In a recent case involving the possession of a weapon by a convicted felon, the Appellate Division was required to analyze the waiver of a defendant’s right to testified in consecutive trials.

The government’s accusations related to the defendant’s possession of a weapon as a felon. The factual core of the case related to a controversy involving a group of people where defendant slapped two women. At a later confrontation, defendant sought to apologize to the two women. While walking away, however, he waved a gun.

The case was bifurcated into two trials. The first trial related to the question of whether defendant was in possession of the weapon for an illicit purpose. The second trial was to establish whether he was in possession of the weapon as a convicted felon.

At the first trial, the court determined that the slap to the two women would be put into evidence to establish the defendant’s motive for bringing the weapon to the second confrontation. The defendant later waived his right to testify at trial because of a ruling from the trial judge that allowed the government to cross-examine him about his prior convictions, if he testified.

At the second trial, defendant opted to testify.  At that point, the trial judge determined that defendant could not testify because he had already given up his right to testify in the first trial. The defendant was convicted of both offenses.

On appeal, the court noted that the trial judge precluded defendant from testifying at the second trial because he was under the incorrect assumption that the second trial was merely a subsequent phase of the first trial. Resultantly, the court concluded that the trial judge’s decision to prevent defendant from testifying at the second trial was erroneous. Although the Appellate Division sustained the possession of weapons offense subject to the first trial, it reversed the jury verdict in the second trial and ordered a new trial.