People v Cross, __ AD3d __ [3d Dept 2006] [available here]
In a decision handed down last Thursday, the Third Department held "that defendant is entitled to a new trial because County Court withheld its Sandoval determination until after the People had rested." (People v Cross, __ AD3d at __.) From the decision:
Here, despite defendant's pretrial motion and counsel's request for a ruling before opening statements, County Court did not address the Sandoval issue until after the People rested. By that time, defendant had presented an opening statement and cross-examined all of the prosecution witnesses, committing himself to a defense strategy that would appear to require defendant's testimony. After the court's Sandoval ruling, defendant declined to testify. Because the defense strategy may well have been different if the court had issued its Sandoval ruling before the trial began, we feel constrained to reverse and grant defendant a new trial.
(Id at __.)
I'm not sure how useful this decision will be--most trial courts rule on any Sandoval application before opening statements. But, not a bad arrow to have in your quiver if the situation calls for it. Also, the "defense strategy may well have been different" language could be useful for appellate defense attorneys who can raise a valid Sandoval issue but are faced with a harmless error problem.
Some other decisions of note from the Third Department's January 26 packet of decisions:
People v Jackson, __ AD3d __ [3d Dept 2006] [available here]
The defendant on direct appeal argued that his sentence was illegal because it was not "capped" pursuant to CPL section 70.30. The Court held that a direct appeal was not the proper vehicle for addressing the "cap" issue: "[t]he calculation of the aggregate sentence for consecutive sentences such as those involved here is generally done by the Department of Correctional Services, and any alleged error may be challenged in a proceeding pursuant to CPLR article 78." (Jackson, __ AD3d at __ [citations omitted].)
People v Blair, __ AD3d __ [3d Dept 2006] [available here]
The Court agreed with defendant that his kidnapping charges should have merged with the other charges: "[h]ere, defendant attempted to push the victim a very short distance and grabbed her legs, restraining her momentarily before she got away. The only evidence is that he assaulted her while he attempted to force her into the wooded area to kill her. Inasmuch as the abduction was both minimal and part of the assault and attempted murder, the merger doctrine applies and necessitates reversal of defendant's conviction of the crime of attempted kidnapping in the second degree." (Blair, __ AD3d at __.)