People v. Zillinger

Appellate Division of the Supreme Court of New York

People v. Zillinger

179 A.D.2d 382, 578 N.Y.S.2d 153, 1992 N.Y. App. Div. LEXIS 87

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 9, 1992

StatusPublished

Cited by11 cases

This text of 179 A.D.2d 382 (People v. Zillinger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Zillinger, 179 A.D.2d 382, 578 N.Y.S.2d 153, 1992 N.Y. App. Div. LEXIS 87 (N.Y. Ct. App. 1992).

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Opinion

The Sandoval ruling, permitting the People limited inquiry into defendant’s 18, 14 and 12 year-old convictions, if he took the stand, was not an abuse of discretion, since defendant had been incarcerated during that period for approximately 13 years, and the Sandoval compromise utilized by the court prohibited inquiry into the underlying facts or even mention of the specific crimes committed (People v Ortiz, 156 AD2d 197, 198, lv denied 76 NY2d 740; People v Cuadrado, 171 AD2d 556). "The age of the conviction in and of itself does not preclude the prosecutor from using it to cross examine the defendant,” particularly where the court utilizes a Sandoval compromise (People v Stringfellow, 176 AD2d 447, 448). Moreover, the question of remoteness was not preserved.

It was not error for the trial court, sua sponte, to preclude defense counsel from commenting upon the People’s failure to call the occupants of the apartment who complainant encountered in the building elevator after the robbery. Although a missing witness charge is not a predicate to such a summation argument, materiality is (People v Perez, 159 AD2d 219, 220, lv denied 76 NY2d 740; People v Smith, 166 AD2d 385, 386, lv granted 77 NY2d 844). The record does not show that the uncalled witnesses observed defendant or the weapon used, or otherwise possessed relevant or material evidence. Concur— Sullivan, J. P., Carro, Milonas, Asch and Rubin, JJ.

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The Sandoval ruling, permitting the People limited inquiry into defendant’s 18, 14 and 12 year-old convictions, if he took the stand, was not an abuse of discretion, since defendant had been incarcerated during that period for approximately 13 years, and the Sandoval compromise utilized by the court prohibited inquiry into the underlying facts or even mention of the specific crimes committed (People v Ortiz, 156 AD2d 197, 198, lv denied 76 NY2d 740; People v Cuadrado, 171 AD2d 556). "The age of the conviction in and of itself does not preclude the prosecutor from using it to cross examine the defendant,” particularly where the court utilizes a Sandoval compromise (People v Stringfellow, 176 AD2d 447, 448). Moreover, the question of remoteness was not preserved.

It was not error for the trial court, sua sponte, to preclude defense counsel from commenting upon the People’s failure to call the occupants of the apartment who complainant encountered in the building elevator after the robbery. Although a missing witness charge is not a predicate to such a summation argument, materiality is (People v Perez, 159 AD2d 219, 220, lv denied 76 NY2d 740; People v Smith, 166 AD2d 385, 386, lv granted 77 NY2d 844). The record does not show that the uncalled witnesses observed defendant or the weapon used, or otherwise possessed relevant or material evidence. Concur— Sullivan, J. P., Carro, Milonas, Asch and Rubin, JJ.

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Bluebook (online)

179 A.D.2d 382, 578 N.Y.S.2d 153, 1992 N.Y. App. Div. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-zillinger-nyappdiv-1992.

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