Tuesday, October 17, 2006

CA: Sandoval error subject to harmless error analysis

People v Grant, 2006 NY Slip Op 07394 [available here]

Where the "evidence of a defendant's guilt [is] overwhelming" and "there is nothing to which he could legitimately have testified that might have been believed by a jury", any Sandoval error will be considered harmless on appeal. So says the Court of Appeals in People v Grant,a decision handed down today. This is a continuation of the "really guilty man" flavor of harmless error analysis that started back in the Court's Wardlaw decision (holding denial of a defendant's right to counsel at suppression subject to harmless error analysis). In Grant, the Sandoval error could not have been more egregious; at defendant's trial for criminal contempt, the trial court ruled "that should defendant testify, the People would be permitted to impeach him by mention of his six prior criminal-contempt convictions." (Grant, 2006 NY Slip Op 07394.) Defense counsel then placed on the record that defendant would not be testifying because of the trial court's Sandoval ruling. The Court of Appeals agreed that the Sandoval ruling was erroneous, but found it to be harmless in this case. From the Court's decision:

We now hold explicitly [that] Sandoval error is properly subject to harmless-error analysis. At the outset, we note that although defendant claims that his constitutional right to testify in his own behalf was violated by the Court's Sandoval ruling, he never raised any constitutional claim before the trial court, thus failing to preserve this contention for our review. Accordingly, his current claim must be reviewed under the standard applicable to nonconstitutional harmless error. Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred. [...]

If, in a particular case, the factfinder is deprived of no significant material evidence, then the defendant has not been denied a fair trial and reversal of the conviction would serve no jurisprudential purpose. Assuming that the trial court here abused its discretion, we agree with the Appellate Division that any error was harmless, since defendant's decision not to testify did not deprive the jury of any 'critical information'. [...] The evidence of defendant's guilt was overwhelming. [...] Although defendant states in the abstract that he was "the sole source of his defense," he proffers no hint that he actually had any creditable defense, and offers no suggestion as to what it might have been. Plainly, on this record, there is nothing to which he could legitimately have testified that might have been believed by a jury.

(Id. at __.)

Judge R.S. Smith dissented, stating simply "I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be 'harmless.' [...] To hold that interference with the defendant's right to testify may be overlooked because of his failure to make a 'proffer' that the trial court finds 'creditable' is to sanction a trespass by the court on the jury's province that is not consistent with the way our system works." (Id. at __ [SMITH, J., dissenting].)

The upshot of this decision is that trial defense counsel must do at least two and preferably three things to even give his or her client a shot of obtaining meaningful appellate review of a trial court's Sandoval ruling: 1) put on the record that the defendant's decision not to testify was based on the trial court's Sandoval ruling, 2) make at least a limited proffer of defendant's testimony, and 3) put on the record that the trial court's Sandoval ruling is depriving defendant of his Constitutional right to present a defense and testify on his own behalf. That last one is critical, because it will (hopefully) trigger the stricter standard of harmless error review applicable to constitutional error (i.e. the reviewing court will have to find the Sandoval error harmless beyond a reasonable doubt).

And of course, in the Fourth Department a defendant must object to the trial court's "ultimate" Sandoval ruling to even preserve the issue for review in the first place. (See People v Mc Millon, 2006 NY Slip Op 06993 [available here].)