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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Angel MORALES, Appellant.

Decided: September 08, 2003

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, SANDRA J. FEUERSTEIN and THOMAS A. ADAMS, JJ. Laura R. Johnson, New York, N.Y. (Joseph D. Jean, Meredith Schaum, and David Crow, of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Cynthia Kean of counsel), for respondent.

The defendant was convicted of burglary in the second degree and related offenses.   On appeal, he argues that reversal is mandated under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 and its progeny (see e.g. People v. Dokes, 79 N.Y.2d 656, 584 N.Y.S.2d 761, 595 N.E.2d 836) because he was denied his right to be present during that portion of a purported Sandoval hearing at which the admissibility of alias evidence was approved by the court.   We disagree and vote to affirm.

Prior to jury selection, the court issued its Sandoval ruling. The record reflects that the court began the Sandoval hearing by requesting the defendant's so-called “rap sheet” in the presence of counsel and the defendant.   After examining the rap sheet, the court adopted a Sandoval compromise and held that the People could impeach the defendant's credibility by questioning him about all prior adult convictions, without going into the underlying facts.   After some discussion, it was agreed that there were three felony and five misdemeanor convictions available for impeachment purposes.   The defendant's lengthy rap sheet also indicated his prior use of two aliases-Jose Rivera and Angel Maldonado-although no mention of alias evidence was discussed on the record at the Sandoval hearing.   Several days later, the subject of aliases was raised by defense counsel during the following exchange:

“[DEFENSE COUNSEL]:  Judge * * * I believe yesterday the People did the Sandoval-or Thursday, that was not put on the record with respect to my client's aliases, but my client was not present when that happened and I think that-

“THE COURT:  I allowed the prosecution to bring it in.

“DEFENSE COUNSEL:  Yes, Judge, but my client was not present.   I explained to him, but I think it should be on the record, he understands that the prosecutor has different names in the past, he may cross-examine him about those names.   And, I think that defense is entitled to know what names.   You don't have to do it now but before-

“THE PROSECUTOR:  Objection.

“THE COURT:  Does that take care of everything?

“(No response).”

Just prior to the commencement of trial, the People sought a ruling as to whether they could introduce evidence concerning the thoroughness of the investigation which identified a fingerprint lifted from a crime scene as that of the defendant.   Such evidence would necessarily reveal the defendant's past criminal history because the technician who made the positive comparison used prints taken as the result of an arrest where the defendant used an alias.   The court, noting that the defendant had already indicated his intention to testify on his own behalf and acknowledge a criminal history, and that he had already informed the jury panel of his criminal history during voir dire, permitted the People to introduce any evidence “appropriate to show the thoroughness of the investigation procedure.”

The jury was then brought in and the trial commenced.   During the People's direct case, testimony concerning the fingerprint investigation, which revealed prior arrests and the use of aliases, was admitted without objection.   After the People rested, the defendant testified on his own behalf and admitted to his eight prior adult convictions.   Upon cross-examination, he was questioned, without objection, concerning his use of the aliases Jose Rivera and Angel Maldonado during several of the prior arrests.   The arrests correlated to convictions that were included within the eight adult convictions admitted by the defendant during his direct testimony.

In general, a defendant has the constitutional right to be present at all “core” proceedings of a trial (People v. Sprowal, 84 N.Y.2d 113, 117, 615 N.Y.S.2d 328, 638 N.E.2d 973).   A defendant also has a broader statutory right to be personally present during trial, which includes not only “core” proceedings, but also any ancillary proceedings that are a “material stage” of the trial, i.e., proceedings in which a defendant's presence could have “a substantial effect on [his or her] ability to defend against the charges” (People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050;  People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784;  see also People v. Sprowal, supra at 117, 615 N.Y.S.2d 328, 638 N.E.2d 973;  People v. Morales, 80 N.Y.2d 450, 591 N.Y.S.2d 825, 606 N.E.2d 953;  CPL 260.20).  “In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position” (People v. Dokes, supra at 660, 584 N.Y.S.2d 761, 595 N.E.2d 836).   The Court of Appeals has held that a defendant has the statutory right to be present during the Sandoval hearing (see People v. Sprowal, supra at 117, 615 N.Y.S.2d 328, 638 N.E.2d 973;  People v. Dokes, supra at 660, 584 N.Y.S.2d 761, 595 N.E.2d 836).   The purpose of a Sandoval hearing is to provide the defendant with an advance ruling on whether the People will be permitted to cross-examine him or her about particular criminal (charged or uncharged), vicious, or immoral conduct for the purpose of impeaching credibility should he or she testify at trial (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, supra [although described as a hearing, a Sandoval hearing is generally little more than a brief colloquy between the court and counsel] ).   The defendant's absence during the Sandoval hearing, unless his or her presence was validly waived or would have been “superfluous,” mandates reversal and a new trial, even in the absence of a timely objection (see People v. Michalek, 82 N.Y.2d 906, 609 N.Y.S.2d 172, 631 N.E.2d 114;  People v. Dokes, supra ).   A defendant's presence is superfluous when the court's Sandoval ruling is “wholly favorable” to the defendant (People v. Michalek, supra at 907, 609 N.Y.S.2d 172, 631 N.E.2d 114;  see People v. Favor, 82 N.Y.2d 254, 267, 604 N.Y.S.2d 494, 624 N.E.2d 631;  People v. Odiat, 82 N.Y.2d 872, 609 N.Y.S.2d 166, 631 N.E.2d 108).   Here, the defendant relies on this line of cases in support of his argument for reversal.   However, his argument is without merit.

Impeachment with Alias Evidence

 Initially, we note, although clearly advisable, neither the Court of Appeals nor this court has ever expressly held that the admissibility of alias evidence for impeachment must be addressed at a Sandoval hearing at which the defendant is present and that the failure to do so constitutes per se reversible error (see People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Brazeau, 304 A.D.2d 254, 759 N.Y.S.2d 268 [holding that it is not error];  People v. Rodriguez, 268 A.D.2d 446, 702 N.Y.S.2d 313).   Moreover, even applying a Sandoval analysis to the admission of the alias evidence used for impeachment here, reversal is not warranted.

The defendant was present during the Sandoval hearing at which his rap sheet setting forth the aliases used for impeachment was scrutinized, and the Supreme Court rendered its Sandoval ruling which permitted questioning concerning all of the defendant's prior adult criminal convictions.   Because the aliases used for impeachment correlated to and were inextricably intertwined with such convictions, cross-examination concerning the same was implicit in the court's Sandoval ruling.   Thus, the defendant was afforded an opportunity for meaningful participation in the proceeding at which the court determined the admissibility of the prior crime evidence used for impeachment (see People v. Dokes, supra at 660, 584 N.Y.S.2d 761, 595 N.E.2d 836).   Had there been an error concerning the aliases, the time to speak was during the Sandoval hearing.   The defendant failed to do so.   We note that the defendant did not and does not deny the accuracy of the aliases used for impeachment.   In fact, as to the alias Jose Rivera, the defendant candidly admitted at trial that it was the name of his cousin, and that he had used the name in an effort to “get slick” and “beat the system.”   Consequently, it would elevate form over substance to order a new trial merely because the court failed to expressly address the use of alias evidence for impeachment.

Fingerprint Evidence

 The alias evidence related to the fingerprint lifted at the crime scene was not offered to impeach the defendant's credibility.   Rather, the evidence was offered to establish the thoroughness of the investigation which led to the identification of a fingerprint as that of the defendant.   Thus, the testimony was offered to establish the defendant's guilt of the crimes charged and does not implicate a Sandoval analysis.   Indeed, the Court of Appeals has expressly recognized that the admission of alias evidence does not necessarily implicate a Sandoval analysis (see People v. Walker, 83 N.Y.2d 455, 611 N.Y.S.2d 118, 633 N.E.2d 472, supra;  People v. Sandoval, supra at 373 n. 1, 357 N.Y.S.2d 849, 314 N.E.2d 413).   Otherwise, the defendant did not seek to exclude or limit such evidence at trial, and did not object to the admission of the same during the People's case-in-chief.   Nor does the defendant argue any other basis for finding error in the admission of the evidence on appeal.

The defendant's remaining contentions lack merit.

Accordingly, the judgment is affirmed.

ORDERED that the judgment is affirmed.



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