People of State of New York v. Roberts ( 1984 )

Mahoney, P. J.,

dissents and votes to reverse in the following memorandum. Mahoney, P. J. (dissenting). I do not agree with the majority that the trial court properly ruled that the People could cross-examine defendant with respect to a conviction for public lewdness. Initially, I see no failure by defendant to raise this matter before the trial court. Sandoval hearings are informally conducted because a defendant’s criminal record is known by the defense and the People, and the attorneys and the trial court are well aware of the factors to be weighed in making the Sandoval determination. 11 More importantly, a Sandoval determination involves a balancing of the probative value of introducing the prior crime to impeach a defendant’s credibility against the prejudicial effect of introducing the prior crime (People v Bennette, 56 NY2d 142, 147; People v Sandoval, 34 NY2d 371). This balancing is particularly sensitive when the prior crime is identical or similar to the offense charged, since the jury may improperly consider it as evidence of a defendant’s predisposition to commit the crime charged (People v Bennette, supra; People v Carmack, 44 NY2d 706; People v Caviness, 38 NY2d 227, 233). In the instant case,the prior crime of public lewdness is similar enough to the offense charged that the prejudicial effect of introducing the prior crime is obvious. Concerning the probative value, since the prior crime does not involve any element of dishonesty, the only relevance of such crime to defendant’s veracity is that it indicates a willingness or disposition by defendant to voluntarily place advancement of his individual self-interest ahead of the interest of society (see People v Bennette, supra, p 148; People v Sandoval, supra, p 377). Unlike the situation in Bennette, where the prior crime was extremely serious, i.e., the defendant had sodomized an eight-year-old girl, here the crime of public lewdness is a misdemeanor (Penal Law, § 245.00). Further, since the trial court allowed a prior conviction for aggravated burglary, thus establishing defendant’s inclination to place his interests above those of society, introduction of the public lewdness conviction would merely be cumulative on this point. Thus, the Sandoval ruling was error and, since defendant chose not to testify in his behalf, it cannot be said to be harmless. The proof of guilt is not so overwhelming that the error “paled into harmlessness” (People v Shields, 46 NY2d 764, 765), and it would be improper to speculate whether considerations other than the Sandoval ruling motivated defendant’s decision not to take the stand (id.). Therefore, the judgment of conviction should be reversed and a new trial ordered.