| People v Nicholas |
| 2015 NY Slip Op 06269 [130 AD3d 1314] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael A. Nicholas, Appellant. |
Cheryl Coleman, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered September 6, 2013, upon a verdict convicting defendant of thecrimes of criminal sale of controlled substance in the third degree and criminalpossession of a controlled substance in the third degree.
Following his alleged sale of crack cocaine to a confidential informant (hereinafterCI) on October 9, 2012, defendant was charged with criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in thethird degree. Defendant was thereafter convicted as charged and sentenced, as a secondfelony offender, to concurrent prison terms of 12 years, plus three years of postreleasesupervision. Defendant now appeals.
We disagree with defendant's contentions that his convictions were not supported bylegally sufficient evidence and were against the weight of the evidence. Defendantprimarily maintains that the People failed to prove beyond a reasonable doubt that he wasthe person who possessed and sold the crack cocaine. He also challenges the CI'scredibility.
Scott Gillis, a police detective, testified at trial that defendant became the target of anarcotics investigation following his presence at a September 27, 2012 controlled buybetween the CI and another individual at an apartment in the Village of Hudson Falls,Washington County. Thereafter, on October 9, 2012, the CI arranged to purchase crackcocaine from defendant at the same location. After a search of the CI confirmed theabsence of contraband, he was provided with $100 of prerecorded buy money, equippedwith an audio recording and [*2]transmitting device anddropped off by Gillis a few blocks from the residence. Gillis observed the CI walk to theapartment building, although he did not see him enter the residence. According to the CI,defendant and two other men were inside the apartment at the time of the sale. After acoded discussion with defendant about prices of narcotics, the CI gave him the buymoney in exchange for a bag of crack cocaine. Gillis was able to contemporaneouslylisten to the conversation in the residence via the audio device, but he did not witness thetransaction, nor was it apparent from the recording that a drug sale had even occurred.The CI then reconvened with Gillis, turned over the bag of crack cocaine and submittedto another search, which revealed no contraband. A lab analysis of the substance in thebag confirmed that it was, in fact, cocaine. Notably, the buy money was never recoveredby law enforcement.
A verdict is legally insufficient where, viewing the record in the light most favorableto the prosecution, there is no "valid line of reasoning and permissible inferences fromwhich a rational jury could have found the elements of the crime proved beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citationomitted]). As to defendant's challenge to the weight of the evidence, given that anacquittal would not have been an unreasonable outcome, we must weigh "the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony while viewing the evidence in a neutrallight and giving deference to the jury's credibility assessments" (People v Gibson, 121 AD3d1416, 1418 [2014], lv denied 24 NY3d 1119 [2015] [internal quotationmarks and citation omitted]; seePeople v Johnson, 91 AD3d 1194, 1196 [2012], lv denied 18 NY3d 995[2012]). Here, the only direct evidence of defendant's presence in the apartment at thetime of the sale was the testimony of the CI, who not only implicated defendant in thetransaction, but also identified his voice at trial during a playback of the audiorecording.[FN1]Accordingly, the entire case hinged on the CI's credibility. Although the CI gavetestimony that was inconsistent with his grand jury testimony, received compensation forexecuting the crack cocaine purchase, worked with law enforcement on other controlledbuys for approximately five years and had an extensive criminal history, suchinformation was presented to the jury, which clearly credited the CI's testimony (see People v Richards, 124AD3d 1146, 1147 [2015], lv denied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]; People v Tisdale, 103 AD3d987, 988 [2013], lv denied 21 NY3d 1010 [2013]). Thus, we cannot say thatthe evidence was legally insufficient or that the verdict was against the weight of theevidence (see People v Wingo, 103 AD3d at 1036-1037; People v Jones, 101 AD3d1241, 1241-1242 [2012], lv denied 21 NY3d 944 [2013]; People v Heaney, 75 AD3d836, 836 [2010], lv denied 15 NY3d 852 [2010]; People v Miles, 61 AD3d1118, 1119-1120 [2009], lv denied 12 NY3d 918 [2009]).
However, we find merit in the claim that defendant was deprived of a fair trial due tothe cumulative effect of erroneously admitting evidence of prior uncharged crimes andthe improper vouching by a witness for the People. "Evidence of similar unchargedcrimes has probative value, but as a general rule it is excluded for policy reasons becauseit may induce the jury to base a finding of guilt on collateral matters or to convict adefendant because of his [or her] past" (People v Alvino, 71 NY2d 233, 241[1987]; accord People vBuskey, 45 AD3d 1170, 1172 [2007]; see People v Arafet, 13 NY3d 460, 465 [2009]). However,such evidence "may be admitted where [it] fall[s] within the recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with thecharged crimes, provide[s] necessary background or complete[s] a witness's [*3]narrative" (People v Rivera, 124 AD3d 1070, 1073 [2015] [internalquotation marks and citation omitted]; see People v Morris, 21 NY3d 588, 594 [2013]). "To beinextricably interwoven . . . the evidence must be explanatory of the actsdone or words used in the otherwise admissible part of the evidence" (People vCrandall, 67 NY2d 111, 116 [1986]; see People v Ventimiglia, 52 NY2d350, 361 [1981]). In other words, "it must be 'evidence relating directly to the crimecharged' such that 'the value of the evidence clearly outweighs any possibleprejudice' " (People v Crandall, 67 NY2d at 116-117, quoting Peoplev Vails, 43 NY2d 364, 368-369 [1977]). Before admitting evidence of prioruncharged crimes, the trial court must determine that its probative value outweighs itsprejudicial effect (see People v Till, 87 NY2d 835, 836 [1995]; People v Elmy, 117 AD3d1183, 1187 [2014]). In short, "under . . . Molineuxjurisprudence, we begin with the premise that uncharged crimes are inadmissible and,from there, carve out exceptions" (People v Resek, 3 NY3d 385, 390 [2004]).
In their Molineux proffer, the People sought to introduce evidence of aSeptember 24, 2012 meeting at the apartment among defendant, the CI and others, duringwhich defendant allegedly possessed a handgun and handled numerous bags of crackcocaine. They also included in their application the September 27, 2012 controlled buy atwhich defendant was present. County Court permitted evidence as to both events, butprohibited evidence as to the handgun and crack cocaine from the September 24, 2012event on the ground that such testimony would be too prejudicial. The court specificallypointed out that the September 27, 2012 event was not a sale involving defendant.Although the court did not elaborate, this decision reflects the requisite balancing of theprobative value of the evidence against its prejudicial effect (see People v Meseck, 52 AD3d948, 950 [2008], lv denied 11 NY3d 739 [2008]).
At trial, however, the CI testified that defendant was not only present during theSeptember 27, 2012 controlled purchase of crack cocaine, but that he had alsoparticipated in the transaction by providing the actual drugs. County Court denieddefendant's prompt motion for a mistrial, but otherwise sustained his objection and struckthis portion of the CI's testimony, without further limiting instructions to the jury. In ourview, this revelation was highly prejudicial, as it related to a recent uncharged crime thatwas nearly identical to the sale for which defendant was on trial (see People v Wallace, 31AD3d 1041, 1043-1045 [2006]; People v Foster, 295 AD2d 110, 113[2002], lv denied 98 NY2d 710 [2002]). Shortly thereafter, the CI recounted that,upon entering the apartment on October 9, 2012, he had observed defendant sitting at atable "with large amounts of heroin and crack cocaine in front of him." Although noreference to "heroin" was included in the People's Molineux proffer, or otherwisepreviously disclosed, the court overruled defendant's objection, permitting furthertestimony from the CI about the presence of heroin. Because defendant was not chargedwith possession or sale of heroin, it cannot be said that this evidence was directly relatedto or in any way necessary to explain his alleged possession and sale of crack cocainesuch that it was inextricably interwoven into the CI's narrative (see People vCrandall, 67 NY2d at 116-117; People v Ventimiglia, 52 NY2d at 361; compare People v Buchanan,95 AD3d 1433, 1435-1436 [2012], lv denied 22 NY3d 1039 [2013]; People v Torres, 19 AD3d732, 734 [2005], lv dismissed 5 NY3d 810 [2005]). Significantly, the courtdid not attempt to cure the prejudice arising from the CI's improper testimony by issuingan instruction either at the time of defendant's objection or during the jury charge (compare People v Tinkler, 105AD3d 1140, 1143 [2013], lv denied 21 NY3d 1020 [2013]; People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Leonard, 83 AD3d1113, 1117 [2011], affd 19 NY3d 323 [2012]; People v Delaney, 42[*4]AD3d 820, 822 [2007], lv denied 9 NY3d922 [2007]).[FN2]Compounding the problem, County Court had earlier denied defendant's application toredact that part of the audio recording of the October 9, 2012 event, which referenced thepricing and packaging of "dog food," a code name for heroin. By its ruling, the court wasapparently under the erroneous impression that an undercover audio recording of thetransaction in issue could not be redacted. Coming at the beginning of the recording, thiscommentary should have, and easily could have, been redacted.[FN3]
Further prejudice resulted from the People's redirect examination of Gillis, whostated that the CI was "very reliable and very trustworthy." After County Court overruleddefendant's objection, and characterized the testimony as "opinion," Gillis elaborated thatthe CI had "never given [him a] reason to not believe anything that [the CI] is telling[him]." Allowing Gillis to vouch for the CI's credibility was clearly improper (see People v Guay, 18 NY3d16, 24 [2011]; People vMcClary, 85 AD3d 1622, 1623-1624 [2011]; People v Fredrick, 53 AD3d1088, 1088-1089 [2008]; see also People v Slaughter, 189 AD2d 157, 160[1993], lv denied 81 NY2d 1080 [1993]). The effect was compounded by thePeople's summation, wherein the prosecutor surmised that law enforcement had used theCI for several years because of his reliability (see People v Oathout, 21 NY3d 127, 131 [2013]; People v Casanova, 119 AD3d976, 978-979 [2014]). While we recognize that County Court sustained defendant'sobjection, no curative instruction was issued, and we remain concerned that theprosecutor's remark amplified the effect of Gillis' improper vouching (see People vWallace, 31 AD3d at 1044).
In view of the fact that defendant was one of three people who could have sold thecrack cocaine to the CI during a transaction that was neither verbalized nor witnessed byanyone but the CI, we cannot say that the proof of defendant's guilt is overwhelming(see id. at 1043-1045), such that the errors at trial may be deemed harmless (see People v Brown, 114AD3d 1017, 1019-1020 [2014]; People v Parham, 74 AD3d 1237, 1238 [2010], lvdenied 15 NY3d 923 [2010]; see generally People v Gillyard, 13 NY3d 351, 357[2009]). Rather, it is our view that the cumulative effect of these errors depriveddefendant of a fair trial (seePeople v Wlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 871[2006]). Accordingly, we must reverse defendant's judgment of conviction and remit fora new trial. In light of this disposition, defendant's remaining contentions have beenrendered academic.
[*5] Garry, J.P., andRose, J., concur.
Egan Jr., J. (concurring). I agree that the cumulative errors identified by the majoritywarrant reversal of defendant's conviction and the remittal of this matter for a new trial.Where the majority and I part company, however, is with respect to the evidence relativeto defendant's alleged possession of heroin. To my analysis, this uncharged criminalactivity falls squarely within one or more of the recognized Molineux exceptions.Here, the confidential informant (hereinafter CI) testified that, upon entering theapartment on the day in question, he observed defendant "sitting at the table with largeamounts of heroin and crack cocaine in front of him." Such testimony, in my view, waspart and parcel of the CI's attempt to set the scene and provide context for the October 9,2012 transaction, thereby providing necessary background information and/orcompleting the CI's narrative (see People v Rivera, 124 AD3d 1070, 1073 [2015]).Hence, step one of the Molineux test was satisfied.
Although I agree that, under the particular facts of this case, the probative value ofsuch evidence was outweighed by its prejudicial effect, thereby warranting the exclusionthereof, I write separately to make clear that not every casual, off-the-cuff reference to anuncharged crime constitutes reversible error. For example, it would be neither unusualnor surprising if, during the course of a controlled buy, a CI or an undercover officerobserved additional evidence of criminal activity beyond that with which a particulardefendant ultimately was charged. Although any testimony relative to such unchargedcriminal activity indeed should be part of the People's Molineux application andmust satisfy that two-part test in order to be admitted into evidence at trial, not everyfleeting or isolated reference to uncharged criminal activity constitutes aMolineux violation, nor does the mere mention of an uncharged crime necessarilyafford a basis upon which to reverse an otherwise valid conviction. And, to the extentthat the majority's decision suggests otherwise, I disagree.
Ordered that the judgment is reversed, on the law, and matter remitted to the CountyCourt of Washington County for a new trial.
Footnote 1:Gillis testified that theCI's voice was the only voice that he could recognize from the audio recording.
Footnote 2:Notwithstandingdefendant's failure to make such a request, County Court should have providedappropriate limiting instructions to the jury (see People v Resek, 3 NY3d at 389;People v Mitchell, 112AD3d 1071, 1074 [2013], lv denied 22 NY3d 1140 [2014]).
Footnote 3:The audio recordingcontained a conversation between defendant and the CI regarding the sale of "dog food,"i.e., heroin. Defendant moved to redact those portions of the recording referring to dogfood on the basis that the jury would incorrectly infer that the coded language concernedthe crack cocaine sale with which defendant was charged. County Court denieddefendant's request and the People played the recording in full for the jury, neglecting toexplain the term at issue. Defendant was then pressed to bring out the meaning of dogfood during his cross-examination of the CI in order to ameliorate any confusionresulting from leaving the term undefined.