| People v Maier |
| 2010 NY Slip Op 07196 [77 AD3d 681] |
| October 5, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EricMaier, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan and Michael Blakey ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered March 31, 2008, convicting him of criminal possession of a controlled substance in the fourthdegree and failure to stop at a stop sign, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the County Court,Suffolk County, for a new trial.
Under the circumstances of this case, the defendant's motion to dismiss the indictment on theground that he was not afforded the opportunity to testify before the grand jury, and that he wasdeprived of the effective assistance of counsel in that respect, was properly denied (see CPL210.20 [1] [c]; 210.35 [4]; 190.50 [5] [a]; People v Simmons, 10 NY3d 946, 949 [2008]; People vWiggins, 89 NY2d 872, 873 [1996]; People v Helm, 51 NY2d 853 [1980]; People v Lasher, 74 AD3d 1474[2010]).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
A new trial is required, however, because the cumulative effect of certain trial errors deprived thedefendant of a fair trial (see People vRoll, 1 AD3d 617 [2003]; People v Vasquez, 120 AD2d 757 [1986]). During anautomobile stop for failure to obey a stop sign, the arresting police officer detected the odor ofmarijuana emanating from the defendant's car, and observed, in plain view, objects that the officerbelieved to be a marijuana cigarette and a "crack pipe." A subsequent search of the defendant's personrevealed an unmarked bottle containing pills later determined to contain a narcotic, prescription drug, aswell as a small bag containing a substance the officer believed to be marijuana. After placing thedefendant in his police vehicle, the officer returned to the defendant's vehicle and found three bags ofwhat the officer believed to be marijuana. The defendant was not charged with respect to the marijuanaor the "crack [*2]pipe," but was charged with criminal possession of acontrolled substance in the fourth degree with respect to the narcotic, prescription drug. At trial, thedefendant's mother testified that she had been driving the defendant's car earlier in the day, that she hadplaced a certain number of narcotic pills for which she had a valid prescription in the unmarked bottle incontemplation of a trip she was taking that evening, and that she had inadvertently dropped the bottleon the floor of the defendant's car. According to the defendant's mother, the defendant was unaware ofthe contents of the pill bottle.
Contrary to the People's contention, the evidence that the police officer recovered a "crack pipe"and what appeared to be marijuana from the defendant's person, as well as what appeared to be amarijuana cigarette and three bags of what appeared to be marijuana from the defendant's car, was notproperly admitted to "complete the narrative" or to explain the police officer's conduct (cf. People vTosca, 98 NY2d 660 [2002]; People v Till, 87 NY2d 835, 837 [1995]; People v Jenkins, 49 AD3d 780[2008]). Significantly, the defendant did not place the propriety of the police action in issue, nor did hedispute that he possessed the narcotics. Under these circumstances, the evidence of the unchargedconduct was not needed to "sort out ambiguous but material facts" (People v Resek, 3 NY3d 385, 390 [2004]; see People v Wilkinson, 71 AD3d 249[2010]; People v Foster, 295 AD2d 110, 112-113 [2002]). Moreover, even if the evidencehad been probative of an issue other than the defendant's criminal propensity to commit the crimecharged, such limited probative value would have been outweighed by the prejudicial impact of thetestimony (see People v Resek, 3 NY3d at 389; People v Foster, 295 AD2d at112-113). Accordingly, admission of the evidence of the uncharged conduct was error.
The County Court also erred in allowing the prosecutor, over objection, to inquire of a defensewitness whether the defendant was always "truthful," and then to impeach that testimony by questioningher about criminal complaints she had made against him. The defendant, who did not testify at trial,never put his credibility in issue, and the defense witness was offered as a fact witness, rather than as acharacter witness. Accordingly, it was improper to permit the prosecutor to question the witness as tothe defendant's truthfulness or as to his prior bad acts (see People v Cruz, 47 NY2d 838[1979]; People v Jones, 278 AD2d 246 [2000]).
The County Court further erred in permitting the prosecutor to elicit testimony from the arrestingofficer, over defense counsel's objection, that the defendant did not provide the officer with certain factsupon the police officer's recovery of the narcotics and the defendant's arrest. "Based on constitutionalconsiderations, it has long been and continues to be the law in this State that a defendant's silencecannot be used by the People as a part of their direct case" (People v Spinelli, 214 AD2d 135,138 [1995]; see People v Basora, 75 NY2d 992, 993 [1990]; People v Nelson, 69 AD3d 762[2010]).
Contrary to the People's contention, these errors cannot be deemed harmless (see People vCrimmins, 36 NY2d 230 [1975]).
The defendant's remaining contentions either are without merit or need not be reached in light ofour determination. Skelos, J.P., Angiolillo, Hall and Lott, JJ., concur.