People v. Gatewood

241 A.D.2d 372, 660 N.Y.S.2d 122, 1997 N.Y. App. Div. LEXIS 7313

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1997
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered May 1, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6V2 to 13 years and a $2,000 fine, reversed, on the law, and the matter remanded for a new trial.

Defendant was denied a fair trial where the trial court erroneously modified its original ruling pursuant to People v Sandoval (34 NY2d 371), and then permitted the prosecution to violate the modified ruling (see, People v Gomez, 227 AD2d 210). The original ruling permitted counsel to elicit four misdemeanor convictions and one felony conviction from defendant should he testify, without going into the underlying facts or the nature of the charges. After defendant’s direct testimony, the court modified its Sandoval ruling at the prosecution’s request to permit counsel to go into the nature of defendant’s prior convictions to the extent of inquiring as to the type of drugs involved in defendant’s two prior drug sale convictions, since defendant had purportedly “opened the door” by conveying the impression that he was only a user of drugs, not a seller. However, in the course of defendant’s cross-examination and in its summation, the prosecution delved extensively into the remainder of defendant’s prior criminal history as well.

Once a Sandoval ruling has been made and the defendant has taken the stand, a trial court should only modify the ruling where defendant denies the existence of a prior conviction or gives misleading information concerning his or her background and prior conduct (see, People v Fardan, 82 NY2d 638, 646; People v Astado, 131 AD2d 684; People v Morgan, 171 AD2d 698, lv denied 78 NY2d 971). Contrary to the People’s contentions, neither of these circumstances occurred here. Defendant’s direct testimony did no more than seek to explain why he was present at the time and place of the arrest and why he was in possession of the contraband found on his person, and neither he nor his counsel sought to imply that he had never sold drugs or did not have prior convictions for drug selling. “[D]efendant should not have been precluded from denying the very sale with which he was charged” (People v Gomez, supra, at 211). As a result of the erroneous modification of the ruling, extremely prejudicial evidence regarding defendant’s prior drug selling convictions was elicited from defendant on cross-examination and used on summation.

The prejudice to defendant was exacerbated by the court’s permitting the prosecution to “open the door” and then step through it to exceed the bounds of the modified ruling and delve into the remainder of defendant’s prior criminal history, including unrelated convictions over 30 years old. A defendant who testifies has the right “to expect that the court would not permit cross-examination to extend to matters apparently precluded by the [Sandoval] ruling” (People v Aponte, 168 AD2d 274, 275).

These errors cannot be considered harmless, given the circumstances that the case boiled down to the jury’s comparison of defendant’s credibility to that of the undercover officer and that there was significant physical evidence supporting defendant’s contention that he was only using, not selling, drugs at the time of his arrest. We also find that these errors were duly preserved for review.

In light of the foregoing, we need not consider defendant’s remaining contentions. Concur—Rosenberger, J. P., Rubin and Williams, JJ.