People v. Cantave, 21 N.Y.3d 374 (2013)

A defendant may not be cross-examined in another matter about the underlying facts of a prior conviction that is pending on direct appeal because doing so violates the defendant’s Fifth Amendment privilege against self-incrimination.

Summary

Cantave was convicted of assault. Prior to his testimony, the People were granted permission to cross-examine him regarding a rape conviction that was pending appeal. He did not testify and was convicted. His rape conviction was reversed and he was acquitted on retrial. The Court of Appeals addressed whether cross-examination regarding a conviction pending appeal violates the Fifth Amendment. The Court held that it does because any testimony elicited during cross-examination could be used against the defendant in a retrial, thus creating a risk of self-incrimination, and that the trial court’s ruling effectively prevented Cantave from testifying entirely.

Facts

Cantave was charged with assault stemming from a confrontation with Elbresius. Elbresius claimed Cantave was the aggressor, biting him. Cantave claimed Elbresius attacked him with a gun, which he reported to 911.

Prior to trial, Cantave had been convicted of rape, which was pending appeal.

At the assault trial, the People were permitted to cross-examine Cantave about the rape conviction and underlying facts.

Cantave did not testify.

Cantave’s rape conviction was reversed and he was acquitted on retrial.

Procedural History

Cantave was convicted of third-degree assault in the trial court.

The Appellate Division affirmed, holding that the Sandoval issue was unpreserved and that the admission of the rape conviction was not an abuse of discretion.

The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

Issue(s)

Whether the trial court violated Cantave’s Fifth Amendment privilege against self-incrimination by allowing the People to cross-examine him about the underlying facts of a rape conviction that was pending appeal.

Holding

Yes, because a defendant remains at risk of self-incrimination until he exhausts his right to appeal and any testimony elicited during cross-examination could later be used against him at a new trial.

Court’s Reasoning

The Court of Appeals reasoned that the Fifth Amendment privilege against self-incrimination must be liberally construed in favor of the accused, and a defendant who chooses to testify does not automatically waive the right against self-incrimination regarding pending criminal charges.

The Court found that cross-examination about a conviction pending appeal is analogous to cross-examination about a pending charge, which the Court had previously prohibited in People v. Betts, 70 N.Y.2d 289 (1987). The Court in Betts held that allowing cross-examination about a pending charge “unduly compromises the defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.” Id. at 295.

The Court explained that until a defendant has exhausted his right to appeal a conviction, “he remained at risk of self-incrimination…If defendant testified in the instant case, any testimony elicited on cross-examination about the rape case could later be used against him at a new trial, which is ‘further incrimination to be feared.’”

The Court noted that while the trial court presumably would have allowed Cantave to invoke his Fifth Amendment right in response to questions about the rape case, “ ‘taking the Fifth’ is highly prejudicial as to both the instant case and the conviction pending appeal” because “[i]t exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one’s own behalf.” Moreover, a defendant would have to invoke the Fifth Amendment as to both exculpatory and inculpatory questions to protect himself, otherwise he might waive the privilege.

The Court found that the practical effect of the Sandoval ruling was to prevent Cantave’s testimony entirely.

The Court also held that the trial court did not abuse its discretion by excluding the 911 call because the tenor and timing of the call did not qualify it as an excited utterance or a present sense impression.