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A criminal defendant will be resentenced because his prior conviction used by prosecutors to impeach him as a witness at trial has been overturned on Fourth Amendment grounds. Addressing an issue that has split federal appellate courts, a New York County Supreme Court justice said that use of the prior conviction in the sentencing phase of trial, because it was overturned later, tainted the prosecution so much that it required a new sentencing for the defendant. Justice John Cataldo’s ruling throws out a sentence of 20 years to life imprisonment for a drug-selling conviction. In People v. Manny Cabassa, 11646/91, Cataldo said that prior convictions overturned for Fourth Amendment reasons provide grounds for overturning convictions if they are used subsequently for impeachment purposes. In Cabassa, the defendant pleaded guilty to drug sales, and the case went to the sentencing phase. The trial court ruled that defendant Manny Cabassa could be cross-examined as to the fact of a prior federal conviction for drug dealing, even though his defense lawyer argued that the validity of the conviction was still at issue in the federal courts. The prosecution relied on the fact of the federal conviction in its sentencing request to the court. After Cabassa was handed the 20 years to life sentence based partly on the prior federal conviction, that conviction was overturned on the ground that evidence in the case was seized in violation of Cabassa’s Fourth Amendment rights. It is settled law that convictions overturned for Sixth Amendment reasons, such as the denial of the right to effective counsel, cannot be used for any purpose in a subsequent trial. But the federal appeals courts are split on whether the same reasoning applies when the prior conviction is dismissed on Fourth Amendment grounds. Prosecutors pointed to United States v. Penta, 475 F2d 92 (1st Cir. 1973) for the proposition that a prior conviction used for impeachment purposes does not taint the trial result. Since the exclusionary rule, under which evidence is suppressed when it is the product of an unreasonable search or seizure, is focused on the deterrence of illegal police conduct, it does not necessarily follow from the overturned conviction that the factual guilt of the defendant is in question, the Penta court stated. QUESTIONING CONVICTIONS But Justice Cataldo agreed with the 5th U.S. Circuit Court of Appeals, which ruled in Beto v. Stacks, 408 F2d 313 (1969) that convictions invalidated on Fourth Amendment grounds are so faulty as to render invalid a proceeding in which they are used. When a prior conviction is brought into court to impeach the defendant as a witness, it should be a conviction that could stand up to constitutional muster, Cataldo concluded. Since the prior conviction carries such a powerful negative inference, its constitutional infirmity automatically affects the new trial. “A defendant’s credibility is impaired … when a jury is told of a prior conviction, whether that conviction violates the Fourth Amendment or the Sixth Amendment,” Cataldo said. “The damage is inflicted by the admission of the existence of a previous conviction alone.” Arthur H. Hopkirk of the Legal Aid Society in Manhattan was defense counsel to Cabassa. New York County Assistant District Attorney Christopher Pilkerton appeared for the prosecution.

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