AD3 order dated May 14, 2015, affirming judgment of conviction. Decision below: 128 AD3d 1181, 9 NYS3d 458, Lippman, Ch., J., granted leave December 28, 2015.

ISSUES PRESENTED: (1) Whether the court’s erroneous Sandoval ruling that defendant could be cross-examined about a juvenile delinquency adjudication, which kept him off the stand, was harmless in light of the overwhelming proof of guilt. (2) The validity of the defendant’s Antommarchi waiver. (Assigned counsel: Mitch Kessler, 63 Pike Creek Drive, Cohoes, NY 12047.)

Issue before the Court: What does it take for defense counsel to preserve a Sandoval error?

 

Held: Defense counsel, by not objecting to the court’s Sandoval ruling after the court had issued it, failed to preserve the issue.

 

CAL Observes: The Marquess of Queensberry rules on the proper preservation of Sandoval issues seems to befuddle trial attorneys, even if they are not that complicated.  Typically, the court will hold a Sandoval hearing around the start of voir dire.  The prosecutor lays out what prior convictions/bad acts she want to cross-examine the defendant about; defense counsel objects to what the prosecutor proposes; and then the court issues a ruling, usually a compromise.  To preserve any Sandoval error in the ruling, defense counsel then has to object–meaning after the ruling.  And specifically state at that time what was wrong with the ruling.  What defense counsel said prior to the ruling doesn’t count.  (There is an exception to that preservation requirement, but that will not be explained here, as defense lawyers should not rely on it.  Object after the ruling.)