People v. Cunny
2018 NY Slip Op 05191
July 11, 2018
The defendant appeals a Supreme Court decision from Kings County, New York, where the defendant was convicted of assault in the 1st degree.
Judgment was affirmed.
On June 2, 2012, the complainant was hit in the head with a metal bat while walking through a construction site. The victim never saw the defendant but heard his voice. They apparently knew each other since childhood. The plaintiff was walking with a companion who later identified the defendant. The defendant was indicted for attempted assault in the first degree. The plaintiff reported that for a few months after the accident the defendant approached the plaintiff and asked that he drop the charges against him. The defendant was also charged with witness tampering.
The court held a Sandoval hearing (People v Sandoval 34 NY2d 371). The court granted the plaintiff’s request to cross-examine the defendant about the defendant’s previous conviction for coercion. The defendant never testified. We agree that the court shouldn’t have granted this request.
The court said that the credibility of witnesses can be challenged by their prior bad acts. The risk here, however, is the judge can view the evidence as showing a propensity to commit the crime. It also may deter the defendant from testifying (People v. Smith 18 NY3d 588, People v Hayes 97 NY2d 203, 207).
Using Sandoval questioning is not automatically precluded. A cross-examination when similar claims are involved can be considered prejudicial (People v Ridenhour 153 AD 942, 943). Therefore, a balance must be struck between the worth of the evidence vs. the risk of unfair prejudice on the other. This should be measured by the impact of the evidence and if it will discourage the defendant from taking the stand on their own behalf.
In the present case, the information regarding a previous conviction may have probative value. This value was outweighed by the possible prejudicial effect of those facts. The court says that the Sandoval ruling didn’t deprive the defendant of a fair trial (People v Cummins 36 NY2d 230).
In this case, the matter involved a 2006 conviction where the use of a hammer was threatened. While it could have some probative value for credibility, it was clearly outweighed by the possible prejudicial effect (People v Ridenhour 153 AD3d 942; People v Wright 121 AD3d 924, 928). This court feels that the Sandoval ruling didn’t deprive the defendant of a fair trial. It was harmless because there was no chance that the error could have affected the court’s decision.
The defendant agrees that the court properly accepted the evidence that the defendant’s after his arrest caused the police to forego the normal line up. The plaintiff’s companion subsequently identified the defendant by a photograph (People v Adamson 131 AD 701, People v Perkins 15 NY3d 200). The defendant, however, objects to the evidence that was admitted by the detective who admitted the defendant. Violent language was used. The defendant contends that these statements were of minimal probative value and greatly prejudicial. The court disagrees.
The sentence imposed is not considered excessive.