People v. Santiago

Appellate Division of the Supreme Court of New York

People v. Santiago

138 A.D.2d 327, 526 N.Y.S.2d 456, 1988 N.Y. App. Div. LEXIS 3303

Appellate Division of the Supreme Court of the State of New York·Decided March 31, 1988·Published·Cited by 8 cases

Opinions

Order, Supreme Court, Bronx County (Gerald Sheindlin, J.), entered May 8, 1986, which denied defendant’s motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of the same court, rendered March 20, 1985, convicting him, after a jury trial, of rape in the first degree and two counts of sodomy in the first degree, terminating his probation on another conviction and sentencing him as a second felony offender to concurrent indeterminate terms of from IVi to 15 years’ imprisonment, reversed, upon the law and the facts and as a matter of discretion in the interest of justice, the motion granted and a new trial ordered. Appeal from the judgment of conviction dismissed as academic in light of the foregoing determination.

On direct examination, the complainant testified that at one time she had been a candidate for the Police Department. However, on cross-examination, she admitted to a criminal conviction record. She testified that she had been caught in a friend’s apartment which had been burglarized, but claimed that she was not guilty of the burglary and had pleaded guilty to the misdemeanor of criminal trespass.

In its charge, the court instructed the jury that the complaining witness had been convicted of the misdemeanor crime of criminal trespass and that the nature of the offense could be considered in determining the weight to be given to her testimony. At the time of sentencing, however, defense counsel discovered, for the first time, that the complaining witness had actually been convicted of attempted burglary in the second degree and that, at the time of the trial, she had an outstanding probation violation. The defendant, thereafter, moved to vacate the judgment pursuant to CPL 440.10 and 440.20 on the ground that there had been prosecutorial misconduct in the failure to disclose this information to him.

The defendant clearly had the right to be provided with the correct information with respect to the complainant’s conviction. Moreover, the court, relying on the complainant’s false testimony, incorrectly instructed the jury that she had been convicted of a seemingly innocuous misdemeanor when it was actually a felony.

Under all of the circumstances, the defendant is entitled to a new trial. Concur—Kupferman, J. P., Kassal and Smith, JJ.

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Order, Supreme Court, Bronx County (Gerald Sheindlin, J.), entered May 8, 1986, which denied defendant’s motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of the same court, rendered March 20, 1985, convicting him, after a jury trial, of rape in the first degree and two counts of sodomy in the first degree, terminating his probation on another conviction and sentencing him as a second felony offender to concurrent indeterminate terms of from IVi to 15 years’ imprisonment, reversed, upon the law and the facts and as a matter of discretion in the interest of justice, the motion granted and a new trial ordered. Appeal from the judgment of conviction dismissed as academic in light of the foregoing determination.

On direct examination, the complainant testified that at one time she had been a candidate for the Police Department. However, on cross-examination, she admitted to a criminal conviction record. She testified that she had been caught in a friend’s apartment which had been burglarized, but claimed that she was not guilty of the burglary and had pleaded guilty to the misdemeanor of criminal trespass.

In its charge, the court instructed the jury that the complaining witness had been convicted of the misdemeanor crime of criminal trespass and that the nature of the offense could be considered in determining the weight to be given to her testimony. At the time of sentencing, however, defense counsel discovered, for the first time, that the complaining witness had actually been convicted of attempted burglary in the second degree and that, at the time of the trial, she had an outstanding probation violation. The defendant, thereafter, moved to vacate the judgment pursuant to CPL 440.10 and 440.20 on the ground that there had been prosecutorial misconduct in the failure to disclose this information to him.

The defendant clearly had the right to be provided with the correct information with respect to the complainant’s conviction. Moreover, the court, relying on the complainant’s false testimony, incorrectly instructed the jury that she had been convicted of a seemingly innocuous misdemeanor when it was actually a felony.

Under all of the circumstances, the defendant is entitled to a new trial. Concur—Kupferman, J. P., Kassal and Smith, JJ.

People v. Santiago, 138 A.D.2d 327, 526 N.Y.S.2d 456, 1988 N.Y. App. Div. LEXIS 3303 (N.Y. Ct. App. 1988).

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138 A.D.2d 327 (People v. Santiago) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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