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People v. Calderon

Supreme Court of New York, Second Department

January 25, 2017

The People of the State of New York, respondent,
v.
Jose R. Calderon, appellant. Ind. No. 10935/11

          Lynn W. L. Fahey, New York, NY (Kathleen Whooley and Patricia Pazner of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Michael L. Brenner of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN ROBERT J. MILLER HECTOR D. LASALLE, JJ.

          DECISION & ORDER.

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cyrulnik, J.), rendered June 27, 2013, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, and a new trial is ordered.

         The defendant contends that the evidence was legally insufficient to support his conviction and that the verdict was against the weight of the evidence. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 420; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

         The defendant contends that the prosecutor's redirect examination of a police officer who took the complainant's statement impermissibly bolstered the complainant's testimony by introducing her prior consistent statement made at the time of the defendant's arrest. This contention is unpreserved for appellate review. In any event, the Supreme Court properly allowed the prosecutor to elicit the substance of the complainant's statement on redirect examination for the purpose of explaining and clarifying the police officer's prior testimony that was introduced on cross-examination (see People v Ochoa, 14 N.Y.3d 180, 186-187; People v Torre, 42 N.Y.2d 1036, 1037; People v Holden, 82 A.D.3d 792, 793; People v Melendez, 51 A.D.3d 1040; People v Williams, 43 A.D.3d 414; People v Johnson, 296 A.D.2d 422).

         A Sandoval hearing (see People v Sandoval, 34 N.Y.2d 371) was held prior to trial, after which the Supreme Court ruled, in part, that, should the defendant testify on his own behalf, the People would be permitted to inquire about his conviction for robbery in the first degree on December 8, 1986. Specifically, the court ruled that the People could cross-examine the defendant about the fact of the conviction and some of the underlying facts of the robbery, including that the defendant placed a knife to the complainant's neck, but not the fact that the defendant threatened to kill the complainant. The court reasoned that, while it was alleged in the present case that the defendant had placed a knife to the complainant's neck during the commission of the rape, the similarity of the alleged conduct should not shield the defendant from cross-examination. We agree with the defendant that the court improvidently exercised its discretion in making its Sandoval ruling (see People v Sandoval, 34 N.Y.2d 371; People v Wright, 121 A.D.3d 924, 928; People v Brothers, 95 A.D.3d 1227, 1228-1229; People v Finger, 166 A.D.2d 714, 716; People v Moore, 156 A.D.2d 394, 394-395).

         In Sandoval, the Court of Appeals recognized that "cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility" (People v Sandoval, 34 N.Y.2d at 377). The Court reasoned that "a balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant's credibility on the one hand, and on the other 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 on his own behalf" (id. at 375). The Court further reasoned that when considering whether the impeachment evidence should be admitted, and whether the defendant will be deprived of a fair trial, courts should consider whether "the testimony to be elicited in cross-examination [will] have a disproportionate and improper impact on the triers of fact" and whether "the apprehension of its introduction [would] undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence" (id. at 376).

         "In weighing prejudice to the defendant's right to a fair trial, an important consideration may be the effect on the validity of the fact-finding process if the defendant does not testify out of fear of the impact of the impeachment testimony for reasons other than its direct effect on his credibility-as where the defendant would be the only available source of material testimony in support of his defense" (id. at 378). The inquiry, as the Court provided, "must always depend on the individual facts and circumstances of each case" (id. at 375).

         A brief recitation of the facts and circumstances of this case is required for our analysis of the Supreme Court's Sandoval ruling. The defendant was accused of forcibly raping the complainant at knifepoint. This incident was alleged to have occurred sometime between November 2006 and January 2007, in the defendant's apartment. At that time, the complainant was suffering from drug addiction and smoked crack cocaine every day. Although she had been diagnosed with bipolar schizophrenia disorder, the complainant was not taking any medication for her condition at that time because she was homeless and living on the streets. On a day during this time frame, the complainant encountered the defendant at a location in Brooklyn and he invited her to his apartment so they could get high. The complainant smoked crack while in the defendant's apartment, after which the defendant allegedly raped her at knifepoint. The complainant remained in the defendant's apartment until the following morning. The complainant testified that, upon leaving the apartment, she saw two police officers and told them what had happened, but that the officers did not take her seriously. Until 2011, the complainant made no other attempts to report the alleged incident. On December 28, 2011, the complainant took her grandmother to Woodhull Hospital for an appointment. The complainant observed the defendant at the hospital, and thereafter she reported the alleged rape to the police. The defendant was subsequently arrested, and this prosecution ensued. The defendant did not testify at trial.

         In determining the People's Sandoval application, the Supreme Court ruled, inter alia, that if the defendant elected to testify, he could be cross-examined on the fact of his conviction for robbery in the first degree on December 8, 1986, as well as some of the underlying facts, including that he had placed a knife to the robbery complainant's neck during the commission of that crime.

         While we recognize that, under Sandoval and its progeny, the mere similarity of crimes or conduct to the charge for which a defendant stands trial does not automatically preclude inquiry, here, under the particular facts and circumstances of this case, a proper balancing of the probative value of the defendant's prior conduct of placing a knife to the robbery complainant's neck, in connection with the issue of credibility, against the risk of unfair prejudice to the defendant, should have resulted in a ruling precluding the People's proposed line of questioning (see People v Anderson, 130 A.D.3d 1055, 1056, lv granted 26 N.Y.3d 1142; cf. People v Grant, 7 N.Y.3d 421, 425). Moreover, the error was not harmless (see People v Grant, 7 N.Y.3d at 423; People v Williams, 56 N.Y.2d 236, 240-241; People v Crimmins, 36 N.Y.2d 230, 241-242). The proof of the defendant's guilt was far from overwhelming, and the defendant was the only available source of material testimony in support of his defense (see People v Sandoval, 34 N.Y.2d at 378). Inasmuch as the pretrial ruling affected the defendant's decision whether to testify and denied the jury potentially significant material evidence, the Supreme Court's Sandoval ruling cannot be considered harmless (see People v Grant, 7 N.Y.3d at 424; People v Williams, 56 N.Y.2d at 241).

         The two cases most heavily relied upon by our dissenting colleague are, ...


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