People v. Fong

54 A.D.2d 638, 387 N.Y.S.2d 579, 1976 N.Y. App. Div. LEXIS 14138

Opinion

Judgment, Supreme Court, New York County, February 28, 1975, convicting defendant after a jury trial of criminal sale of a controlled substance, third degree, and sentencing her to a minimum of one year and a maximum of life in prison, unanimously affirmed. The trial court’s refusal to render a decision on the defendant’s pretrial motion made pursuant to People v Sandoval (34 NY2d 371) until the defendant had taken the witness stand on the trial we find to be error. While Sandoval refrained from laying down "precise guidelines” (p 375), it, nonetheless, contemplated a "prospective” ruling, among other reasons, to enable a defendant to decide whether to take the stand (p 373). In this instance we find the error harmless. The conclusive evidence of the defendant’s guilt makes it unlikely that the jury would have rendered a more favorable verdict had she taken the stand. Neither does it appear that the court’s postponement of its decision, with the possibility that it would ultimately restrict cross-examination of the defendant, was a compelling factor in her decision not to testify. Concur—Stevens, P. J., Markewich, Lane, Nunez and Lynch, JJ.