8.6 - B. General Strategic Considerations

• Jurisdiction: New York

B. General Strategic Considerations

Obviously, the main goal of both counsels at a suppression hearing is to obtain the most favorable result possible. The prosecutor wants a ruling that the evidence is admissible as evidence in chief on the People’s direct case, and defense counsel wishes to have the evidence excluded for all purposes. It should also be remembered that evidence suppressed for certain purposes may be admissible for others. Thus, a ruling following a Sandoval hearing that the prosecutor may not cross-examine the defendant about a particular conviction does not necessarily preclude the prosecutor from cross-examining another defense witness (such as a character witness) concerning that same conviction.¹⁴⁶¹ Indeed, the Court of Appeals has repeatedly held that, following a Sandoval hearing, the court has the discretion not to limit a prosecutor’s cross-examination of a defendant at trial to the mere existence of a prior conviction. The court may also permit inquiry into the facts underlying that conviction, even if those facts are similar to the crime for which the defendant is then on trial.¹⁴⁶² Moreover, a defendant’s direct examination may open the door to cross-examination concerning a previously excluded conviction. Allowing the use of prior convictions and bad acts¹⁴⁶³ “is largely, if not completely, a matter of discretion which rests with the trial courts and fact-reviewing intermediate appellate courts.”¹⁴⁶⁴ Thus, although it is impermissible in New York to use a defendant’s adjudication as a juvenile delinquent or youthful offender for impeachment purposes,¹⁴⁶⁵ it is within the trial court’s discretion to allow cross-examination about an out-of-state felony conviction that would have resulted only in a juvenile delinquent adjudication had the act occurred in New York.¹⁴⁶⁶

From defense counsel’s point of view, even if the motion is not ultimately successful, the holding of an evidentiary hearing may be of immense benefit in the defense efforts to prepare for trial. Defense counsel gets an opportunity to examine and evaluate prosecution witnesses. Witnesses’ stories can be memorialized in detail and under oath. Moreover, defense counsel can obtain prior statements and reports of hearing witnesses and notes of the prosecutor’s conferences with them.¹⁴⁶⁷

Of course, the prosecutor will be aware of the defense strategy and will try to limit defense discovery. This can be done by presenting only so much evidence as may be required and by objecting to cross-examination that attempts to delve into areas beyond the narrow scope of the hearing.

At all types of suppression hearings, the prosecutor must initially present testimony in support of the admissibility of the evidence that is the subject of the motion to suppress. Usually, most (if not all) of this testimony will come from law enforcement officers.¹⁴⁶⁸ All testimony must be under oath, but hearsay evidence is...