to conduct a Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371) does not require reversal. The court explained that it was familiar with the Sandoval ruling and the concerns underlying it and instructed the prosecutor to limit cross-examination of the defendant only to matters relating to credibility. The court also stated that it was unnecessary and wasteful for another Judge to conduct a separate Sandoval hearing. On this record, we cannot conclude that the court abused its discretion in ruling as it did. To the extent that the Second Department's decision in People v. Oglesby ( 137 A.D.2d 840, 841-842, appeal dismissed 72 N.Y.2d 831) may be read to require a Sandoval hearing in every nonjury trial, we choose not to follow it. Although a jury may tend to conclude, despite limiting instructions, that a defendant who has committed previous crimes is more likely to have committed the crime charged (see, People v. Davis, 44 N.Y.2d 269, 274), the Judge in a nonjury trial will not have that tendency (see, People v. Rosa, 96 Misc.2d 491, 492). A Trial Judge is presumed to have evaluated the evidence only for the purpose of impeaching a defendant's credibility and not as evidence of guilt of the crime charged (see, People v Moreno, 70 N.Y.2d 403, 406; People v Torres, 140 A.D.2d 729, lv denied 72 N.Y.2d 962). To require a trial court to conduct a Sandoval hearing in every nonjury trial would be a wasteful expenditure of the court's time and effort. This is particularly true in the instant case where the Trial Judge explained at great length his understanding of the principles and policy underlying the Sandoval rule and his understanding that he would be bound by the same instructions he would give a jury that defendant's prior criminal conduct could be considered only relative to defendant's credibility. In any event, even if the court erred in denying defendant's request for a Sandoval hearing, the error would be harmless because the evidence of defendant's guilt was overwhelming. We have reviewed defendant's remaining contention and find it lacking in merit.