C. Sandoval Hearing

• Jurisdiction: New York

C. Sandoval Hearing

As a result of the enactment of Article 245 of the CPL, the defendant will promptly receive a copy of the accused's criminal history.⁵²⁹ Upon request by the accused and prior to jury selection, the prosecutor shall notify the accused of all specific instances of an accused's prior uncharged criminal, vicious or immoral conduct of which a prosecutor has knowledge and which the prosecutor intends to use at trial for the purposes of impeaching the credibility of the accused, if the accused chooses to testify.⁵³⁰ The accused must be present at the Sandoval hearing.⁵³¹

At a Sandoval hearing, the court will decide whether the accused's prior convictions and bad acts will be admissible to impeach the accused on cross-examination.⁵³² The hearing must occur prior to selection of the jury, and the accused has the burden of demonstrating by a preponderance of the evidence that the prejudicial effect of permitting cross-examination of those acts outweighs the probative value.⁵³³

After a Sandoval hearing, the court, using its discretion, will decide the permissible scope of cross-examination.⁵³⁴ The court should consider the following factors:

1. Whether a particular act is probative of a willingness on the part of the accused to put his or her interests above those of society.⁵³⁵

2. Whether the prior bad act was a result of an addiction or uncontrolled habit.⁵³⁶

3. The age of the accused at the time of the prior offense. The general rule is that youthful offender adjudications may not be brought out at trial, although the accused may be questioned on the underlying act, in the discretion of the court.⁵³⁷

4. Whether the prior offense is too similar to the offense charged.⁵³⁸ However, the fact that the prior act is similar to the crime charged does not insulate the accused where he or she "specializes" in one type of criminal activity.⁵³⁹

Sandoval only applies to the cross-examination of defendants, not witnesses.⁵⁴⁰

In People v. Bermudez,⁵⁴¹ the court created a Sandoval compromise. The accused was charged with robbery and moved to preclude the use of prior robbery convictions against him. The court allowed the prosecution to ask the accused only whether he had been convicted of prior offenses. The purpose of the compromise was to allow the accused to give testimony, while not allowing him to testify with an "unblemished" record.⁵⁴²

The court must carefully monitor cross-examination regarding the use of aliases, false dates of birth and false Social Security numbers on charges that are precluded under Sandoval.⁵⁴³ But the accused can be questioned about the use of an alias on prior bad acts that the court allows under Sandoval and on the instant case.⁵⁴⁴

Cross-examination as to the underlying charges in a pending indictment is permissible. But the accused is entitled to a pretrial ruling, based on the assertion of the privilege against self-incrimination, precluding the prosecution from cross-examining as to pending unrelated criminal charges.⁵⁴⁵ Where the accused's testimony opens the door and makes those charges relevant, questioning will be allowed.⁵⁴⁶

As noted above, the Sandoval rule only applies to the accused; it cannot be applied to any other witness.⁵⁴⁷ However, the trial court has the discretion to regulate the cross-examination of a mere witness, concerning the witness's prior misdeeds.⁵⁴⁸ The Sandoval rule precludes the use of prior bad acts by the prosecution only. In a joint trial, if a codefendant takes the witness stand, counsel may cross- examine him or her about prior convictions or bad acts.⁵⁴⁹ The court, on request, must instruct the jurors that they are to consider evidence of the accused's prior conduct only on the issue of credibility.⁵⁵⁰

The court deciding the Sandoval issue may preside over the trial, whether it is tried by jury or by the court.⁵⁵¹

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^[529] CPL §§...