People v. Dickerson

215 A.D.2d 186, 626 N.Y.S.2d 768, 1995 N.Y. App. Div. LEXIS 5028

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1995
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Ira Globerman, J., at hearing; Harold Silverman, J., at trial and sentencing), rendered August 3, 1992, convicting defendant, following a jury trial, of manslaughter in the first degree and sentencing him, as a second felony offender, to a term of 12 Vs to 25 years, affirmed.

Defendant, having failed to raise before the trial court that the robing room conference was the equivalent of a Sandoval hearing, has failed to preserve any constitutional claims relating thereto (People v Iannelli, 69 NY2d 684, cert denied 482 US 914). In any event, the conference in the robing room did not constitute a Sandoval hearing. The trial court had already made its Sandoval ruling, and the meeting in the robing room was simply to discuss whether defendant’s testimony had opened the door for further questioning. It is well established that defendant has no right to be present at such a conference, whether at the bench or in the robing room (People v Velasco, 77 NY2d 469, 472; see, People v Jones, 199 AD2d 6, Iv denied 83 NY2d 806). Similarly, a defendant’s physical presence is not required during legal arguments concerning a Sandoval determination to which he or she cannot possibly contribute (People v Rivera, 201 AD2d 377, Iv denied 83 NY2d 875). There is, thus, no merit to the claim that defendant was deprived of his due process and statutory right to be present at all material stages of the proceeding against him when he was excluded from the robing room conference.

During his direct examination, defendant answered "Yes,” when asked "and, by the way, were you ever convicted of the felony of robbery?” On cross-examination, when the prosecutor asked if defendant was actually guilty of that offense, he denied his guilt and insisted that he had pleaded guilty merely to avoid the possibility of a higher sentence. In asking this one question, the prosecutor violated neither the letter nor spirit of the court’s Sandoval ruling. A defendant, as does any other witness, places his or her credibility in issue when he or she takes the stand and may be cross-examined as to past criminal or immoral acts that are relevant to credibility (People v Fardan, 82 NY2d 638, 645-646). "A Sandoval ruling does not allow a defendant to deceive the jury and be free from confrontation. A defendant who takes the stand is obliged to speak truthfully and accurately” (People v Green, 207 AD2d 318). By attempting to portray himself as an innocent man who had been wrongly convicted of robbery, defendant thereby opened the door to impeachment by otherwise precluded inquiry (People v Fardan, supra, at 646), and it was not improper for the court to permit the prosecutor to question defendant as to the circumstances surrounding his arrest for the robbery.

Defendant also maintains he was deprived of his due process right to a fair trial when the People were permitted to use a statement that he had made before another Judge for impeachment purposes. However, defendant failed to object to the prosecutor’s line of cross-examination on the ground being asserted now, and the claim presently advanced urges facts that are the opposite of what defendant’s trial counsel maintained. Thus, although defendant now urges that the statement was made in the course of plea negotiations, it is clear from the record that defendant voluntarily blurted out a statement because he believed that it would be beneficial to him and that it was not made during plea negotiations. Concur—Sullivan, Ellerin, Williams and Mazzarelli, JJ.