In People v. Grant, 2006 NY Slip Op 07394, the New York Court of Appeals concluded that harmless-error analysis applies to Sandoval errors committed by a trial court. The Court explained its holding as follows:
When an appellate court reviews the allowance as impeachment evidence of a defendant's prior convictions, the underlying issue with which to be concerned, as relevant here, is whether the apprehension of the introduction of evidence of the defendant's prior criminal, vicious or immoral conduct will undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence... The other consideration pertinent to an assessment of the prejudicial impact of admitting such evidence is, of course, whether the testimony to be elicited will have a disproportionate and improper impact on the triers of fact...
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...(Internal citations and quotations omitted).
Eric at Indignant Indigent adeptly summarized the procedural ramifications of this decision for all New York practitioners and also provided a recommendation specific to Fourth department counsel:
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].)
Judge Smith offered an eloquent dissent, asserting that a trial court's error that resulted in preventing a defendant from testifying is never "harmless":
The majority thinks the case against defendant was so "overwhelming" (majority op at 5) that nothing he could possibly have said would have led a jury to acquit him. I do not suggest that I disagree; but I do not think it is our place, or any court's place, to decide that question. 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" (majority op at 6) is to sanction a trespass by the court on the jury's province that is not consistent with the way our system works. (Emphasis added).
The italicized language reminds me of the reason that I have always been and will always be a criminal defense lawyer at heart. Without the opportunity for a fair determination of the facts by a jury of our peers, that ideal will be extinguished. Unfortunately, the Court's decision in this case appears to be a step in that very direction and for that reason, I find it to be somewhat troubling.
And, the overall tenor of the majority's decision reminds me of this quote from Alice In Wonderland: "No! No! Sentence first -- verdict afterwards". Is that truly the direction in which we're headed? I,for one, sincerely hope not.