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[971 N.Y.S.2d 238] Lynn W.L. Fahey, Appellate Advocates, New York City (De Nice Powell of counsel), for appellant.
[971 N.Y.S.2d 239] Richard A. Brown, District Attorney, Kew Gardens (William H. Branigan, Robert J. Masters and John M. Castellano of counsel), for respondent.
LIPPMAN Chief Judge.
[993 N.E.2d 1260] The primary issue presented by this appeal is whether the court violated defendant's Fifth Amendment privilege against self-incrimination when it granted the People's request to cross-examine him about the underlying facts of a rape conviction that was then on direct appeal. For the reasons discussed below, we hold that a defendant with a conviction pending appeal may not be cross-examined in another matter about the underlying facts of that conviction until direct appeal has been exhausted.
Defendant was charged with second-degree and third-degree assault as a result of a confrontation outside his place of business at which only defendant, complainant Andre Elbresius, and Elbresius's wife were present. Defendant and Elbresius were neighbors and acquaintances. A few hours before their altercation, Elbresius had given defendant a ride in his car, and they had argued about defendant's unauthorized use of Elbresius's spare license plate. The argument escalated to a confrontation at defendant's place of business. Elbresius claimed that defendant was the sole aggressor, pushing and biting Elbresius on his finger and ear, for which he required surgery. Defendant claimed that Elbresius was the initial aggressor and hit defendant in the face with a gun, which he reported to a 911 emergency operator.
At trial, the defense was justification and defendant planned to testify, but the People received permission, after a Sandoval hearing, to cross-examine him about his recent rape conviction, still pending on direct appeal, as well as the underlying facts,
and the sentence he received. After the defense rested, defense counsel asked the court to reconsider the Sandoval ruling, objecting that an appeal of the rape conviction was pending and, therefore, cross-examination about the conviction and its underlying facts would violate defendant's constitutional privilege against self-incrimination, but the court adhered to its ruling. Defendant did not testify and was convicted of third-degree assault. Subsequently, his conviction for rape was reversed for ineffective assistance of counsel, his prior attorney having failed to impeach the complainant with exculpatory hospital records (People v. Cantave, 83 A.D.3d 857, 921 N.Y.S.2d 278 [2d Dept.2011], lv. denied, 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803  ). Defendant was retried and acquitted.
Defense counsel also sought to admit defendant's 911 call, which recorded defendant seeking police assistance and reporting an attack by a man with a gun who was still at the scene. Counsel argued that the call should be admitted under either the excited utterance or present sense impression exception to the hearsay rule. Although the court acknowledged that of the two theories of admission, present sense impression would be the hearsay exception that would allow the call to be admitted, the court excluded the call, finding that defendant " had sufficient time to think about what he was going to say to 911."
The Appellate Division affirmed ( 93 A.D.3d 677, 941 N.Y.S.2d 163 [2d Dept.2012] ), finding the Sandoval issue unpreserved, and in any event found that the admission of the underlying facts of defendant's rape conviction was not an abuse of [993 N.E.2d 1261] discretion. The court also held the 911 call properly excluded, finding it neither an excited utterance nor a present sense impression. A Judge of this Court granted ...