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1
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OPINION
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EXTRACTED KEY WORDS
SANDOVAL HEARING CONVICTIONS DOKES APPELLATE COURT PRESENCE SUPERFLUOUSNESS PRIOR DRUG MEMORANDUM DEFENSE JUDGE APPELLATE DIVISION SUPREME COURT BRONX COUNTY ROBBERY ASSAULT PROSECUTOR FELONY CONVICTION MISDEMEANOR CONVICTIONS UNDERLYING ACTS NY2D HOLDING SUPRA PRIOR DRUG DEALINGS CLAIMING VICTIM JURY EXCEPTION |
THE PEOPLE &C., RESPONDENT, v. PEDRO ODIAT, APPELLANT.
82 N.Y.2d 872, 631 N.E.2d 108, 609 N.Y.S.2d 166 (1993).
December 16, 1993
1 No. 262 (1993 NY Int. 261)
Decided December 16, 1993
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Frances A. Gallagher, for Appellant.
Howard B. Sterinbach, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be modified and the case
remitted to Supreme Court, Bronx County, for further proceedings in
accordance with this memorandum, and as so modified, affirmed.
Defendant was indicted on charges of robbery in the first and second
degrees and assault in the first degree arising out of an alleged
robbery of a Bronx grocery store proprietor. At a Sandoval hearing the
prosecutor proposed to cross-examine defendant at trial on a prior
felony conviction of attempted criminal sale of a controlled substance
and two misdemeanor convictions for assault and criminal possession of
a weapon, together with the underlying acts of the convictions.
However, the prosecutor expressed some unfamiliarity with the actual
facts of those cases. The record is ambiguous as to whether defendant
was present during the hearing; there is no recital on the record that
he was present, and at one point in the hearing the court asked:
"(c)an you bring this fellow down when you get a chance?" The court
ultimately determined that the People would be permitted to inquire
whether defendant had been convicted of two unspecified misdemeanors
and the felony attempted drug sale, but not about the underlying acts
of that felony conviction.
At trial, as part of his defense, defendant testified at length about
his prior drug dealings. Claiming that he had been a cocaine seller
for 10 years and that the victim had been his supplier on 20 or 25
occasions, defendant testified that it was the victim who had
initially attacked him over an unpaid drug purchase and that he acted
in self defense. The jury acquitted defendant of the robbery counts,
but convicted him of the assault.
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