        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1370
KA 11-00316
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEREMY SNYDER, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

JEREMY SNYDER, DEFENDANT-APPELLANT PRO SE.

JEFFREY S. CARPENTER, ASSISTANT DISTRICT ATTORNEY, HERKIMER (JACQUELYN
M. ASNOE OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered January 14, 2011. The judgment convicted
defendant, upon a jury verdict, of rape in the first degree, rape in
the second degree and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and as a matter of discretion in the
interest of justice and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, rape in the first degree (Penal
Law § 130.35 [1]). Prior to trial, defendant sought a Sandoval ruling
precluding the prosecutor from questioning him concerning three prior
convictions if he were to testify at trial, including a conviction of
sexual abuse in the first degree based upon acts occurring more than
nine years prior to trial. With respect to that conviction and
defendant’s subsequent conviction for failure to comply with the
requirements of the Sex Offender Registration Act (Correction Law §
168 et seq.), County Court ruled that the prosecutor could ask
defendant “if he was convicted of two felonies since the date of [an
earlier] conviction without mentioning either one of those, because of
the fact that they do relate to the two charges that are presently
before the Court,” i.e., rape in the first and second degrees. During
cross-examination, defendant testified that he had moved out of the
residence that was the scene of the crime because he did not approve
of the activities that were taking place there. The prosecutor asked
defendant if he “didn’t approve, because [he was] generally a law-
abiding person,” and defendant replied that “[n]obody’s perfect, sir.
We all make mistakes.” The prosecutor then asked “[d]oes that mean
yes, you are generally a law-abiding person, or otherwise,” and
defendant replied “[f]or the past three years of my life, yes, sir.”
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                                                         KA 11-00316

The prosecutor thereupon elicited testimony from defendant that he
would never harm a teenager such as the victim, and that he would
never force himself upon another person sexually. Finally, the
prosecutor was permitted to ask, over objection, whether defendant had
been convicted of sexual abuse in the first degree. We agree with
defendant that the prosecutor violated the court’s Sandoval ruling.
Consequently, we reverse the judgment of conviction and grant a new
trial.

     Initially, we note that defendant failed to preserve for our
review his contentions that the prosecutor violated the court’s
Sandoval ruling with respect to the earlier questions in the above
line of inquiry (see CPL 470.05 [2]), although, as noted, he objected
to the latter question. We exercise our power to review the merits of
his contentions with respect to the earlier questions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     The prosecutor, despite the court’s Sandoval ruling, asked a
series of general questions regarding prior bad acts by defendant, and
then questioned him specifically regarding the precluded prior
conviction. The Court of Appeals has long “recognized that the
‘cross-examination with respect to crimes or conduct similar to that
of which the defendant is presently charged may be highly
prejudicial’ ” (People v Smith, 18 NY3d 588, 593, quoting People v
Sandoval, 34 NY2d 371, 377), and indeed the court precluded
questioning regarding the prior sexual conviction to obviate any such
prejudice. The prosecutor’s initial questions with respect to whether
defendant led a law-abiding life were in violation of the court’s
Sandoval ruling, which limited the prosecutor to asking certain
specific questions about defendant’s prior convictions. The
prosecutor circumvented that ruling by asking the general questions,
and he then used defendant’s responses as the basis for asking
specific follow-up questions that elicited testimony regarding the
precluded sexual abuse conviction. Contrary to the People’s
contention, defendant did not open the door to questioning on the
subject of his prior sexual abuse conviction (cf. People v Rios, 166
AD2d 616, 618, lv denied 77 NY2d 842). A defendant opens the door to
cross-examination concerning previously-precluded evidence where,
inter alia, “defendant’s testimony was meant to elicit an incorrect
jury inference” (People v Cooper, 92 NY2d 968, 969). Here,
defendant’s testimony that he had been a law-abiding citizen for the
last three years was, at “best, ambiguous and cannot fairly be
construed, as the People urge, as assertions by defendant that he had
not previously committed” the crime of sexual abuse approximately nine
years earlier (People v Moore, 92 NY2d 823, 825). Moreover, although
defendant later testified that he would never harm a teenager such as
the victim and that he would never force himself upon another person,
the questions that elicited those responses were in violation of the
court’s Sandoval ruling. The People may not elicit a general
statement by asking questions that violate the Sandoval ruling for the
sole purpose of circumventing that ruling. The court therefore erred
in concluding that defendant opened the door to questioning about the
prior sexual abuse conviction (cf. People v Ramirez, 60 AD3d 415, 416,
lv denied 12 NY3d 928; People v Santmyer, 231 AD2d 956, 956; People v
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                                                         KA 11-00316

Mays, 187 AD2d 535, 535, lv denied 81 NY2d 843).

     Defendant also contends that the indictment was jurisdictionally
defective because it failed to specify the date upon which the crimes
alleged in the indictment occurred. We reject that contention. The
indictment alleged that the rape and endangering the welfare of a 13-
year-old girl occurred during November 2008. The four-week time
period alleged is reasonable under the circumstances (see People v
Coapman, 90 AD3d 1681, 1682, lv denied 18 NY3d 956; People v Aaron V.,
48 AD3d 1200, 1201, lv denied 10 NY3d 955; People v Risolo, 261 AD2d
921, 921-922).

     Defendant further contends that the court erred in refusing to
subpoena certain records regarding counseling received by the victim.
Inasmuch as the judgment of conviction must be reversed, we direct
that the court conduct an in camera review of the records to ascertain
whether they relate to the crimes charged in the indictment (see
generally People v Tissois, 72 NY2d 75, 77-78; People v Gissendanner,
48 NY2d 543, 549-550).

     Contrary to defendant’s contentions in his pro se supplemental
brief, the evidence is legally sufficient to support the conviction
(see generally People v Bleakley, 69 NY2d 490, 495) and, viewing the
evidence in light of the elements of the crimes as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). In view of our determination to reverse
the judgment and grant a new trial, we do not address defendant’s
remaining contentions, including those raised in his pro se
supplemental brief.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
