AD2 order dated March 6, 2012, affirming judgment of conviction. Decision below: 93 A.D.3d 677, 941 N.Y.S.2d 163. Pigott, J., granted June 27, 2012.

ISSUES PRESENTED: (1) Whether a testifying defendant may be cross-examined, consistent with Sandoval, about the underlying facts of a recent conviction still on appeal. (2) The trial court’s refusal to admit defendant’s 911 call into evidence as an excited utterance. (Assigned counsel: DeNice Powell and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006.)

Issue before the Court: Did the court violate defendant’s Fifth Amendment privilege against self-incrimination when it permitted the People to cross-examine him about the underlying facts of a rape conviction that was on direct appeal. As a result of this Sandoval ruling, the defendant did not testify to his justification defense.

Held: Extending Betts, the Court holds that because the appeal was pending, the defendant remained at risk of self-incrimination until he exhausted that appeal. Any testimony elicited on cross could be used against him at a new trial. "Taking the Fifth," was not a solution as it would be prejudicial and problematic.

CAL Observes: In a threshold ruling, and contrary to the Appellate Division, the Court of Appeals finds that defense counsel adequately preserved the issue by objecting after the People rested but before closing arguments, as the court still had an opportunity to change its ruling. Given that we generally consider the Court of Appeals extremely exacting with respect to preservation, this suggests a flexibility and common sense view worth bearing in mind. Substantively, the Court’s ruling could have broader impact. Some DOCCS programs (sex offender programs come to mind) require the offender to admit guilt or responsibility in order to receive a benefit. For clients whose convictions are on direct appeal, defense lawyers can use Cantave to argue that requiring such admissions violates the defendant’s right against self-incrimination. Cantave could also be invoked to protect a defendant’s refusal to admit guilt at sentencing after trial.