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Fiandach & Fiandach (Rochester NY)


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When the Defendant Takes the Stand

February 14, 2008

There is probably no decision as crucial to the outcome and strategy of a trial as whether the defendant is going to take the stand. Notwithstanding the constitutional right of everyone charged with a crime to remain silent throughout the proceeding, the psychology of a criminal trial is such that jurors are hard pressed to mentally disregard the lack of the defendant's testimony. Additionally, there are situations in which the defendant must testify. Frequently this dilemma arises when the defense is one of absorption or retrograde extrapolation. In all probability, the testimony of the defendant is necessary to establish the facts and circumstances that the expert will employ in making his or her assessment.

Likewise implicated are questions of physician-patient privilege and Sandoval. Merely obtaining a favorable ruling on the later will not always guarantee that the jury remains uniformed of a prior conviction if the defendant inadvertently opens the door.

Initial Considerations

From our position, in the appropriate set of circumstance, we commonly suggest that the defendant testify. But should she? While the decision is clearly that of the client, it would be ludicrous to maintain that our clients do not look to us for a strong indication as to the advisability of his or her taking the stand. Anyway we look at it, we will be called upon to give our indication as to whether they should or should not. So what does one consider? Initially, one must seriously and honestly assess the facts. One must never loose sight of the fact that a lawyer should never suborn perjury. When your client first informs you that he or she had ten or twelve beers, ten or twelve beers it will be. Obviously, if the defendant has informed you that he or she has consumed a quantity of alcohol sufficient to render him or her intoxicated, in all likelihood the defendant will not take the stand. The exception to this rule of common sense is operation. Should the defense be that the motorist was not operating the motor vehicle at the time of the facts alleged in the information or indictment, then the level of consumption may be irrelevant.

Sandoval and Related Issues

A second consideration which may not be overlooked is prior record. In each and every case, the defendant should make an application not only pursuant to People v Sandoval, (1974) 34 NY2d 371, 357 NYS2d 849, but CPL ' 240.43 and People v Ventimiglia, 52 NY2d 350, 438 NYS2d 261, as well. Sandoval, briefly stated, runs to whether the defendant can be cross-examined with prior conditions in an effort to show that he or she is unworthy of belief. The principle behind a Sandoval application is that at common-law, a witness, defendant or otherwise, could always be impeached with evidence of a criminal conviction. The general rule in criminal cases is somewhat broader to the extent that a criminal conviction is not necessary. Governed by CPL. '60.40(1) the statute provides as follows:

1. If in the course of a criminal proceeding, any witness, including a defendant, is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction. If in response to proper inquiry whether he has ever been convicted of any offense the witness answers in the negative or in an equivocal manner, the adverse party may independently prove any previous conviction of the witness.


Subject to the constraints imposed under People v Sandoval, this section permits any witness, including the defendant, to be asked whether he or she has been convicted of an offense. In the event that the witness denies the conviction or responds in an equivocal manner, the cross-examiner is free to offer independent proof of the conviction. Although this subdivision permits impeachment with an offense, which includes violations (see generally, Penal Law ' 10.00(1); People v Dillon (1990, 2nd Dept) 157 AD2d 742, 550 NYS2d 38; People v Blanchard 150 AD2d 705; People v Guarino 131 AD2d 875; People v Rivera (1984, 3rd Dept) 101 AD2d 981; People v Gray (1973, 3rd Dept) 41 AD2d 125, 341 NYS2d 485), by statute, one may not normally be questioned about a conviction for a traffic violation, (see, Vehi­cle and Traffic Law '155; Augustine v Interlaken, (1979, 4th Dept) 68 AD2d 705, 418 NYS2d 683) which would seem to include the infraction of Driving While Ability is Impaired.

Naturally, where the witness is also the defendant, there is always a possibility that similarities between the crime with which the defendant is charged and prior acts which the People desire to use for the purposes of cross-examination will create an impression in the mind of the trier of fact that the defendant committed the crime with which he or she is charged. The general rule of permissibility created by CPL ' 60.40(1) is therefore tempered by a requirement that the court hold an in-court hearing to balance:

the probative worth of the evidence on the issue of defendant's credibility against 'the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him from taking the stand in his own behalf.

People v Williams (1982) 56 NY2d 236, 239, 451 NYS2d 690, quoting, People v Sandoval, supra.


Such a balancing is required when the desired impeachment material consists of prior convictions (People v Sandoval, supra) bad acts underlying youthful offender adjudications, People v Ventimiglia 52 NY2d 350, 438 NYS2d 261, 420 NE2d 59; People v Greer (1977) 42 NY2d 170, 176, 397 NYS2d 613, and prior bad acts generally (see, CPL '240.43). Likewise, evidence of prior uncharged crimes is admissible, but in a severely limited fashion. Such evidence will be admitted for the purpose of impeachment when it is "inextricably interwoven in the . . . sense [that] the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence" (People v Ventimiglia, supra; People v Crandall (1986) 67 NY2d 111, 116, 500 NYS2d 635). Therefore, in People v Grier, (1990, 1st Dept) 162 AD2d 416, 557 NYS2d 68, evidence of uncharged cocaine possession and use during a robbery was held to be properly received inasmuch as use of the drug during the course of the robbery "lent support to the witnesses' description of his behavior, which might otherwise not have been believed."

In considering whether or not such acts may be used, the trial court must consider, among other things:

the degree to which it bears on a defendant's veracity and credibility, and the extent to which any similarity between the prior conviction and the crime charged may 'be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility.

People v Williams, supra, at 239, quoting in part, People v Sandoval at 377


Needless to say, such acts are not admissible when offered solely to show a propensity to commit the offense for which the defendant is being tried (People v Simms [1991, 4th Dept] 174 AD2d 979). The scope of such cross-examination, of course, "rests in the sound discretion of the Trial Judge[,]" (People v Mayrant at 240-241, citing, People v Greer, 42 NY2d 170, 176; People v Duffy 36 NY2d 258, 262‑263) and may not be set aside absent a "plain abuse and injustice" (People v Duffy, at 263). As noted by the Court of Appeals, "the exclusion of prior convictions is largely, if not completely, a matter of discretion which rests with the trial courts and fact‑reviewing intermediate appellate courts" People v Shields (1978) 46 NY2d 764, 413 NYS2d 649; See, People v Williams (1990, 2nd Dept) 162 AD2D 649.

Of critical importance when dealing with prior convictions and bad acts is the right of a criminal defendant to seek a ruling as to those acts which the prosecution will be permitted to use upon cross-examination should he or she elect to take the stand. In the event that no application is made, the right to a hearing and determination will be waived. During criminal discovery, counsel is wise to seek not only all vicious or immoral acts upon which the prosecution will rely, but to demand instances of uncharged conduct as well as prior convictions. Technically not "motions" within the strictest meaning of the term, applications pursuant to People v Sandoval and People v Ventimiglia, need not be made in defendant's omnibus motion and is not subject to strict compliance with ' 255.20(2) (People v Innis [1983, 2d Dept] 98 App Div 2d 808, 470 NYS2d 26; People v Miller [1990, 3d Dept] 163 App Div 2d 627, 558 NYS2d 269, app den 76 NY2d 942, 563 NYS2d 71, 564 NE2d 681). Indeed, while definitely not a procedure of choice, even in the absence of a pre-trial hearing, the defendant nonetheless retains the right * * * to object at trial to prejudicial cross‑examination, and when his objection challenges inquiry into his prior misconduct, he is entitled to a ruling based upon the same criteria as would have been applied had the issue been raised before trial People v Otero, (1980, 2nd Dept) 75 AD2D 168, 428 NYS2d 965. Of some question is the timing of an application made pursuant to CPL ' 240.43. Included within the purview of CPL article 240, one may plausibly argue that such an application must be made within the thirty days provided in CPL ' 240.80. On the other hand, the fact that this particular provision was denominated a Arequest and isolated from the pre-trial discovery demands may lend credence to the argument that such an application may be brought at any time in advance of trial. Even so, the better practice is to include the ' 240.43 demand with the remainder of the defendant's requests, and that should be done as a matter of form.

As ridiculous as it may seem, defense counsel should insist that all of the foregoing applications are resolved prior to trial.

Prior Alcohol Related Operating Offenses

Do not assume that a prior conviction for Driving While Intoxicated must be kept out. In People v McAleavey, (1990, 2d Dept) 159 AD2D 646, 553 NYS2d 38, for instance, the defendant had three prior convictions for alcohol related operating offenses. Finding that "[t]he mere fact the defendant has committed crimes similar to the ones charged does not automatically preclude the prosecutor from using evidence of such crimes for impeachment purposes[,]" the Second Department held "the prior convic­tions were highly relevant on the issue of credibility and demonstrated the defendant's willingness to deliberately fur­ther his self‑interest at the expense of soci­ety." Of interest in McAleavey is rejection by the trial court that the uncontrollable nature of alcoholism fell within Sandoval's seeming limitation of cross-examination based upon "conduct occasioned by . . . uncontrollable habit, as with alcohol or drugs." "[T]his court is aware of no addic­tion or uncontrollable habit which drives one who is inebriated, whether by addiction or otherwise, to operate a motor vehicle upon a public highway in derogation of the interests of society as a whole" (133 Misc2d 987 at 992-993).

More common is the use of the so-called Sandoval compromise. In People v Moore, for instance, the defendant con­tended that permitting the prosecutor to ask him whether he had been convict­ed of a misdemeanor, while re­vealing that the misdemeanor was for DWI, was an abuse of discretion. Without discus­sion, it was a contention that the Fourth Department quickly rejected. In People v Valenti, (1993, 3rd Dept) 199 AD2d 617, 604 NYS2d 652, the Third Department held that Vehicle and Traffic Law ' 155 notwithstanding, this rule does not preclude the prosecutor from ask­ing if convictions for violations of the Vehi­cle and Traffic Law were for misdemeanors. In People v Miller, (1990, 3d Dept) 163 App Div 2d 627, 558 NYS2d 269, app den 76 NY2d 942, 563 NYS2d 71, 564 NE2d 681, a DWI related fatality, the defendant was charged with Aggravated Unlicensed Operation of a Motor Vehicle in the first degree. County Court permitted proof that the defendant had previously been convicted of Driving While Intoxicated which resulted in the revocation of his license as well as his knowledge of that revocation. Opposing admission, the defendant contended that both the letter and spirit of CPL ' 200.60 prohibits the inclusion of a previous conviction in an indictment or upon proof on a trial. This contention fell on deaf ears:

Since a license revocation resulting from a driving while intoxicated conviction and defendant's awareness of the revocation are intrinsically involved with the aggravating element in three of the instant charges, strict adherence to CPL ' 200.60 would render it impossible to prove these elements without reference to the prior conviction.

To a similar outcome, in People v Campo,(1989, 2d Dept) 156 App Div 2d 375, 548 NYS2d 330, app den 75 NY2d 867, 553 NYS2d 298, a prosecution for Driving While Intoxicated, the Second Department held it was not error to permit the prosecutor to question defendant's character witness as to the witness's knowledge of the defendant's prior conviction for Driving While Intoxicated.

Somewhat different, in People v Noonan, (1995, 3rd Dept) 220 AD2d 811, 632 NYS2d 675, the Third Department applied what it called the Sandoval compromise[1] and permitted the defendant to be cross-examined with the fact that he had been convicted of two misdemeanors in 1984 and of a felony in 1992, without disclosing the nature or underlying circumstances of each. While to some extent we believe that the Sandoval compromise may cause unwarranted jural speculation, it is a far more palatable than the McAleavey approach which places the defendant on the horns of the dilemma of either forsaking his constitutional right to testify or risk the jury learning that he has been previously convicted of an identical offense. While one can legitimately question the extent to which informing the jury that the defendant had been previously convicted of a felony or a misdemeanor can enable them to determine whether the defendant has the propensity to place his or her interest above that of society, the alternative certainly makes this the better of the two shores.

Direct Examination of the Defendant

Assuming that the defendant has survived the foregoing considerations, the next step in the process is to prepare the defendant for trial. While there is no magical formula that can be followed in every instance, the following are placed for defense counsel's consideration. As a preliminary matter, consider the jury. While I have yet to see anything written about this factor, we must now consider that under the new rules, the jury pool is far more sophisticated. As evidenced by the recent calling of the Governor, professionals no longer have an easy way off. I recall that following a recent trial of my own, I was amazed to see the level of analysis that a largely professional jury employed. Against this backdrop, consider your client. What does he or she do? How does he or she act? Will he or she see most of what the police officer has written and testified to as a lie and the officer as a liar? If so, daily experiences tell us that if uncounseled, the client may engage in eye rolling, facial expressions of disbelief or worse yet utter verbal remarks that will invariably destroy the defense. Within the best of your ability, you must explain to your client that in all likelihood the officer is not lying, but is simply setting forth his or her opinion based the facts as he or she recalls them. Your client must be told that the officer is under no obligation and is in no position to give a break and accordingly he or she should not expect such while the officer is on the stand. This is crucially important if the defendant is to avoid projecting a snide or nasty tone on the stand. Your defense is either that the officer jumped the gun in drawing his or her conclusions or is mistaken. It is incompatible with lying and if the client projects that belief, he or she will probably be convicted. There is also the matter of dress and language. From the later perspective, a trial is not a fashion show. Flashy or state of the art clothing and jewelry may subliminally convey the message that your client is prone to socializing, hence drinking. Males should dress conservatively in a manner appropriate with their chosen career. A construction worker should not wear a three piece suit. Such will be perceived by the jury as putting up a false front. What's more, your client will simply not be comfortable when attired in this manner and the lack of ease will show in his testimony. A pair of Acords or casual slacks and a new or freshly laundered shirt will do quite well. Conversely, if your client is a professional person, he or she should dress as such. To do otherwise will risk the image that the client is some how responding to the jury in a condescending manner. Language also conveys its own signals. Terms like the bar, Bud Lights, or AVO and water subliminally inform the jury that your client is no novice to drinking. Have him or her avoid such terms whenever possible. Instruct your client to use the full name of any club or establishment and to speak generically in terms of what he or she had to drink. In the course of readying your client for cross-examination, prepare him or her for the hallmark of good cross-examination, making an innocent fact look guilty; You talked to your lawyer about your testimony, didn't you? Let your client know that this is not somehow underhanded. Yes I did, or even of course I did, will logically follow.

Explanations of poor behavior deserve special attention. To the extent that it can, such should be explained. Even so, great attention should be paid to form. When candidly asked about poor performance on field sobriety tests, most individuals will respond with I couldn't do those sober. The concept will strike a sensitive jural cord, implying that he or she was not sober at the time of the test and as such is a poor response at trial. Even so, stated in proper form, if applicable, it should definitely be said. When asked, you heard testimony that you could not stand on one leg for thirty seconds, why was that, the response, because I can't under any circumstances, should disarm this test. Likewise for driving. As we will see, good cross-examination will stress weaving or a rolling stop. While not laudatory again, if applicable, such should quickly be dismissed with unfortunately, I tend to do that. Other anomalies such as speech or gait can be similarly explained provided they fall within your client's nominal parameters.

Refusals deserve special attention. Don't become so caught up in the fact that there is no test that you ignore the presumption of guilt that arises from a refusal. At my initial interview with a prospective client, I like to ask them why they refused. At this stage they will generally express a non-guilt related reason such as the desire to talk to a lawyer or a lack of faith in the machine. As you prepare for trial, remind your client of this declaration. It will provide you with a means of defusing the presumption.

When preparing your questions, don't overlook the obvious. Omitting smell, raised arms or blood shot eyes is unfortunate since your client will naturally have an innocent explanation. Numbers and times require particular attention. Unless the client is entirely certain about the time that he or she did or did not do a particular event, they are best counseled to testify only in terms of approximations. The same is true when it concerns the numbers of alcoholic beverages consumed. If your client informed you at the time of arrest that he or she had three or four drinks, that's exactly where it must stay. Advise your client that every cross‑examiner in the world will attempt to get them to admit that it could have been one or two more. Particularly because of the sensitivity of three or four drinks, I tell my clients they must stand firm at that number if this in fact is what they believe they had to drink on that particular evening. Above all, clients should be advised never to guess. If they are unsure of an answer, they should be told to tell the cross‑examining attorney that, "I am simply not sure, to go further would require a guess."

Cross-Examination of the Defendant

From my perspective, this is the land of lost opportunities. Time and time again I am amazed to see the interrogator overlook built in gems while pursuing a self-destructive course of insulting banter. For the benefit of all, let's look at some of the opportunities that present themselves in each and every case.

Paramount is numbers. Defendants will invariably make one crucial blunder. They will testify as to an absurdly low number over an unbelievably long period of time. Three beers over five hours. This opens up two areas. Numbers and times. When confronted with such testimony, the skillful prosecutor will firmly commit the witness to the number. He or she will not however, ask the witness as to the basis for his or her sureness. To do so will afford them the opportunity to respond with I've had a lot of time to think about this, I clearly reviewed the numbers as I sat and waited for the test, or to tie it in with events that occurred during drinking such as innings or intermissions. If the prosecutor wishes to launch a limited operation into this area, one question that may be asked is, How many cups of coffee did you drink yesterday? The prosecutor will then turn to times. Although three beers over five hours simply belies human experience, avoid pointless badgering such as, You expect this jury to believe that? Of course the defendant expects the jury to believe it. A better tactic is to break down the evening into minute detail. How long did you speak with Mr. Ewell? What did you do as you spoke with Ms. Codori? The object behind this is to show that there are actually large blocks of time which are unaccounted for.

Don't overlook the witness list. If the defendant plans to put forth a witness as to what he or she had to drink, subtly discredit this testimony in advance. And you were with Mr. Pender, weren't you? ADid you speak with him about your arrest? Don't ask what was said lest you merely get a confirming account, simply ask when and where. Then follow up by asking the witness an identical series of questions. Dollars to donuts is that if not properly prepared for this gem, the two sets of stories will fail to fit.

If the defendant has testified that he or she cannot do a particular test sober, don't overlook the obvious. Review each and every test the defendant did that evening and follow it with can you do this when you're sober?

Refusal warnings provide great fodder for cross-examination. Invariably the warnings will conclude with a declaration that the refusal to submit can be received at trial. Unlike a declaration of silence, this is fair game.

Finally, recap the testimony. Ask the defendant if it is his or her testimony that three beers will not get him or her drunk. Then ask him or her how much it takes to get him or her drunk. Likewise, if the defense is that the operation of the motor vehicle was reasonable and prudent, ask the defendant, is it reasonable and prudent to speed? Is it reasonable and prudent to oll through a stop sign? Don't you think that a reasonable and prudent driver can say his or her ABC's?

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