New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

WHEN IT COMES TO THE FIFTH AMENDMENT, LIKE YOGI SAID, “IT AIN’T OVER TILL’ IT’S OVER.”


courthouse1

People v Cantave

2014 NY Slip Op 04723

Court of Appeals

Decided on June 25, 2013

When it comes to the Fifth Amendment like Yogi said “it aint over till’ its over.” The Fifth Amendment right to remain silent continues through appeal.

Watch A Video Explaining The Criminal Appeals Process

Summary: The Court of Appeals found that Defendant retains his Fifth Amendment right to remain silent while an appeal is pending. The trial court erred when it gave permission to the People after a Sandoval hearing to cross-examine Defendant about his recent rape conviction that was still pending on direct appeal.

Issue: Whether the trial court erred when it allowed the People to cross-examine Defendant on the underlying facts of a rape conviction that was pending on appeal and thereby violate his Fifth Amendment right to remain silent on the underlying case.

Holding: The Court of Appeals held, that a Defendant with a conviction pending on appeal may not be cross-examined on the underlying facts of another matter until direct appeal has been exhausted. This is because he retains his Fifth Amendment Right to remain silent while the appeal is pending.

Facts: Defendant Jean Cantove and Andre Elbresius were driving after Cantove asked for a ride.  Elbresius started arguing with Defendant about his unauthorized use of Elbresius spare license plate. The argument soon escalated to an altercation at Defendant’s place of business and he was charged with second-degree assault. Prior to trial, a Sandoval hearing was held and the court granted permission to the People to cross-examine Defendant about his recent rape conviction. After the defense rested, but before either side presented closing remarks, defense counsel asked the court to reconsider a Sandoval ruling at trial, specifically informing the court that the rape conviction was then “under appeal”, and asserting that the Defendant’s Fifth Amendment right against self-incrimination should preclude cross-examination.  The court said no and adhered to it’s ruling. Defendant did not testify and was convicted of third degree assault. His conviction for rape was subsequently reversed and he was acquitted at trial.

Legal Analysis: The Court of Appeals held that the prosecution may not cross-examine a defendant about the underlying facts of an unrelated criminal conviction on appeal for the purpose of impeaching his credibility. The trial court’s ruling violated the Defendant’s Fifth Amendment privilege against self-incrimination with respect to the admission of the underlying facts of the rape conviction.

The Court of Appeals noted that when a Defendant is being questioned about the facts underlying a previous conviction while it is pending direct appeal “unduly compromise the Defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself.” People v Betts 70 NY2d 295. The effect of the court’s Sandoval hearing was to prevent the Defendant’s testimony entirely. The Court of Appeals ordered a new trial and held that the prosecution may not cross-examine a defendant about a pending unrelated criminal matter for the purpose of impeaching his credibility. The Defendant was charged with third degree assault and acquitted for rape conviction.